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Warren E. Burger: We will hear arguments next in NAACP against Claiborne Hardware. Mr. Cutler, I think you may proceed whenever you are ready. Lloyd N. Cutler: Mr. Chief Justice, and may it please the Court, the Petitioners in this case are the National Association for the Advancement of Colored People, and 91 black citizens of Mississippi. They seek reversal of a Mississippi Supreme Court judgment against all Petitioners, jointly and severally, awarding money damages and an injunction because of a civil rights boycott against white merchants in Mississippi. The Claiborne County boycott began in 1966. At that time, discrimination against black citizens was still severe. The black community, including the local chapter of the NAACP, petitioned to correct these conditions, and participated in a biracial committee appointed by the mayor of Port Gibson, the county seat. When the committee failed to satisfy these grievances, the boycott was started. Its purposes were to end racial discrimination in employment by the merchants and the local governments, and to desegregate the school system and other public facilities. In our view, this case raises two constitutional questions. One is whether a boycott of business enterprises in support of a petition for redress of civil rights grievances conducted by non-violent means, such as speeches, marches, distributing leaflets, picketing, and social ostracism, can constitutionally expose all participants to liability for a common law conspiracy and a damage judgment for all business losses caused by the boycott merely because some episodes of violence by some participants were found to be present during its course. The second is whether, even assuming the constitutionality of such a damage award, all the active participants may be perpetually enjoined from peaceful activities in further pursuit of the boycott. Speaker: Do you mean by that, Mr. Cutler, that any damage factor particularly should be focused on the particular individuals identified as connected with violence? Lloyd N. Cutler: On particular individuals, Mr. Chief Justice, and on the particular portion of the business losses resulting from those acts of violence. Yes, sir. Speaker: In other words, you are saying the particular acts, when and if identified-- Lloyd N. Cutler: Yes, sir. Speaker: --must be shown to have had this consequence on the business losses. Lloyd N. Cutler: That is correct, Mr. Chief Justice. We believe the Respondents have sidestepped both of these issues. They have virtually conceded the second issue, the injunction issue. Speaker: On that, Mr. Cutler, didn't the Supreme Court of Mississippi say that you had waived that point by failing to argue it? Lloyd N. Cutler: They said it was moot, Justice Rehnquist. We did argue against the entire judgment below on... including the injunction, on First Amendment grounds. When the Supreme Court of Mississippi said that the... we had admitted the injunction was moot, we filed a petition for rehearing saying we had not admitted that, that the injunction was still in effect, and that it was an unlawful injunction for overbreadth, and our petition for rehearing was denied, and the injunction remains in effect subject, of course, to the stay of the Fifth Circuit which will terminate when this Court has passed on this case. Speaker: So you contend you did argue the merits of the injunction in the supreme-- Lloyd N. Cutler: We say we did, and we certainly argued it on the rehearing. There would be no ambiguity about that. We argued-- Speaker: --Was there ambiguity the first time? Lloyd N. Cutler: --We argued the First Amendment invalidity of the entire judgment below in our briefs below. The Respondents have said they would be willing to delete from the injunction any restraint on peaceful boycott activities, so that seems to be out of the case. As for the first issue, they say that the Court should not pass at this time on whether the First Amendment protects the right to engage in peaceful boycott activities because in their view this boycott was not peaceful and violence was pervasive and central to its success, and to sustain this charge, they go far beyond the actual findings and conclusions of the courts below. The courts below, we say, did not find violence to be pervasive or central to the success of the boycott, and you will not find those terms or any fair equivalent in their opinions. The Mississippi Supreme Court cited 12 incidents over a period of three years to support its conclusion that "force, violence, and threats. " were "present" during the course of the boycott and were "part of the boycott activity" that contributed to its success, and that this was enough to make all active boycott participants liable at common law for all the business losses suffered by the merchants. Before I turn to those 12 incidents, I would like to outline our basic legal position in three simple points. The first is that this nation was born out of a series of colonial boycotts against British merchants in support of petitions to the British king and Parliament for the redress of grievances. The need to organize and enforce these boycotts led to the First Continental Congress, and provided the cohesion that ultimately enabled the American colonies to win their independence. These boycotts were enforced by many of the same methods of surveillance, denunciation, and ostracism used in Claiborne County, and occasionally there were episodes of violence, such as the Boston Tea Party. Thomas Jefferson, John Dickinson, and other leaders of the colonial boycotts regarded them as lawful methods of petition for the redress of grievances, while conceding that the perpetrators of unlawful acts, like the Boston Tea Party, should be held answerable for their conduct, and we maintain that this boycott was a lawful method of petition, while conceding that if any Petitioner were found to have committed or to have threatened to commit an act of violence to enforce the boycott, that Petitioner would be answerable for the proven consequences of his act. My second point is that if some acts of violence are interspersed among other peaceful acts, such as meetings, parades, speeches, and even such measures of non-violent enforcement as surveillance, denunciation, and ostracism, as was true of the enforced colonial boycotts, and we submit it is the most that was true in Claiborne County, then only those found to have committed the violent acts may constitutionally be held liable for anything, and that even they may be held only for that portion of the merchant's business losses that is reasonably attributable to those violent acts. While I suppose one could hypothesize a boycott in which no customer would have withheld his patronage, but for the violent acts of the organizers, as Justice Brennan hypothesized in the Gibbs case, so that those who committed these acts would be liable for all the business losses of the merchants, that hypothesis, we say, is very far from the facts of this case, and in the Mississippi Supreme Court, the Respondents conceded that "most of the witnesses" that they themselves had called to testify had said "they voluntarily went along with the NAACP and their fellow black citizens in honoring and observing the boycott because they wanted the boycott. " My third point is a corollary of the first two. We submit that no one may be held liable constitutionally merely for organizing or participating in a political boycott in support of a petition for the redress of grievance, or for enforcing it by non-violent means, or for continuing to support it even though some other participants have been engaging in acts of violence. Our first four Presidents, all three authors of The Federalist Papers, and many other Framers of the Constitution participated in several boycotts of precisely this kind. They believed them to be a lawful method of supporting the right of British subjects to petition for the redress of grievances, and when they adopted the First Amendment, we submit, they could not possibly have intended to exclude from its protection the very means of petition that they themselves had employed. Indeed, after the revolution, and at the very time that the Constitution was being ratified, John Jay and Alexander Hamilton were leading a boycott enforced by similar non-violent means against New York City merchants who engaged in the slave trade, and against newspapers which carried the advertisements of those merchants. I would also add that we are not... we don't think this case raises, of course, the issue of whether such boycotts are a wise political tactic, but only whether they are protected by the First Amendment, and we don't think this case presents the issue of the constitutionality of a secondary political boycott against neutral parties, even though colonial history would support that, because these merchants were deeply involved both in their own discriminatory policies and those of the city and county governments, and because the Mississippi Supreme Court adopted a theory of liability which expressly stated it didn't matter whether the boycott was primary, secondary, or anything else. Nor do we think this case presents the issue of the constitutionality of a boycott that is unrelated to a petition for the redress of grievances against the government. Now, I would like, if I could, to come back to the 12 incidents. They are summarized at Pages 28 through 33 of our main brief. In only one of those 12 incidents did the court below find that an identified Petitioner committed a violent act to enforce the boycott. In that incident, Petitioner James Bailey testified that he had trampled the flower garden of a black woman because she patronized white stores, despite his warning not to do so, as she continued to do thereafter. And the trial record shows, and this trial was... began in 1973, Mr. Chief Justice, that no one else in the town had ever heard of that incident until Bailey brought it up on the witness stand, and it could not possibly have affected the success of the boycott. Witness after witness was asked, once Bailey said this, did you ever hear of this incident, and they all said no. There were two other incidents involving acts of violence that were charged to identified Petitioners, but in neither case did the courts below make a finding that the Petitioner, any Petitioner had committed an unlawful act. Speaker: I take it, Mr. Cutler, that you are saying that a secondary consequence is not an adequate basis for recovery, that is, that this man who committed this violent act on the local resident in order to persuade her or force her into refusing to deal, that kind of a secondary consequence is not to be a basis for recovery. Is that it? Lloyd N. Cutler: No, I am not saying that, Mr. Chief Justice. If any boycott participant committed an unlawful act, be it violence or any other normal tort or crime, and that incident had the effect of persuading or coercing a substantial number of people not to participate in the boycott and therefore contributed materially to the success of the boycott, we would admit that individual is subject to liability for the proven damages of the unlawful act he committed. Speaker: But then relating it to this particular episode, that would mean only the loss of the custom of this particular woman whose garden was damaged. Lloyd N. Cutler: Except that she continued to trade at the white stores, as the testimony shows. Speaker: That evidence is undisputed? Lloyd N. Cutler: Yes. The only evidence is Bailey's evidence, and no evidence to contradict that was offered. Speaker: In other words, whatever the effort was to persuade her-- Lloyd N. Cutler: That's right. Speaker: --the record shows it did not succeed. Lloyd N. Cutler: He was asked by... Bailey was asked by Mr. Pyles, did she continue to trade at the white stores? Answer: Yes. That is in the transcript. Speaker: Mr. Gilmore, was... rather, Mr. Cutler, wasn't the Gilmore shooting incident identified with one of three of the Petitioners? Lloyd N. Cutler: The Gilmore shooting incident is the next one I am coming to, Justice Stevens. There were three... three of our Petitioners who were prosecuted and on a first trial convicted of that offense, but that conviction was reversed because of discrimination in selection of the jury. On a second trial, the jury hung, so there was no jury verdict, and neither the chancellor nor the Mississippi Supreme Court made a finding that the three Petitioners, who of course had denied in their trial any participation, had in fact committed the act. Speaker: Taking up your analogy to the Boston Tea Party, if the London merchants could identify only one of the members of the Boston Tea Party, but did identify him, and demonstrated that he had damaged one case of tea, could he be held, in your view, responsible for all the loss of tea? Lloyd N. Cutler: All the tea on the ship, yes. I think no question. And indeed, you will find in the papers of the First Continental Congress, in the so-called Address to the British People which accompanied the boycott resolution in the Continental Association, a statement that the perpetrators of the Boston Tea Party may have been guilty of a trespass, and that the courts of Massachusetts Bay were open, but instead of that, the British had responded by restricting self-government in Massachusetts Bay and passing the so-called Intolerable Acts. Speaker: Mr. Cutler, how about the threats of violence, if you trade with these stores, I will break your neck, or beat you up, or whatever it is? Lloyd N. Cutler: Let me come directly to that, Justice O'Connor. I will skip over the others of the 12 episodes. They are covered in our brief, and you will see some of them are not violent at all, and the last of them is the NAACP providing counsel to persons arrested in the course of the boycott activity, but let's go directly to the remark of Charles Evers, who was a leader of the boycott, and an NAACP local secretary at the time. There was testimony of a remark by Evers in the course of a long speech, "If we catch any of you going in any of them racist stores, we're going to break your goddamn neck. " Some of the testimony places that speech both in 1966, or that remark in 1966, when the boycott began, and also in 1969, in a speech given two days after the shooting of a black youth by a white policeman that had caused great disturbances in the town. There is no tape, film, or copy of that remark or the speech in which Evers made it in the record, but there is testimony, there is testimony, of course, as I said, and Evers has admitted making the remark, and Respondents have also relied on threats that they read into another speech that was given on April the 19th, the night after the shooting of the black youth by the white policeman, which is in the record, and on which the Respondents now rely. We urge you, Your Honors, to read that speech. It is at Page 85 of the Joint Appendix. It catches the flavor and the currency of the moment, and it graphically describes the grievances of the black citizens of Claiborne County 13 years ago. Its main thrust was to persuade the crowd not to engage in violent responses because of this shooting against the "white brothers", as Evers called them, but to persevere with the boycott. The remark, the 1969 one, at least, which is the only one there is any real proof of, was made in the emotional aftermath of the killing of that black youth by a white policeman, and you will see from the speech that is in the record how unjustified the black community thought that shooting was, but most importantly, Justice O'Connor, that there is no evidence that either of these two speeches of Mr. Evers had any effect on the boycott. The two I am speaking of, April 19th and 21st, 1969, occurred three years after the boycott began and after all the other eleven incidents described by the chancellor had occurred. They couldn't have led to those incidents, and they couldn't have had a major effect on the success of the boycott, which was already three years old. Speaker: Did the courts, state courts find to the contrary? Lloyd N. Cutler: The state court concluded that the black people had believed Evers after quoting that remark. Speaker: So the courts didn't agree with-- Lloyd N. Cutler: The court drew a conclusion that remark had had an influence, Justice White. Speaker: --Well, it made a finding of it. Lloyd N. Cutler: I am not sure you could call it a finding. Speaker: Well, it is as much of a finding as yours is. If theirs is a conclusion, yours is, too. Lloyd N. Cutler: That might... I would have to concede that, but in support of mine, there were 20-- Speaker: Well, your argument is, though, that just on the record their conclusion is unsupportable. Lloyd N. Cutler: --That is correct, but there is a duty, I believe, to which Respondents agree in cases like this for this Court to make an independent examination of the record. Speaker: Well, to what extent on a purely factual issue should we go beyond the findings of two courts? Lloyd N. Cutler: I think in almost all of these constitutional cases involving the exercise of First Amendment rights, Justice Rehnquist, the Court, this Court has gone into the record behind such findings, as in Edwards against South Carolina, and both sides conceded here that you should go into the record that way. What I want to point out is that 22 black witnesses were called by the merchants and asked about whether they had ever heard of the Evers remark about breaking necks. Sixteen of them said that they had never heard of it at all, and six said they had heard of it only in 1969, three years after the boycott began, and none of the many black witnesses called by these merchants testified as to any fear of physical violence because of the Evers speeches. The Respondents have only cited to you four instances in which anyone testified about fear of punishment or discipline, and the context of at least two of those statements shows that they were speaking of fear of denunciation and ostracism. Speaker: Mr. Cutler, what do you suppose our standards for reviewing this constitutional fact should be? Should it be clearly erroneous, or we arrive at an independent judgment of the record, or what? Lloyd N. Cutler: The words of Edwards against South Carolina are that this Court should make an-- Speaker: Independent judgment? Lloyd N. Cutler: --independent examination of the record, but I would submit to you, Justice White, that if you took the 12 episodes on the face of what the two courts below said about those episodes, the facts as they described them, you cannot conclude that what is described in those 12 episodes was pervasive or central to the success of this boycott. Speaker: Mr. Cutler, with reference to the timing that you seem to emphasize so much, is it not true that whether we look at the Boston Tea Party, or prolonged picketing in a union-employer conflict, or a situation like this, that there needs to be frequent exhortation by those sponsoring the boycott, the picketing, in order to keep it going? Isn't that a perfectly normal part of the process? Lloyd N. Cutler: I would certainly call it a normal part of the process. Unfortunately, there are times when violence becomes part of the process, and none of us are trying to defend that. The NAACP has a very long record against violence. Speaker: Well, I was focusing... wanted you to focus on the fact that some of these people heard about these statements of Mr. Evers, and some did not, and some heard of them long afterwards. There must have been a number of exhortations, including those in the record and many outside the record, to keep a boycott alive. Lloyd N. Cutler: To keep the boycott going, and there is no doubt there were threats in the sense of Justice Holmes' sense that whether a threat is unlawful depends on what it is you threaten. There were undoubtedly threats that if you went into the white store, your name would be read out in church, you would be denounced, and you would be socially ostracized. Speaker: And you say that is a First Amendment right. Lloyd N. Cutler: We say that was precisely the function of the Committees of Correspondence formed by the First Continental Congress, and it was... it is so wrapped into our history that is a... not only a boycott, but that type of enforcement of a boycott is a legitimate means of petitioning for the redress of grievances. We do not see how the First Amendment could be read to the contrary. I think I have just a couple of minutes left, Mr. Chief Justice, and I would like to save that for rebuttal. Warren E. Burger: You may reserve. Lloyd N. Cutler: Thank you, sir. Warren E. Burger: And I think we will resume at 1:00 o'clock, and not ask you to divide the argument. Mr. Rees, I think you may proceed whenever you are ready. Grover Rees, III: Mr. Chief Justice, and may it please the Court, this is a dispute about the facts. Because the facts are so important, I must deal at the outset with a matter that I do not relish getting into. Petitioners have made it an important part of their case-- Speaker: Excuse me, Mr. Rees. Is it a dispute about the facts or about the meaning of the facts? Grover Rees, III: --Well, we believe it is a dispute about the facts. We believe it is also a dispute about what the court found. We believe that Petitioners have made a number of statements in their reply brief that make it look as though we simply made false statements about the facts and about what the courts found in our briefs, particularly about the record. We will try to deal with some of these matters in the argument, and if the Court wishes to request a supplemental brief on these new statements about what is in the record, we would be very happy to supply one. Assuming that the Court does desire a supplemental brief, though, we particularly urge you not to rely on any of the Petitioners' assertions in the reply brief that things are uncontradicted in the record, because... because those things aren't uncontradicted in the record. We stand by everything that we said in our brief. Fortunately, most of the Petitioners' assertions about the record are called into question by a reading of the opinions below. The Petitioners say that the boycott was peaceful and voluntary, but the state courts found that it was violent and coercive. The Petitioners say that the NAACP never condoned violence, there is nothing in the record to suggest that they did, but the courts found that violence was in fact promised by the field secretary of the NAACP and that the black people of Port Gibson did not regard this as harmless political hyperbole. Violence was in fact delivered before, during, and after the period of time during which he made his statements. Speaker: Is there some finding about how many people heard about the field secretary's statements? Grover Rees, III: The court did not engage in the kind of factfinding that the Petitioners seem to think that they had to engage in. They didn't say, we find on Page 12-352 that so and so was scared by Evers. Speaker: What did they find? What did they find-- Grover Rees, III: Well, the statement was-- Speaker: --about the impact of Mr. Evers' statements? Grover Rees, III: --The statements that I think are most relevant in the court opinion... You have 33 pages that say the facts in the record. There are many things in there that I think are findings that they don't think are findings, but the two most relevant statements are that the field secretary of the NAACP promised physical violence on at least two occasions, and that it is evident that black people believed him. Speaker: Could you refer... are you reading from something? Grover Rees, III: Yes, that's a... well, that's a paraphrase. I can find it. Just a moment. Speaker: What page of the record? Grover Rees, III: Well, that's not on the... that's not in the record. That's in the trial court opinion. Speaker: Okay, that's in the-- Grover Rees, III: And that is... I'll get you the page in... in just a moment. That's on Page 39-B, I believe, in the appendix, in the appendix to the cert petition. Unquestionably, the word got around-- Speaker: --Mr. Rees, is it correct, though, that at least one of those two statements was in 1969? Grover Rees, III: --One was in 1966 and one was in 1969. It said at least-- Speaker: Do you rely on the one in 1969? Grover Rees, III: --Yes, we do. Speaker: For what? Grover Rees, III: Well, first of all, we rely on it as evidence to support the many other contentions in the record, that when he said things like that people were going to be disciplined, and when they were going to be chastised, and so forth, that he didn't mean that people were going to come in the middle of the night and call them bad names. Secondly, this was an ongoing-- Speaker: Did the district court take the view that that was enough? Under the district court's theory of the case, as I understood it, that would have been enough, that fear of denunciation and abuse of that kind would have been enough to... all that they had to prove. Grover Rees, III: --I think that's true, because the district court believed that a secondary boycott, even though it is for political purposes, was enough for liability. Now-- Speaker: So the district court did not have to connect the violence, did not have to prove fear of violence in order to sustain the judgment of-- Grover Rees, III: --No, they didn't, but they did. They didn't have to, but they did. They made-- Speaker: --Does the 1969 statement... I don't understand how you can rely on the 1969 statement then. Grover Rees, III: --The problem is that as the Chief Justice pointed out, there aren't many times when the leader of a group like this comes out and says, yes, I am in favor of the violence, and we ought to go ahead and do it, and there was testimony in the record from other people, from witnesses, that they heard him say that if you go into the stores, that you will be taken care of, and you will be disciplined. In his testimony he said, oh, we just meant we were going to give them a good tongue-lashing, and the Petitioners rely on that in their brief. Now, I think that the state court used that because it was the most vivid instance. The boycott did continue. In fact, it intensified in April of 1969. The fact that those particular 12 incidents... actually, we count 15 in the trial court, in three pages of the trial court's opinion, happened before that are irrelevant. The court found that on many occasions people's purchases were taken away from them, and so forth, and this was an ongoing course. The Petitioners would have you look only at those three pages in the trial court opinion, and those are the only evidentiary facts that they want to be allowed to be supported, to be supportive of the ultimate conclusion in the state supreme court's opinion that there was the agreed use of violence. We believe that the proper standard of review is that the Court should look at the whole record, should look at everything to see if there was evidence from which a reasonable trier of fact might have concluded the conclusions that the state court in fact made. You see, on the one hand, they say, well, this is just anecdotal, and this is just sporadic, but on the other hand, when the trial court ties it together and says that unquestionably many black persons had their volition overcome, and they were forced against their personal wills not to trade with the white merchants, they say, oh, well, there is really no evidence to support that, because we can distinguish all of those 12 incidents. We don't believe that is the proper standard of review. We do think that the threat is relevant both in and of itself, because he did promise to deliver violence, and that scared people. The boycott continued, and it is our contention that if the design of the boycott, if what the boycott was about was to stop people from going in the stores because they were scared that they would be beaten up and shot at and so forth, that that is enough, and that continued after April, 1969. And we think it is also very relevant to show that when he said, for instance, earlier, he said, you had better not bother to go get the sheriff, because the sheriff can't sleep with you at night, that he didn't mean that the sheriff... that people were going to come in the middle of the night and call people bad names. He meant that bad, violent things were going to happen to people. He was trying to instill fear in them, so that they would honor the boycott. Speaker: Well, is it your position that by whatever means, a boycott involves the sponsors of the boycott putting fear into some people as a predicate for damages? Grover Rees, III: Well, actually, we don't believe that. They claim in their reply brief that we concede that if it was a non-violent secondary boycott, that it was protected First Amendment activity. We don't think that the Boston... that's not true. We don't concede that. This Court's opinions, you've got different lines of opinions that would suggest different results on that issue. Certainly the labor secondary boycott opinions suggest that this activity, picketing in support of a secondary boycott, is something less than absolutely protected First Amendment activity, because if you can curtail that activity because it foments labor unrest, which was the basis-- Speaker: Even though not violent? Grover Rees, III: --Yes, even non-violent labor picketing. We don't think that it is necessary for the Court to reach that issue, because the state courts here found that it was violent, and they found that the violence was not sporadic, that it was... that it was continuous, that it was pervasive. We think that if you read the 33 pages in the trial court's opinion, where the judge says, these are the statements, the facts in the record, is what it says, that the trial judge would be very, very surprised to learn that he didn't find that violence was central to the success of the boycott. Speaker: Well, he said, unquestionably, the word got around that physical harm as well as vilification and ostracism could very well be the lot of any black person. Grover Rees, III: He also said that unquestionably, in terms of the damage that was caused, he didn't name specific people who were frightened, but he said that the evidence shows that the volition of many black persons was overcome out of sheer fear, and they were compelled against their personal wills to withhold their trade and business intercourse from the complainants. That is on Page 39-B, and that looks like a finding to me. The... the Petitioners' contention that these things aren't findings really boil down to, as do all of their other arguments, to the one argument that they really have, which is that this was a civil rights boycott, and civil rights boycotts are entitled to strict scrutiny. I think it is evident from the Petitioners' case that strict scrutiny has replaced banging on the table as what an advocate does when the law is against him and the facts are against him. In this case, it doesn't matter whether the obstacle they are facing is the fact that the Court usually respects the reasonable findings of state courts, or the rule that in a civil case the preponderance of the evidence is the test that is usually used, or the fact that intent can be inferred from conduct, or the very limited First Amendment protection to secondary picketing or to threats to break people's necks. In every one of those cases, Petitioners remind this Court that this is a civil rights case, and that there is no such thing as a fact or a finding or a rule of law that can't be avoided by the application of the right level of judicial scrutiny. The problem that we find, the most serious problem that we find with this contention is that everybody who ever engages in any kind of concerted action, whether it is labor unions or other political groups whose goals are not the goals of the NAACP, or anyone else, believes that he is fighting for his civil rights. Now, the rules, the kinds of substantive rules that they are arguing for here, whether it is First Amendment protection of certain kinds of threats or whether it is ultra-strict standards of review where you have to make the state courts say things in certain words before you have a finding, those are not susceptible of general application. So if you hold for the Petitioners in this case, the holding will have to rest not on what was done but on the status of those who did it. They say, in fact, we are the NAACP and we do not engage in violence, we do not engage in constitutionally unprotected conduct, and therefore the state courts must have been wrong, and they suggest a number of devices, a number of strict scrutiny devices, a number of extraordinary tests for determining intent, and so forth, by which the Court might reach that decision. We think that they should fail. If the court, if the state courts were right about the facts, then they were right about the law. The First Amendment does protect advocacy of opinions. It protects that advocacy no matter how controversial the opinions are, no matter how vigorous the advocacy, but it does not protect forceful and credible threats of violence. The fact that some of the Framers were willing to countenance 14 or 15 months before the American Revolution certain kinds of actions against the British, indeed, some of them were willing to countenance the Boston Tea Party itself, is no evidence that if you have a Boston Tea Party, or that if you have something that happened in 1773 against the British, that they intended to constitutionalize that, that in 1989 and in 1866 they intended to make that a binding rule on the states and say, you can't prohibit this kind of activity, that is not an adequate constitutional test. The cases that are cited by Petitioners in their brief, the Watts case, involved a highly conditional, an expressly conditional threat to kill the President, which was a highly improbable action. There was no evidence that the President had any reason to be afraid that he was going to be killed. In the Brandenberg case, you had 12 people out in the middle of a field at night talking to a television newsman, and saying that if Congress doesn't change its policies one of these years, we might have to consider something called revengence. That is not what this case was about. There was no evidence that Congress was afraid in that case. This case has nothing to do with abstract teaching. It has nothing to do with the abstract possibility of violence at a hypothetical future time. You had several hundred people in a small town, setting themselves up as the law outside the law. Their leader had espoused on many occasions the philosophy that every race has a right to its own discipline, and the designated enforcers of the boycott, the court found that the Black Hats, this group of... a paramilitary organization of 50 young men who watched the stores and who participated themselves in many of the acts of violence were the designated enforcers of the boycott, designated by the NAACP. Contrary to what the Petitioners say in their brief, Evers testified that he knew about these people. He said he didn't know about their constitution and bylaws, about whether they were a member of a chapter of a regional organization. He knew they were there. He said that he would... there was testimony that he had referred to them 100 times as his enforcers. These people had participated in violent acts pursuant to the philosophy that their leader had espoused. The incident, which was only the most vivid of a number of incidents, where he'd sit across from a row of stores and said, if you go in those stores, we are going to break your damn neck, suggests that this is the kind of case that John Stuart Mill was talking about when he said that an opinion that corn dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob before the house of the corn dealer. We would like to suggest that Mill was right about freedom of expression. Speaker: Do you feel, counsel, that there is specific evidence tying each one of these remaining defendants to these particular incidents? Grover Rees, III: Well, we do believe that there is evidence. We believe that there is evidence to support the trial court's findings. Speaker: I am asking... that isn't what I asked. Grover Rees, III: Yes. Speaker: I asked whether you feel there is specific evidence that ties each one of these incidents to these particular remaining defendants. Grover Rees, III: I do believe that, Your Honor. Speaker: And I think that maybe I will take you up on your suggestion that you file a reply brief pointing out where in this voluminous record such evidence is present. Grover Rees, III: We will do that, Your Honor. We would like to-- Speaker: Well, did the state courts find that to be the case, or not? Grover Rees, III: --They did. They said that what makes this a conspiracy... this was the state supreme court. They said, the... their conclusion, their holding was not-- Speaker: Well, they didn't expressly tie each incident-- Grover Rees, III: --They did not go through-- Speaker: --to each of the named people who were-- Grover Rees, III: --No. They did not do that. Now, they said that they... they said in their holding-- Speaker: --But that is what you are being asked to-- Grover Rees, III: --Well, it is going to be a substantial task. I am aware of that. But the Court has asked us to do it, and we are going to go through the 16,000-page record and find all the places that we can find. We would really like the Petitioners to go through two. Speaker: --Well, it is a substantial task, but I think it is counsel's task, not this Court's task. Grover Rees, III: You are right, Your Honor. We believe that... we believe actually-- Speaker: So far, I get nothing but generalities from your Mississippi courts and from your brief, and I would like something specific. Grover Rees, III: --We will give it to you, Your Honor. In answer to the question about what the court found, they did find that there was the agreed use of illegal violence. Now, that is a conclusion. They said that they had performed an adequate review of the record, and they dismissed 39 of the Petitioners. The Petitioners put themselves in the interesting position of saying that that means they didn't search the record because they granted the Petitioners' motion to dismiss all of those 39 people for the reasons that the Petitioners said to dismiss them. We don't think that there should be any such presumption, and we believe that they searched the record. We believe that if the Petitioners... what the Petitioners did was make in essence a bare no evidence allegation. They said, all these... all these people did was encourage other people to boycott or picket, and they listed people without any reference, any record references. We believe that what they should have done if they wanted to make a case to get this Court to overrule the lower court finding, was to list every reference to every petitioner in the record and what it said, and then to conclude that there wasn't enough evidence. We will be glad to do that. We think they should have done it in the first instance. Speaker: Is it your... the theory of your case that if concerted action was taken which in fact puts certain identified people in fear and apprehension if they traded with these stores, that that is the basis for liability for damages? Grover Rees, III: That is a basis for liability for damages. On the question of the conspiracy theory, first of all, we want to point out that as we think counsel has conceded here, no conspiracy theory is necessary to sustain the state court's judgment against the NAACP. Charles Evers was liable for all the tea on the ship. He did participate in threats of violence. He wanted to injure the business relations of the Respondents by constitutionally unprotected means-- Speaker: Well, that was the whole object. That was the whole object of the boycott, was it not? Grover Rees, III: --That's right. No, but he wanted to do it by constitutionally unprotected means. You see, their contention is that if some people only wanted to do it by protected means, then if it is a First Amendment right to have a secondary boycott, they are protected, and if it is a First Amendment right, and if in fact there were people who were just out there exercising their First Amendment rights, then they have got a good case. But Charles Evers wasn't one of those people, and Charles Evers was acting in his capacity as field secretary of the NAACP. Even under the statement that the ACLU recommends... pardon me, the standard that the ACLU recommends in their amicus brief, which is Section 876 of the Restatement of Tort Second, the joint tortfeasors section, Evers was a joint tort feasor, and Evers was responsible for all of the damage that the people who were participating in this movement that he was participating in did because he took himself out of the First Amendment, and he intended for people to be injured in the way that they were injured. Speaker: Mr. Rees, may I interrupt you with a question on that point? Do you concede that there was some voluntary participation in the boycott, or do you deny that? Grover Rees, III: Well, almost. Of course there was. The Petitioners themselves-- Speaker: Do you say that Mr. Evers is liable for the business damage caused by the voluntary participation in the boycott? Grover Rees, III: --We don't think that is a constitutional question. That... what they are-- Speaker: That is hardly an answer to my question. Grover Rees, III: --Well, yes, we do. Speaker: You do. Grover Rees, III: We think he is liable. We think that they are attempting here to constitutionalize not only the law of conspiracy but the law of damages. They cite a number of-- Speaker: Well, now, just push it to the extreme. Supposing there were 1,000 people who participated in the boycott and refused to purchase anything. One of those persons refused because he was afraid his neck would be broken. The other 999 all say, I would have done it no matter what Mr. Evers says, because I believe in the objectives of the boycott. For how much would he be liable, the whole 1,000? Grover Rees, III: --No, only what you could prove in that case. You see-- Speaker: But I thought you said he would be reliable for the voluntary participation as well. Grover Rees, III: --Well, but what I was... the reason that I think there's a distinction is because the rule of damages that the state courts and that courts routinely apply that also reflects the rule in the Restatement of Torts is the substantial factor test. Now, there was only one boycott here. There was one set of damages. What you would be requiring if you said to the state courts, you have to go back and figure out how much damage there would have been if it had been violent... non-violent and peaceful and voluntary instead of violent and coercive, is, you are asking the courts to indulge in a hypothetical-- Speaker: No, no, that is not fair, because you admit it was partially voluntary. You are not saying, if it were one or the other. I think you have said on your own presentation to us that it was partially caused by violence and partially by voluntary agreement. Grover Rees, III: --We do not... we do not agree that it was substantially voluntary. They use a line in the brief to say, well, most of the... most of the witnesses testified. That's-- Speaker: Well, assume it is substantially violent. Are they nevertheless liable then for the voluntary-- Grover Rees, III: --Well, according to the labor cases, they cite a number of statutory labor cases-- Speaker: --Well, I really want to know the theory, you understand what the theory of the court below was. Grover Rees, III: --I think that in that case, that if there were a few people, and if they put on evidence that... if they had put on evidence of the amount of... the general damage was... there was one boycott, there was one corpus of damages that would be very, very difficult to sever, and in all the other cases that we have been able to find, including the labor cases cited by Petitioners, when that is the case, there is no requirement that the courts sever the damages. In the Mead case that we cite in our brief, the court says, the requirement that something have contributed materially and substantially is enough to prevent windfall recoveries. Speaker: So if it is 10 percent caused by violence and 90 percent voluntarily, I suppose 10 percent is substantial and material, then they are 100 percent liable. Grover Rees, III: I think it might be. Speaker: That would be your-- Grover Rees, III: I don't know what percentage I would cut it off at. Certainly 10 percent would be on the margin. We don't think that question is really presented here. What they really want is, they want to send it back to the trial court and say, even if you find that there was violence, and even if you find that certain Petitioners were chargeable with the violence, you see, this is a separate issue, of course, from can all the Petitioners be charged, even if you find that a certain person was chargeable with the injuries to business relations that were caused by the violence, what you want is, you want to send it back to the trial court, and you want to ask them to do not only a hypothetical head count of what would have happened if it hadn't been peaceful and voluntary, you also want them to go over the psychological vectors within each mind of each individual black person in Port Gibson. There were some people, and they cite in their brief, they say, well, people were afraid of having their names called out, or they basically agreed with the boycott, then the same witness in another place in his testimony... frequently these were the Petitioners themselves... they said, oh, yes, I was afraid. One of the people who said that... who the Petitioners cite as having been afraid of nothing more than having their name called out and being embarrassed also says that she had heard that people had been physically... she had heard that they would take your packages away from you and destroy them, and she didn't want that to happen to her. So, you've got mixed motives on the part of lots and lots of people. I don't even know, as they point out with an exclamation point in their reply brief, one of the Petitioners himself bought a car at a store. He was encouraging other people to boycott and doing things like that, but he did buy a car at a white-owned store, and his car was destroyed. So, I think it would be very, very difficult, and the rule... the Petitioners have a very curious attitude toward labor cases, because when a labor case construing the National Labor Relations Act would help them, they say... they treat it like it was a First Amendment case binding on the states. On the other hand, in a case where... for instance, the Ramsey case, where this Court held that you can prove conspiracy, you can prove an implied conspiracy in a labor context by a preponderance of the evidence, that you can draw inferences from conduct, which is how the conspiracy was found here. In that case, they say, well, that is a labor case, not a civil rights case. Now, it is exactly the other way. They've got it exactly backwards. When the NLRA provides a substantive or a procedural protection for labor unions that is not required by the First Amendment, you can't use that as though it were a First Amendment case, and that is what they try to do on this damages issue. On the other hand, when this Court holds that something is permitted, that conduct can be penalized in a labor context, it strikes me that the burden is on the people who are trying to distinguish that case to come up with a distinction, and I don't think it is enough just to say that this is a civil rights case. Speaker: --Let me take you back to a factual question. What is the population of this town? Grover Rees, III: Several thousand. I think it was 7,500... 27... it has grown quite a lot, actually. It was 2,700, and now it is 8,000, or something like that. Speaker: Well, at the time of these events. Grover Rees, III: 2,700, I think, is a... I can check that for you. I don't have it right now. Speaker: I was just trying to get the proportion of people who participated in this thing. You said very few, but very effectively, but I think you also said there were 50 or 60 of these so-called Black Hats, the monitors, the-- --There were several hundred people who participated in the boycott. There was evidence of deep division within the black community. You mean participating militantly or because they were put in fear, as you-- Grover Rees, III: Their largest meetings... oh, no, more than that participated because they were in fear. Almost everyone participated because they were in fear. I mean, very, very few black people shopped at these white stores during that time. At first, there were a lot. One of the... The secretary of the NAACP, Lesco Guster, testified that at first there were quite a lot of boycott breakers, and that the list was very long that they called out, and after a while there were not very many at all. One of the... there was a division within the black community, and we think that is what this really was about. We think that one group in the black community... one of the demands, for instance, was that you had to appoint Negroes to the board of education, and they had to be Negroes acceptable to the Negro leadership. Many of the black people who... the black people who did testify, who had the courage to testify that... what happened to them in the trial, they had... they tended to have philosophical or personal reasons not to want to go along with this other leadership, which happened to be the leadership of the NAACP, and it was those people who were primarily compelled. I only have a few minutes remaining, and I would like to deal a little bit more with the conspiracy issue, because I do think that that is a problem, although not in terms of holding the NAACP. Agreement was inferred from conduct in this case. Nobody testified that he specifically approved of the violence, but those petitioners who were not members of the Black Hats organization saw the Black Hats on the street. They participated in weekly meetings which were the decision-making meetings about how the boycott was going to be run. Those people, who were the principal source or a principal source according to the trial court of the pervasive fear in the community that caused the success of the boycott were the designated enforcers of the boycott. It seems to me that after the pattern had been established, after you have seen enough times people on the street taking people's names, and sometimes destroying their packages, and then those names are called out, and then bad things happen to those people, and you hear Charles Evers and other boycott leaders saying that these people have to be chastised and disciplined and whipped and taken care of, and they are in fact chastised and disciplined and whipped and taken care of, at some point agreement to what is going on can be inferred from the conduct of somebody who has the right and the power to control that activity. That is-- Speaker: --Do you need to succeed on this submission to hold any of the people against whom judgment was entered? Grover Rees, III: --No. Well, yes, we need to succeed on that contention, I think, to hold many of the 91 people. Speaker: For everybody except Evers, or not? Grover Rees, III: Not for everybody. Well, Evers, I think James Bailey, who ruined the flower garden-- Speaker: Well, everybody except the NAACP, or the NAACP and Evers? Grover Rees, III: --If our statement is not right-- Speaker: About the conspiracy. Grover Rees, III: --that you can infer conspiracy from agreement, you would have to hold only those who were shown personally to have approved of the fear of violence aspect of boycott enforcement, and they... they are arguing for a very high specific intent requirement. Speaker: Well, anybody who actually engaged in violent conduct. Grover Rees, III: Well, engaging in it would obviously be the best evidence that there would be, and you would have Charles Evers liable, you would have the NAACP liable on the respondeat superior, the fact that he was acting as their... as their paid agent and spokesman. You would have, for instance, James Bailey, the member of the Black Hats who destroyed the flower garden. Speaker: But just take Bailey for a minute. What evidence is there that that caused any loss of patronage to anybody? I understood that the woman whose garden was trampled went ahead and continued to buy from the stores in question, and that no one else knew about it. So how would that incident prove any liability? Grover Rees, III: James Bailey testified that he was a... this would be evidence of his approval of the pervasive... of his specific intent to damage the business relations of the merchants. Speaker: Supposing he had that intent, but did he in fact cause any damage by trampling this garden? Grover Rees, III: Well, I think that causation wouldn't have to depend on that act, once you had shown his intent. Speaker: But you can hold him liable absent a conspiracy theory, I thought you were saying. Grover Rees, III: No, but it would be a joint feasor theory. Speaker: Joint with whom? Grover Rees, III: Joint with everyone else. Speaker: Well, it could be a two-man conspiracy. Grover Rees, III: We know... we know that these acts were done. Usually the way that conspiracies work is the way that this one worked, which is, people do things in the middle of the night, and it is hard to identify exactly who did them. Speaker: But here we know what happened. He admitted it. Grover Rees, III: No, but he would be liable also as a joint tort feasor, since he had committed a tort as part of this movement with everybody else. He would be liable for all the damage that was caused as part of that campaign even for other acts that he did not, in which he did not in fact participate. It would not be realistic for him to say, oh, well, I approved of fear and violence as a way of getting Mrs. Butler not to participate, but as far as getting all the other people to participate, it would have been very bad for fear of violence to be used-- Speaker: You are saying that that is just evidence, could be evidence-- Grover Rees, III: --Of his intent. Speaker: --that he sat down with Evers and they both agreed, here's our plan, and let's use violence as much as necessary. Grover Rees, III: Well, that is even more specific than I think-- Speaker: Well, I know, but it is evidence. It is evidence of-- Grover Rees, III: --It is evidence of the fact that he intended to injure the relations, he with these others. Speaker: --But as soon as you say that, it seems to me you are back to your conspiracy theory, and I thought you had said you didn't need the conspiracy theory as to him. Grover Rees, III: Well, no, no, I don't think that is a conspiracy theory. That is why I was reluctant to... I couldn't react very well to Justice-- Speaker: Well, what is the joint tort if it is not conspiracy? Grover Rees, III: --Well, the illustration that the Restatement of Torts gives, for instance, is that five people go into a house, and one of them does one tortious thing, and they all do five different tortious things. You don't need to prove that they sat down in a room and agreed that they were all going to do them. That is, I guess, a kind of conspiracy theory, using the word generically, but it is not covered by the law of conspiracy, and the ACLU, for instance, who don't like conspiracy theories at all, recommend that as the rule that this Court ought to apply to joint tortfeasors. Speaker: Yes, but there your example is, five people jointly destroyed some property. Here one man jointly destroyed... singly destroyed a flower garden. Grover Rees, III: Well, I was... I was hypothesizing that they did five different things. One destroyed one piece of property, and one... I think they say A chokes somebody, and B ties him up, and C steals something, and D destroys something. They would be different items of damages, but that would be sufficient evidence that there was a common plan. Warren E. Burger: Your time has expired now, Mr. Rees. Grover Rees, III: Thank you. Warren E. Burger: Do you have anything further, Mr. Cutler? Lloyd N. Cutler: Mr. Chief Justice, the chancellor of the trial court found that Claiborne County had a population of 10,900 persons, only 2,500 of whom were white, and the chancellor used that to deduce that the white merchants were especially vulnerable to a boycott. So it is 7,500 people who were supposed to have been intimidated by violence and threats of violence in order to make this boycott the success that both courts below found it was. The theory of the trial was to call, in addition to the sheriff, a series of black persons, and to ask them whether they were intimidated, and whether they had heard of particular acts of violence, or whether they had been victims of acts of violence, and as I mentioned to you earlier, in the Mississippi Supreme Court, these Respondents said, and this is in our reply brief, most of the witnesses that they themselves had called testified they voluntarily went along with the NAACP and their fellow black citizens in honoring and observing the boycott because they wanted the boycott. And regardless of how one might read this record, the way the Mississippi Supreme Court read the record citing the 12 episodes that I have referred to, including the Evers threat, was that violence was force, violence, and threats, and the word "threats" is ambiguous because it may also refer, as some of the witnesses said, to threats of denunciation and ostracism, but taken even as threats of physical violence, were present during the boycott. Present is the theory. If it is present, that is enough on a conspiracy theory. And that this presence was "part of the boycott activity" that contributed to the boycott's success. So, on the words of the Mississippi Supreme Court, there is nothing like a finding that violence was pervasive or that it accounted for all the success or even most of the success. It was part of the activity that contributed to the success. On the question of parsing out which parts of a mixture of lawful conduct and unlawful conduct have to be separated in assessing causation and damages, in constitutional cases, this Court has been very clear several times that it is the duty of the trial court to separate those factors out. In Pennington, you sent the case back because there was a mixture of an antitrust conspiracy to put the small coal mine operators out of business, and protected lobbying efforts to get the Secretary of Labor to establish a regulation that would help put them out of business. You said no damages could be assessed for the protected effort. In Gibbs, Mr. Justice Brennan announced a similar rule because there the damage had resulted in part from legitimate protected picketing activity and in part from improper activity. In Berkey, an antitrust case that the Second Circuit has just decided, deciding a number of your cases, they separated out damage to an antitrust plaintiff to distinguish between the effects of legitimate competition and the effects of the unlawful act. It is a perfectly standard way of going about this sort of a problem. I had thought the issue of primary and... whether this was a primary or secondary boycott was out of the case and that if peaceful, the Respondents did not challenge it. I take it now the Respondents continue to challenge whether boycotts, peaceful boycotts are constitutionally protected. I would remind you in that connection about Thornhill against Alabama, which expressly protects primary boycotts and picketing with the purpose and effect of persuading people in a labor dispute not to patronize the employer. And in Alabama against NAACP, Justice Harlan said for this Court that when Alabama tried to throw the NAACP out of Alabama for a series of alleged unlawful acts, including the boycott of the Montgomery busing system, he said that even if one assumed that such an act, a boycott could be validly... could be charged as unconstitutional under a valid statute, he expressed great doubts as to whether that could be done, that you could not have a valid statute in those circumstances. Speaker: Mr. Cutler-- Warren E. Burger: Thank you, gentlemen. The case is submitted. Speaker: --may I ask you a question or two? Mr. Chief Justice? Warren E. Burger: Yes, go ahead. Speaker: Does the First Amendment principle on which you rely apply to any group that engaged in this sort of activity? There was some suggestion that you were arguing that it applied only to a civil rights boycott. Lloyd N. Cutler: For this case, Justice Powell, I think you only need go so far as to say it applies to petitions for the redress of grievances in support of fundamental constitutional rights. Whether it applies to any boycott seeking some change in governmental policy one could leave for another day, although I do think the colonial history supports even that, and I would remind you once more that contrary to what my friend has said, not only do we have colonial history, we have Alexander Hamilton and John Jay, two of the authors of The Federalists, the very time the Constitution was being ratified, leaving the boycott-- Speaker: Mr. Cutler, how about a labor boycott? Would you apply the same principle? Lloyd N. Cutler: --In Thornhill-- Speaker: A secondary boycott? Lloyd N. Cutler: --A labor boycott was protected under the First Amendment as a primary boycott in Thornhill. Secondary boycotts, you have protected in Tree Fruits where it involved only one product, but because it was a labor dispute and you recognized the Congressional interest in avoiding the spread of labor strife, you have drawn the line at a secondary boycott against all the products of a neutral employer. Indeed, I would remind you, these defendants were in no sense... plaintiffs, I mean, in no sense neutral. Speaker: Mr. Cutler, does it make any difference to your case whether this is or is not a secondary or primary boycott? Lloyd N. Cutler: It really does not, Justice Powell. Speaker: That was my understanding. But you would apply the same principle to any group asserting a fundamental constitutional right. Lloyd N. Cutler: If you would put that to me... a fundamental constitutional right. Yes, sir. Speaker: Yes. I would like to ask you a practical question as a lawyer. Let's assume a case you had about 100 people who picketed a store for a week, and there were, say, three acts of violence during that period. You could identify those three people. The store did no business for a week. How would you go about proving that even the three who engaged in acts of violence caused any loss of business? Lloyd N. Cutler: Did you say... yes. I take it you are saying they were identified people, Justice Powell, who committed the acts of violence. Speaker: Yes. You identify three people in the course of a week, there were three acts of violence. Obviously, you wouldn't want to hold innocent people liable. But would there ever be any recourse, provable recourse? Lloyd N. Cutler: I think, Justice Powell, that is a... could be a legitimate jury question to decide how much of the loss of business was caused by the act of violence, and as Justice Brennan hypothesized in the Gibbs case, if you've got a situation as grave as Meadowmore, where violence was in fact pervasive, a jury could conceivably find, or a factfinder could find that all of the damage resulted from the violence. Speaker: And if there were $100,000 worth of damage, X percent of it could be assigned to those three people? Lloyd N. Cutler: Or if you had... I could change your example from three to three a day, it could be the entire $100,000. A jury could find that. Warren E. Burger: Thank you, gentlemen. The case is submitted.

John Paul Stevens: We will hear argument in Number 121 Original, Louisiana v. Mississippi. Mr. Keyser, you may proceed. Gary L. Keyser: Justice Stevens, and may it please the Court: Louisiana's circumstances here today are decidedly less happy than they were 3 years ago in November of 1992, when we were here on the same case. Since that time, we have had an opportunity to supplement the trial record from the Federal district court in Vicksburg with more than 200 additional exhibits and more than a dozen new witnesses who have augmented the trial testimony and we believe clarified it perfectly well. Unfortunately, the reason we're here is because we filed exceptions to the report of the special master which has essentially tracked the district court, which was reversed by the Fifth Circuit in favor of Louisiana. We hope to persuade the Court that Louisiana, like all other States, is entitled to some river frontage, to some access to navigation, and that there should not be an interstate boundary along our levee and along the bank of the river at Lake Providence, Louisiana, where the river never found its main course. In order for a boundary to be drawn there, as Mr. Austin Smith contends-- John Paul Stevens: You say the river never found its main course? Are you saying the thalweg was never west of the island? Gary L. Keyser: --When you say island, Justice Stevens-- John Paul Stevens: Stack Island. Gary L. Keyser: --Well, the original Stack Island of 1881 was 6 miles northeast of that location. John Paul Stevens: Right. Gary L. Keyser: The boundary is sought to be drawn-- John Paul Stevens: Are you saying that the thalweg was never west of that island? Gary L. Keyser: --Yes, sir. Mr. Brien Winkley, the chief hydrologist for the Corps of Engineers, said it was never there, and he produced all hydrographic surveys for all known periods of time to show where the thalweg was every year, and those hydrographic surveys were introduced into evidence, carefully explained by Mr. Brien Winkley, by Mr. Mike Mayeux, a professional land surveyor, and by Dr. Ernie Easterly, who is a forensic geographic and fluvial geomorphologist. All of them tracked the deepest geologic thalweg of the river, the downstream track of navigation for all periods of time, and none of them could find that the river was ever on the Mississippi levee, on the railroad tracks, across the property of Mr. Surles and Mr. House, or even across the Lake Providence Port Commission property, where Mr. Smith drew his boundary line. Ruth Bader Ginsburg: Mr. Keyser, I'm confused on that point, because I thought that Dr. Easterly testified in answer... there's this colloquy in the third supplemental transcript at 315, 313 to 15. He's asked the question, so the logical conclusion, then, is that the boundary thalweg was west of Stack Island at its formation, and the answer is, that is correct. Gary L. Keyser: Yes. The answer there refers to the northeast position of the original position of Stack Island in 1881. That's 6 miles, 5 to 6 miles northeast of the Louisiana levee. That's why there's so much confusion in this record. You can never understand from one minute to the next which area you're talking about unless you do it by latitude and longitude. David H. Souter: Well, if we speak just in neutral terms about disputed territory, that will take care of that confusion, won't it? Gary L. Keyser: Or the disputed areas, sometimes referred to the accretion along the west bank at Lake Providence. David H. Souter: You said in your brief, I believe, that the line as the master has recommended that it be drawn now cuts through property which has been owned and farmed by Louisiana residents since I think the beginning of this century, and that statement was simply hotly disputed in Mississippi's brief as being a factual misstatement. Could you either now, or if you can't do it at this moment, perhaps by a letter to the Clerk after the argument is over, point me to sort of the exact places in the transcript, or the other evidence which supports that statement of yours? Gary L. Keyser: One place you would want to look is to the testimony of Albert Surles, who adjoins the property of Mr. Sam House, who is the sheriff of that parish. Mr. Surles' father bought the property in 1925, and he testified that the accretion which attached to his property he had leased out to another Louisiana witness, Lonnie Styron, and Lonnie Styron was then at that moment, when he was testifying, forming that property. Now, that accretion was not, I don't believe, formed by Mr. Surles' dad, but rather by Mr. Surles himself, and Mr. Styron. David H. Souter: Okay. Is there any other evidence in the record that you would point to? Gary L. Keyser: I can't think of anything, except Robert... you have to recall that Mississippi really only had two witnesses, Austin Smith, who is their expert, and Robert Jarvis, who is the grandson of the Houston family. Mr. Jarvis' testimony was from an aerial photograph in which he drew a blue ink pen line across the same property and said that was the property of the Houstons. Well, that's the Surles, House, Delony, Shorter property. Actually, the line that Robert Jarvis drew is more westerly than the line that Austin Smith drew. David H. Souter: Well, that may be, but none of that indicates that a Louisiana family was farming the land since 1900, and I take it it's the Surles' testimony and that alone that you point to. Gary L. Keyser: Yes, sir, and you'll see in the testimony there that there... in fact, the lease was introduced: to evidence. David H. Souter: Okay. Gary L. Keyser: Thank you. So we're hoping to get some kind of river frontage and some access to navigation. On the subject of Mississippi's expert witness, this is the same man-- Antonin Scalia: Before we leave the thalweg issue, whether it was west of the disputed territory or not, I confess to be totally at a loss to understand what's going on here. In the brief of Mississippi, it is stated in this case it is undisputed that the boundary thalweg was west of Stack Island in its prepatent location. Is that a misstatement? Gary L. Keyser: --No, sir. I think that's true. It depends in any year, any given point in time, when you make a statement, whether or not it's true, because it changes all the time, but-- Antonin Scalia: Well, I'm talking about the prepatent location. It was west of Stack Island, you don't contest that. Gary L. Keyser: --It was west of Stack Island before the New Madrid earthquake washed the island away in 1811, and it was west of Stack Island... another problem-- David H. Souter: You're saying this isn't Stack Island, isn't that what causes all of this confusion? Gary L. Keyser: --Certainly. That is correct. What the disputed area is is not Stack Island. The originally island was-- David H. Souter: So if we accept the master's reasoning that in fact you can trace the... I'll call it the migration of this piece of land, whatever it's supposed to be called, from the Stack Island which was east of the boundary thalweg originally to the disputed area now, then your argument falls. If we accept his reasoning for the identity of this land, then that's the end of your argument. Gary L. Keyser: --That's correct. Ruth Bader Ginsburg: And then you do concede... that was the Dr. Easterly testimony that I read, that the boundary thalweg was west of Stack Island at its formation. Gary L. Keyser: In 1811 or prior years, not at 1994, 1995-- Ruth Bader Ginsburg: Well, we have just gone through that if this Stack Island continued in existence, then the boundary was west of Stack Island at the island's formation. Gary L. Keyser: --Dr. Easterly's not referring to the Louisiana levee. He's referring to the Mississippi area 6 miles northeast of the area of the dispute. I'd have to reread the testimony you're reading to make absolutely sure, but I'm quite confident that's what he meant. Ruth Bader Ginsburg: And the boundary thalweg, unless Stack Island is washed away, will remain west of Stack Island for all times, unless it is eroded away, and Dr. Easterly confirmed that that was correct. Gary L. Keyser: That's correct, but he's not referring to Lake Providence, he's referring to Mayersville, Mississippi. Ruth Bader Ginsburg: I thought he was referring to Stack Island. Gary L. Keyser: No. I think that colloquy is about where the location of the original island is and all of the exhibits depicted in black at a latitude reference... he's referring to, if the island is washed away... I think they're talking about the island rule there, but I would have to go back and reread it. Stephen G. Breyer: Maybe I have this mixed up, but I didn't think it was that complicated, so probably I do have it mixed up, but I thought once upon a time there was a place called Stack Island that used to be part of Mississippi, and there was a big river that flowed to the west of it. Gary L. Keyser: Correct. Stephen G. Breyer: And then that big river that flowed to the west of it began to change its channel and began to flow towards the east of it, and the law is that if the river changes like that, that Stack Island still stays part of Mississippi. But of course, if it really isn't one island, if really the island disappeared and then reemerged later on, when the river was flowing to the east, then it's part of Louisiana. Gary L. Keyser: I agree with-- Stephen G. Breyer: So you're all arguing about whether this was one island called Stack Island, which has always existed, but the river changed course, or that there are three or four or five islands that keep coming back and forth and disappearing. Gary L. Keyser: --That's exactly correct. Stephen G. Breyer: All right. Fine. Gary L. Keyser: That's exactly what-- Stephen G. Breyer: If that's correct, then looking through this, it seemed to me they made an awfully good case that there was just one island, because they trace it through on all the maps, and then they show that there were cottonwood trees there that are about 100 years old, or 80 years old or something, and they're still there, and it's pretty hard to see how all these trees could have grown on this island that was popping in and popping out, and you have some other evidence, but what is it, because I haven't found it. Gary L. Keyser: --Let me explain what that problem is there. The special master misconstrued Mississippi's only third witness, the forester, Mr. Burkhardt. Mr. Burkhardt was testifying about an 1867 Merriweather map which showed the island accreted to the Mississippi shore at that time, and it did have tall trees. As Austin Smith testified, that island was completely washed away and washed downstream. Stephen G. Breyer: The only thing I found on your side, or my clerk found so far was that one of these maps, which always talks about Stack Island, had at one point marked through it a thing that said river, or channel, and if you assume there were 50 yards on either side or something it must go through... do you know what I'm thinking of? Gary L. Keyser: I think that was a survey-- Stephen G. Breyer: Yes, right. But aside from that, is there any other evidence in your favor? Gary L. Keyser: --About what? Stephen G. Breyer: That shows this island was popping in and out instead of just being one island. Gary L. Keyser: One of the best things... quickest handles you can get on that is to look at Dr. Easterly's testimony. He explains the origin of the island, when it was washed away by the New Madrid earthquake, and attached to his prepared testimony in the supplemental trial is what's called the cartographic analysis. It tells you for every year whether the island or any bar or shoal formation loosely called Stack Island was in existence, and you will see that it appeared and disappeared and reappeared, as did island number 7, below Lake Providence, and an agglomeration of bars and shoals which appear and reappear throughout this reach of the river. But the location known as island number 94, and after it was washed away in 1883 it became Stack Island, and it was washed away in 1910 to 1915, became bars and shoals and an agglomeration of low-level accretionary features, washed away again in 1948, and now it's there in its full glory at its original location as a true island known as Stack Island near Mayersville, 6 miles from Lake Providence, and what is below on the Louisiana bank is nothing more than bank accretion. David H. Souter: Mr. Keyser, when you say that it washed away, do you mean that there was on the surface of the river at that point no land showing, or do you mean that the level of the island in relation to the adjacent river banks dropped sufficiently low so that by the legal definition you employ it was not an island even though there was visible land of some sort there, whatever you might call it? Do you mean that literally there was nothing above the surface of the water, or there was something above the surface, but it wasn't high enough to be called an island? Gary L. Keyser: Both of those are true, both of those statements. In 1883, during a flood period, the river totally scoured the island away, and as Dr. Winkley testified, there was a 30-feet scoured channel right through the island. David H. Souter: Wasn't there also testimony that with respect to that time a given family was continuously farming the land, so that with respect to that, wasn't there disputed testimony? Gary L. Keyser: They filed affidavits... the island was surveyed-- David H. Souter: Well, but isn't that what their affidavit said? Gary L. Keyser: --Correct. David H. Souter: And isn't the master entitled to accept the affidavit? Gary L. Keyser: I think he has to do so with a common sense comprehension of what was going on at the time. David H. Souter: Well, if somebody says, there's nothing there, and somebody else says, we were farming that land there at that time, the master can't have it both ways. He's got to choose one or the other. Gary L. Keyser: That's true. David H. Souter: If he chooses yours, they're going to say, oh, gee... the other side is going to say, you've got to show common sense, and if he chooses the other side's testimony, that's what you're saying. But he's got to take one or the other, and why would we go behind his factual resolution? Gary L. Keyser: Why would the U.S. Army Corps of Engineers draw hydrographic surveys that showed scour pools at the location of the island? Stephen B. Blackwell has family who are in an ongoing effort to achieve a patent-- David H. Souter: I don't know, but if you want to say it's a choice between whether you're going to accept the testimony of farmers who said they were farming, and a Government agency that drew a map, I don't see anything irrational about saying I'm going to go with the farmers. Gary L. Keyser: --Well, the island was surveyed in 1881, but it washed away in 1883. No one-- David H. Souter: And the farmers say no, we were farming it. Gary L. Keyser: --Well, in the hope that it would come back, which it did. David H. Souter: Well, they weren't farming in hope. I mean, you're not plowing in water. [Laughter] Gary L. Keyser: They may not have been accurately providing affidavit for the general land office-- David H. Souter: Well, somebody could always lie in testimony, that's true. Somebody can always can make a mistake. But the point of a factfinder, in this case the master, is in effect to make the best choice he can, and the master in this case chose the affidavit of the farmers. What is irrational about it? Gary L. Keyser: --With an island elevation of 20 feet and a water elevation of 50 feet, one might doubt the veracity of an affidavit that says there was an ongoing farming operation continuously from year to year. It would be under 30 feet of water, as the master saw himself on May 5, 1994. When he went with us in a boat to the disputed area, he found 46 feet of water and an island... not an island, an accreted ball formation on the Louisiana bank 30 feet of water. Now, is that an island? David H. Souter: I don't know, but I'm concerned about 1883, and the master-- Gary L. Keyser: Well, that's-- David H. Souter: --took the testimony of the farmers, and I still don't know why it's irrational. Gary L. Keyser: --Well, he didn't take the testimony of the farmers. David H. Souter: Took the affidavit of the farmers. Gary L. Keyser: He took... there was an affidavit filed in an effort to kill a fault in a patent application, was what that was about. But if you look at all of the hydrographic surveys, it's not reasonably likely that a farmer could have farmed 30 feet under water, and that's the long and the short of it. That is a legitimate concern. Ruth Bader Ginsburg: In your view, when did this disputed area form? You said it's not the same as this Stack Island in origin. We have... the disputed area is formed much more recently, and when do you date it from? Gary L. Keyser: According to the testimony of the Corps of Engineers chief hydrologist, it started forming in the 1930's. According to Albert Surles, who lived there, I think, thirties, forties, and fifties, it was a gradual process of building accretion to the bank, and you can see it from the hydrographic surveys, and Mr. Surles testified about it, and in fact in the first-- Ruth Bader Ginsburg: Your position is, it's 1930, or it's not 1930, when is it? I'm not-- Gary L. Keyser: --It's a gradual process of building on a river bank. The accretion forms more and more, year after year, unless, of course, it's washed away, and that's what Dr. Winkley testified had happened here. As the island to the northeast is being washed away, sediment is being deposited on the Louisiana bank at Lake Providence, so there are two separate and distinct features, two separate and distinct times and places building and eroding independently of one another. Anthony M. Kennedy: --In the disputed area, roughly, in a 10-year period, or from 1930 if the record tells us, what period of time was it underwater? Gary L. Keyser: Every year. It's-- Anthony M. Kennedy: For how long? Gary L. Keyser: --During high water. Anthony M. Kennedy: How long does the high water last? Gary L. Keyser: It would depend on the melting of the snow up north. It would commence probably in March, April, May, June. It varies from year to year. Sometimes there are periods of extreme high water even very late in the summer. In fact-- Anthony M. Kennedy: So in some periods it would be underwater for 3 or 4 months? Gary L. Keyser: --Yes, or longer. This entire crew here was in a boat on September 5, 1994, and the water elevation was 46 feet. Stephen G. Breyer: In other words, there is... if I go to the place... what's... it's not a trick. I'm using the words Stack Island to refer to what Mississippi and the special master were referring as Stack Island, so I'm not trying to catch you in any kind of linguistic difficulty. I mean, you're saying that this place that the master and everybody is talking about as Stack Island, which from reading the master's reports had trees all over it, cottonwood trees, that you all went out there, and there was nothing but water, and that down below the water level, 40 feet below was this place they're calling Stack Island with, what, some trees, branches, poking out the top? Is that what it looked like? Gary L. Keyser: Major treetops. It was like driving through a forest. Stephen G. Breyer: So in other words, if we go there right now, there is no land. It's 40 feet under the water. Is that what you're telling me? I'm just trying to understand this. Gary L. Keyser: Depending on the water elevation. I'm not sure what it is right now. Stephen G. Breyer: But no, is it that there is no land there at all, it's below the water, like feet, many, many feet below? Gary L. Keyser: I would imagine if conditions today on October 2nd or 3rd-- Stephen G. Breyer: And all the witnesses agreed, everybody said... I didn't get that from the report... they all went out to this place of what they're calling Stack Island, and there's no land, it's just water 3 or 4 months a year? Gary L. Keyser: --That is the nature of the river. It goes-- Stephen G. Breyer: But is... am I right in saying that? Gary L. Keyser: --Yes, Your Honor. Stephen G. Breyer: So there is no land there, there is just water 3 or 4 months every year, is that the case? Gary L. Keyser: It may be longer than 3 or 4 months. Stephen G. Breyer: All right, but not shorter. Gary L. Keyser: It could be shorter. David H. Souter: It's like the Nile Valley. [Laughter] Gary L. Keyser: Correct. The water elevation varies as much as the height of this building. David H. Souter: May I go back, then, to my earlier question? Gary L. Keyser: Yes, sir. David H. Souter: Part of your argument, if not your case, then, rests on your claim that this is not an island because it is not high enough in relation to the banks of the river to be called an island. Gary L. Keyser: Correct. David H. Souter: And you're saying that for that reason, even though during some parts of the year there's land here, and indeed there's enough land to have trees, the tops of which look like a forest, it's still not an island, and the island rule, or the island exception, rather, does not apply. That's your argument. Gary L. Keyser: Yes. David H. Souter: Okay. Gary L. Keyser: It wouldn't apply to this-- David H. Souter: Why... you in effect then are saying that the island exception should not apply to anything that does not... any body of land sometime above the river, which sometime is located above the surface of the river, which is not... I forget what the rule is, as high as the banks, or something like that. Why in the world would we want a different rule for low-lying land, let's say, that is a foot or 6 feet below the banks from the rule that we would apply to an island as you would define it? Gary L. Keyser: --If you attempt to take into account every bar and shoal, and if each one of those can represent the legal character of an island, you'll have a thousand boundaries. They're constantly forming and being washed away, so you'd be faced with trying to draw frozen thalwegs and active thalwegs, or different boundaries every time you found a bar or shoal, of which there are thousands in any one mile of the river. Sandra Day O'Connor: But I assume very few of those have been patented to owners like this. You're talking about an area here where land patents have been issued, isn't that right? Gary L. Keyser: Not on the west bank of the river at Lake Providence. Only patents for uplands fastlands to the riparians at the time of State sovereignty. What has accumulated as accretion to the bank has never been patented out. It is just attached. The only thing that was ever patented was the northeast Mayersville, Mississippi location. Sandra Day O'Connor: You know, there is a series of maps that were put in evidence in this case, I assume by Mississippi, and each one has fixed markers. You can lay one on top of another, and see at each map just where this disputed area has shifted a little bit or grown, or changed, and where the river has changed, and if you lay each one on top of the other, at the end of the day you see the disputed area that has shifted somewhat through the years, grown, changed in shape with movement of the river, but nonetheless traceable. Gary L. Keyser: Yes. Sandra Day O'Connor: And you come away at the end thinking, well, here is this piece of land that was patented, and it shift and changed through the years, but it's identifiable. Now, is there not such evidence available that the master looked at and apparently relied on? Gary L. Keyser: He did look at it, and apparently did rely upon it, and that technique is the subject of a book. It's called, "How Maps Lie". It's no different than taking aerial photographs of a car on an interstate, and you take the picture every day, and you say, see, the car is always right in that same place. And that's what happened in this case. Those maps are nothing more-- David H. Souter: Well, are you suggesting that the island disappeared in the meantime? Gary L. Keyser: --Dr. Winkley said-- David H. Souter: Are you saying that as between map A, B, and C in the interstitial period between A and B and B and C, that the body of land disappeared? Gary L. Keyser: --From year to year it did. It was washed away. David H. Souter: They just happened to get there at the fortunate moments when it was appearing, and they never bothered to map during those periods when it had sunk? Gary L. Keyser: Those maps are-- David H. Souter: I mean, that's not a believable proposition. Gary L. Keyser: --Those maps are at low water. They're below the ordinary low water elevation. David H. Souter: All right, then that gets us... all right, then that gets us back to the claim of whether it is or is not an island by legal definition, but it doesn't go to the question of continuity, which Justice O'Connor raised with you. Gary L. Keyser: Well, Dr. Winkley addressed the question of the whole thing being scoured away. He gave us the dates. He gave us the maps. They're all in evidence. It shows that the bottom form of the river was completely devoid of some of those very formations you make reference to, and he explained that in his predicate testimony for what he would talk about, then he explained it specifically with regard to each map. Now, sometimes there is a low-lying bar or shoal growing up... as the ancient writers used to say, fast growing up to be an island covered with willows, maybe a new crow's nest island, words to that effect, but it-- Antonin Scalia: That testimony contradicts the series of maps, does it not? Gary L. Keyser: --Yes, it does, the series-- Antonin Scalia: Once again-- Gary L. Keyser: --that Justice O'Connor referred to. Antonin Scalia: --as with the affidavit by those who claimed to have farmed the land, there is conflicting testimony, and isn't the master entitled to rely on the series of maps, rather than on the testimony of your one expert witness? Gary L. Keyser: Well, we had four. We had-- Antonin Scalia: On this point? Gary L. Keyser: --Yes, sir. We had-- Antonin Scalia: That said it was totally scoured? Gary L. Keyser: --We had Hatley Harrison in the first trial, Mike Mayeux, the surveyor, Dr. Winkley, the corps' hydrologist, and Dr. Easterly. All of them talked about each of the maps. John Paul Stevens: General Keyser, can I ask you a factual question? In response to questions from Justice Breyer, you said the island was totally submerged for 3 or 4 months in several years. Would it not also be true that for 8 or 9 months it was visible and above the level of the water? Doesn't the water level rise or fall rather dramatically in the Mississippi? Gary L. Keyser: Correct. John Paul Stevens: And in your view, how long does it have to be submerged before it ceases being an island? Gary L. Keyser: It has to be above ordinary high water to be an island at any time. John Paul Stevens: Well, I... you're not denying... you're not saying it was never above high water. Gary L. Keyser: Dr. Winkley said there has been no island in the river above high water for any recorded period of history. John Paul Stevens: It as to be above high water. Gary L. Keyser: Ordinary high water. Now, when that water goes down, you can see something. You can walk on it. That's why they deer-hunted. John Paul Stevens: And for what period of year, in your view of the evidence, was the island totally submerged, in a typical year? Gary L. Keyser: Well, it would be submerged from after the... I mean, it would be emergent from after the spring floods, generally through the summer, to February, March, April the next year. John Paul Stevens: So it would be above water more often than it would be submerged. Gary L. Keyser: It's hard to say because of the way the water in the river is. We'd... it... actually it varies tremendously from year to year. Anthony M. Kennedy: Well, with reference to the definition of an island, can you give us some idea of how to measure the time that the island has to be above water, or above the high water mark, in order to qualify as an island under your definition? Gary L. Keyser: Once an island is above ordinary high water, it is a fixed place. It's fastland. It has permanent character. Anthony M. Kennedy: Even if it's above high water for just once a year? Gary L. Keyser: Well, yes, if it-- Anthony M. Kennedy: One day a year? Gary L. Keyser: --Ordinary high water-- Anthony M. Kennedy: That's what we're asking. How long-- Gary L. Keyser: --Ordinary high water may be in the vicinity of 36 to 38, 40 feet. What exists for whatever period of time, and if the island were... whatever portion of a bottom feature was above that elevation would be the island part, not the part below it, like Hawaii or somewhere. Only the part above the water is the island, not the part below it, so if it's above the water, that part qualifies as an island, not the bars and shoals that surround it. Anthony M. Kennedy: --How long does it have to be-- Gary L. Keyser: There's no rule on that that I'm aware of. Anthony M. Kennedy: --So 1 day a year suffices. Gary L. Keyser: I wouldn't go that far. I would have to think it would have to be somewhat more emergent and more permanent in character and use than that, but-- Anthony M. Kennedy: I thought the definition that the master used was whether or not it was below or above for a protracted period of time. Gary L. Keyser: --I would think it should be, but I've never seen a situation where there was only... if you only had 1 day of ordinary high water, it might qualify, but that's not the case. That never happens. It's months at a time, generally. David H. Souter: Mr. Keyser, going back perhaps more specifically to the question that Justice O'Connor raised with you, in leaving aside for the moment the question of how we're going to define the island... let's just refer to it in a generic... to the disputed area in a generic way. The yellow brief on page 30 contains the statement that 65 percent of the island as shown on the map in 1882 was still in place, in the same place as shown on a map in 1937. Is that statement correct? Gary L. Keyser: That's totally incorrect. It's not possible by any stretch of the imagination. Those are in two different geographic locations. They're 6 miles apart. There's no way that-- David H. Souter: Well, how long was the island? Gary L. Keyser: --Along the Lake Providence bank in Louisiana. It is the bank accretion, and it goes from the town of Lake Providence 5 or 6-- David H. Souter: Yes, but how long is it, I mean in relation to 6... you're saying it was 6 miles apart, it couldn't-- Gary L. Keyser: --Oh, no, no-- David H. Souter: --so that statement couldn't be correct. Gary L. Keyser: --Yes, I see what you're getting at. The original island first referred to is 117 acres, so it might be 500 feet long, 1,000 feet long, over against Mayersville, Mississippi. The other accretion against Louisiana is just that, it's in a remote location, so the two can't coexist... well, there's a new island in the original location, so they do now, but they couldn't along the lines of what you're suggesting. I think I'll reserve the rest of my time. John Paul Stevens: Thank you. Mr. McCartney. James W. McCartney: Justice Stevens, and may it please the Court: What has emerged from Mr. Keyser's argument is in our view simply that we have, as we had at the outset of the trial, an identity issue. That is to say, is the disputed area Stack Island as it was patented but changed in configuration and location over a very lengthy period of time? The Court appointed the special master. The special master reviewed all of the evidence. The special master heard the witnesses. The special master also heard some of the arguments that you have heard today. The special master addressed the question of whether this was an island. The special master found from the record, and we have undertaken in our brief at page 25, joint response, footnote 23, to identify the evidence in the record that demonstrates not only that this island has the appropriate permanence which is the test that we submit is the appropriate test, that it has the appropriate... has the permanence to qualify as an island, but also that it was above high water, and the thought-- John Paul Stevens: When you say above high water, what do you mean? Above high water 6 months out of the year, 9 months, 12 months... what do you mean by above high water? James W. McCartney: --Your Honor, when I say that, I'm talking about constantly. John Paul Stevens: Permanently. James W. McCartney: Now, there may be-- John Paul Stevens: So you disagree as a matter of fact with your opponent's statement that for several months each year it was 40 feet below high water. James W. McCartney: --Yes. David H. Souter: Well, where were you all when you were in the boat? James W. McCartney: Well-- [Laughter] Antonin Scalia: Didn't you row among-- [Laughter] Didn't you row among the treetops with Mr. Keyser? James W. McCartney: We rowed among treetops, but there was also water... dry land above the water. Stephen G. Breyer: I mean, where was... that what was mixing me up. As I read these and I had my law clerk check into it, I did think there was an awful lot of evidence this is one place, and there are big poplar trees 80 feet around or something, or they're very, very broad, big trees. I don't know how you could plant these trees if it's underwater all the time. But he just said you went out on a boat, and there you were, sailing over the island 40 feet below you under the water. What happened on that boat? James W. McCartney: Well, what happened was that a part of the time... we motored, we didn't actually row. [Laughter] We motored among the trees over that portion of the island that was inundated at that particular time of the year, and the master was there, and viewed the island, and heard the evidence, and read the cases, and reached the conclusion, correctly, that this is a land mass that has the degree of permanence that qualifies as an island, and that qualifies as a feature that determines boundary. Antonin Scalia: But you said that it has to be permanently above high water. James W. McCartney: Well, I didn't... if I said that, You Honor... I thought you were asking me... I didn't say it had to be permanently above water. I didn't intend to, let me say that. What I'm saying is that the overwhelming... well, let's direct our attention first to the question that you asked. No, we don't say that it has to be permanently above water. I think that an island could flood and still have permanence over 100 years, and the master so found, and documented his findings quite overwhelmingly in this appendix. Antonin Scalia: I'm not talking about permanently above flood tide, or anything. James W. McCartney: Yes. Antonin Scalia: Permanently above normal high water, and so I took your statement to mean that if at the time when you went motoring among the treetops the whole island was underwater, that would contradict your case, but you say the whole island... because I assume that was just normal Mississippi high water at that time. That wasn't a flood, was it? James W. McCartney: It was a flood, but Your Honor, I guess that-- Antonin Scalia: You picked a bad time to go, then. You should have been out during-- [Laughter] During normal-- James W. McCartney: --We wanted to see it at its worst. We were perfectly prepared for the master to examine the feature at the time of extreme high water. Actually, that's... it just happened to be that way. I don't mean to suggest that we picked any particular time. David H. Souter: --Well, Mr. McCartney, I just wanted to get straight on what you saw out on the boat. [Laughter] I take it that part of this land mass was flooded. There was water over the soil, but I gather from what you said a moment ago part of it was not-- James W. McCartney: That-- David H. Souter: --that there was still some dry land somewhere. James W. McCartney: --Your Honor-- David H. Souter: The edges of the island got flooded, but the center of the island didn't, is that true? James W. McCartney: --Your Honor, that is my recollection at this time, and Mr. Bailess will address that, but that is my recollection, and-- John Paul Stevens: But your further position is that even if there were a total flood, I mean, you can flood a whole long area, it doesn't cease being land. James W. McCartney: --No. John Paul Stevens: Yes. James W. McCartney: I mean, as pointed out, we have trees that... evidence that there were trees there that had been 50, 60 years old, and if I may just add to the evidence, in your review of the evidence of permanence, in addition to what the special master laid out in his Appendix D, which is itself overwhelmingly compelling, particularly when compared to the single or... map that they relied on to say that the island was scoured clean, and the bed of the river was scoured clean of this feature in 1883. Antonin Scalia: Mr. Keyser says four witnesses testified to that, is that right? James W. McCartney: That is not so. David H. Souter: Was the scoured clean map I think you were referring to, or one of the briefs referred to as the lunch map? James W. McCartney: The lunch map-- David H. Souter: Yes. James W. McCartney: --which itself, and I'll just... it's credibility is destroyed, or at least seriously impaired, because one of their experts gives it to the other expert in the middle of trial, and he takes that map, and he says, oh, you know, this land was underwater, and we say, well, wait a minute, here are affidavits given in 1885 that say these people were farming-- John Paul Stevens: Yes, but that map does show a channel of the river going right over the island, doesn't it? James W. McCartney: --And... and he says, how can they be farming land that's underwater, and we say, that is a good question. Obviously, they can't. The map was wrong. It's a spurious map. Besides, in addition to these documentary demonstrations of permanence, we have to remember that in 1921, after they say this was scoured clean, there was a timber deed given to my clients, the Houstons, the private parties. In 1931, there was another timber deed, so these people are selling... these are the Blackwells, the patentees are selling timber off the island in '21, '31, an then my clients lend money and take a mortgage on this piece of land that's 54 feet, according to this Mr. Winkley, underwater. They lend them money, and then they foreclose on the mortgage. [Laughter] The State of Mississippi, they take a tax deed. They foreclose for the nonpayment of taxes. There's litigation over this island. This island has been known to all of the parties. There's overwhelming documentary evidence that it's continued in existence. Antonin Scalia: Mr. McCartney, do we know who did the lunch map? I mean-- James W. McCartney: We do not. Antonin Scalia: --is the author unknown? It just sort of appears? James W. McCartney: Author unknown-- Antonin Scalia: Can you get maps into evidence like that? I mean-- James W. McCartney: --Well-- Antonin Scalia: --without knowing-- James W. McCartney: --Your Honor, to be perfectly frank with you, we wanted that map in evidence, because the reliance on that map and the circumstances in which it was found... and it was a total reliance... utterly destroyed the credibility of Mr. Winkley, and so we were perfectly happy for him to rely on this map that mysteriously appears at lunch and say, yes, this is what I'm relying on, and therefore this island was scoured away and washed away and ceased to exist, and so-- John Paul Stevens: --Mr. McCartney, what is your view of our duty to give deference to the master's findings of fact? Are we supposed to look at the case de novo, or are we supposed to give some deference to him? What's the law on that point? James W. McCartney: --Your Honor, I've taken a position on that in a previous argument that you are free to take your own factfindings, and that the clearly erroneous rule does not apply. I think that to be correct, but I think as a matter of law, under these circumstances the evidence is so overwhelming that that question does not come into play. John Paul Stevens: Thank you, Mr. McCartney. James W. McCartney: Thank you. John Paul Stevens: Mr. Bailess. Robert R. Bailess: Justice Stevens, and may it please the Court: As I sit here and listen to this this morning, I wished I had been standing up here to answer some of the questions that you had asked. Sandra Day O'Connor: Well, I wish you had, too, because it sounds like something like a giant shell game in the river, now you see it, now you don't, and no, it's... the island's up here 6 miles away. Robert R. Bailess: Justice O'Connor, I would... you mentioned the overlay exhibits which, it takes a little time to examine those exhibits. You have to get acquainted with them. You have to become familiar with them. If each of you took the time to get familiar with the overlays, you would unquestionably say that Stack Island has existed from... and the first good metes and bounds, if you want to call it that, survey that is performed by geodetic positions... that is, latitude and longitude lines, which was done in 1882... show unquestionably that Stack Island at that time was good, fastland that existed, and if you follow that on through up to 1994, you will see that that island is in substantially the same position through all of those years. David H. Souter: May I get specific about that with a question that I raised with Mr. Keyser? Why, then... can you explain why we have such a clear dispute over the proposition which was in your yellow brief that 35... I'm sorry, 65 percent of the island as shown in 1882 was still shown in the same place in 1937? How do... one of the things that's puzzling me is how we can have, definitional problems aside, such a clear contradiction about matters of evidentiary fact. Robert R. Bailess: Justice Souter, the only way that I know to answer that question is to say, if you will look at who was testifying to come up with those percentages, it was Dr. Winkley on cross-examination, so Louisiana's own expert witness testified to that. I don't know how better-- David H. Souter: What is your comment on Mr. Keyser's statement that the island... or the land masses were 6 miles apart, and for that reason, given their sizes, there could not have been such an overlap? Robert R. Bailess: --Your Honor, Mr. Keyser attempted to talk about two islands when we tried this case the first time in Vicksburg before Judge Barbour in 1989. He again tried to talk about this other island in the supplemental proceedings before Judge McKusick, and there was an original Stack Island, and I will admit to you today that the original surveyed, patented Stack Island is not located in the exact position that it's located in today. David H. Souter: Well, is it 6 miles away on the-- Robert R. Bailess: No, sir, it's not nearly 6 miles away. David H. Souter: --Well, do you stand by the statement which you attribute to the witness for the other side that there was this 65 percent identity over time between 1882 and 1937? Do you think that statement is correct? Robert R. Bailess: I think it's substantially correct, Your Honor. He was not my witness. I had him on cross-examination. He made the percentage, I accepted it, it was very-- David H. Souter: You adopted it in your brief. Robert R. Bailess: --I did. David H. Souter: Yes. So if I take the 1882 map and the 1937 map, and I overlay them on my light table, am I going to see something like a 65 percent overlay of the land mass? Robert R. Bailess: Give or take 10 percent, I believe you will, sir. David H. Souter: Okay. Robert R. Bailess: Let me correct one other thing that is misleading. When Judge McKusick and the attorneys went to view the island in May of 1994, we took a boat and we went around the island. We put in at the Lake Providence Port Commission. We went up the old channel, the boundary channel. We never did go into the wooded area far enough to see dry land, but I can assure you it's there, and I can assure you that if you read the hydrographic surveys that are in evidence, and you look at the contours on those hydrographic surveys which are surveying the top bank of Stack Island, you will see that at all times on those survey maps, Stack Island is higher than what Mr. Winkley is trying to put into evidence as the... he called it the top bank, and in each instance you will see that Stack Island exceeds Mr. Winkley's top bank definition by at least 5 feet or so. Sandra Day O'Connor: Were you on this boat trip? Robert R. Bailess: Yes, ma'am, I was. Sandra Day O'Connor: And was there a part of the disputed area that was above the waterline on that boat trip, or was there not? Robert R. Bailess: Justice O'Connor, we did not... as I mentioned just a moment ago, we did not see dry land on that trip, mainly because to get in there... there was current in the river, and we would have had to go in between trees to get to that area, and we felt like that was not an appropriate thing to do under the circumstances. The river-- Sandra Day O'Connor: You couldn't see it in the distance. Robert R. Bailess: --We did not see it. We went back in September when we heard the case. When Judge McKusick heard the evidence, we went back on an afternoon after the testimony and drove onto this island with a four-wheel-drive vehicle. We drove to the north end of the island where the highest elevation is. We drove to the south end of the island, where it's much lower. But at that time there was conversations in the vehicle as we rode around, now, Judge McKusick, this area here was dry when we were here 4 months ago. Sandra Day O'Connor: Well, do you acknowledge that at times the island is completely submerged-- Robert R. Bailess: No. Sandra Day O'Connor: --in the river? Robert R. Bailess: No, Your Honor, I do not. The... if you look... now, at times, that may have happened. If you look at the most recent hydrographic survey, if I'm not mistaken... it's in the brief on page 25 in footnote 23, but if you'll look at the contour on, I think it's of the most recent map, the Stack Island has an elevation of 50 foot. That is, 50 foot above zero gauge. Zero gauge is defined as the lowe water mark. The area on Stack Island on the north end is 50 foot above zero gauge. The river-- Sandra Day O'Connor: Well, do we look at the high water mark or the low water mark? Robert R. Bailess: --Your Honor, we take the position that an island is an area of land surrounded by water that has permanent features, i.e. vegetation, i.e. 70-year-old trees, that is capable of sustaining vegetation, and in 1881, when this island was surveyed by the General Land Office of the United States by a deputy surveyor, it had trees that were 60 to 70 years old at that time. Mr. Jarvis testified that in 1994 there were trees on this island that were 40 to 42 inches in diameter, which would have made those trees at least 60 to 70 year old in 1994. John Paul Stevens: Mr. Bayless, what is the difference in altitude between the ordinary high water mark and the zero gauge level on the Mississippi River? Robert R. Bailess: According to Mr. Winkley, Justice Stevens, it's 35 feet. According to Mr. Winkley. I don't adopt Mr. Winkley's testimony. I don't accept his definition of an island, but at Lake Providence, it's approximately 35 feet, according to Mr. Winkley. Antonin Scalia: What do you think it really is? What's your view? Robert R. Bailess: The Corps of Engineers establishes a standard low water, which is then termed zero gauge. John Paul Stevens: Right. Robert R. Bailess: The top bank is in the neighborhood of 35 feet. When we visited there in May of 1994, the river stage was 46 feet on the Vicksburg gauge, which at Vicksburg is 3 feet above flood stage, so it was above top bank by at least 3 feet. John Paul Stevens: Well now, on your... when you talk about the land being visible, are you talking about there being enough land above the ordinary high water mark, or enough land above the zero gauge, when you try to define the island? Robert R. Bailess: Your Honor, above zero gauge, Stack Island was a tremendous island in size. John Paul Stevens: All right. Robert R. Bailess: At-- John Paul Stevens: But which is the significant standard for us to look at, zero gauge, or high water mark? Robert R. Bailess: --Our position is standard low water, Your Honor. Now, let me mention this. Mr. Winkley testified that-- John Paul Stevens: Well, is standard low water the same as zero gauge? Robert R. Bailess: --Pardon me? John Paul Stevens: Is standard low water the same as zero gauge? Robert R. Bailess: Yes, Your Honor. John Paul Stevens: I want to be sure. Robert R. Bailess: Mr. Winkley testified, when they came up with this proposition that to be a true island it had to be above mean high water, that's the term that. Louisiana came up with. When we asked Mr. Winkley, well, what is mean high water, he said he didn't know. He did not have any definition, nor did the Corps of Engineers, nor did any other publication that he knew of publish a definition for mean high water on the Mississippi River. So we asked, well, what is ordinary high water? The same reply. So what Dr. Winkley did is, he then came up with a definition that an island has to be above top bank. He attributed that definition to himself. Antonin Scalia: And top bank means what? Robert R. Bailess: According to Dr. Winkley, it is approximately 35 feet above zero gauge which, to determine that, what he did in his testimony was, he took a period of time, and he plotted heights of the river during the 1870's to the 1880's. He said the reason he did that is because it was before levees. Therefore, when the river got out of its banks, it had no barrier to hold it up. But since you have levees, of course, the top bank, according to him, is really... you can't define it, because levees hold the water in. It confines the water. John Paul Stevens: But now, there are levees in this area. Robert R. Bailess: Yes. Yes, Your Honor, there are-- John Paul Stevens: And how high are the... what is the top of the levees, how high above the-- Robert R. Bailess: --I can't tell you from memory, but I believe I am correct in saying this, that the 50-foot contour on Stack Island that exists according to the 1993 hydrographic survey that is in evidence is at least as high as the top of the levee. David H. Souter: --Did I understand you to say earlier that even accepting the other side's definition of an island as requiring land equal to or above, what is it, top-- Robert R. Bailess: Top bank is what they say. David H. Souter: --Yes, that Stack Island would qualify? Robert R. Bailess: That is correct, Justice Souter. David H. Souter: And qualified in 1881? Robert R. Bailess: That is correct, and Dr. Winkley admitted that. David H. Souter: And do I also understand... you didn't say this explicitly, but I took this as implied, and I want to make sure I understand you. Did you also mean to say that if the entire island were flooded today, at a time of high flooding, that that would... that it's condition would simply be what the land on the bank of the river would be if there were not levees there, that the island would be no more flooded than the adjacent bank lands would be flooded? Robert R. Bailess: That is absolutely correct. Antonin Scalia: Okay. Once you establish an island on the basis of, you know, a portion of it is above... at least some portion is above top bank, whatever that means, the next question is, how much of that chunk of mud and whatever is an island? Is the island then that you have identified, does it extend down to the low water mark? Robert R. Bailess: Let me answer that in this way. In Louisiana, the Louisiana riparian owns from the bank to the low water mark. Antonin Scalia: To the low water mark. So it ought to be the same for the island owner. Robert R. Bailess: It ought to be. In Mississippi, the riparian owner owns to the thalweg, all the way out to the State boundary. Now, why would you penalize the Mississippi parties and the State of Mississippi by some cockamamie definition of top bank, that an island has to be at top bank to be an island? It's illogical. David H. Souter: Am I correct that there has never been any dispute in this litigation that at the time of the original patent... which was what, 1881, I think? Robert R. Bailess: It was surveyed in '81-- David H. Souter: Okay. Robert R. Bailess: --issued in '88. David H. Souter: All right. At the time of the survey patent, that Stack Island, the land mass so-called at that time, was an island by legal definition. That has never been contested, is that correct? Robert R. Bailess: To my knowledge, it has never been contested, Your Honor. Antonin Scalia: Okay. May I ask one more question? Suppose the island does... does disappear and reemerge, does that mean all bets are off? I mean, what's... is it the same island, or do you have to start all over again? Robert R. Bailess: Your Honor, if it truly disappeared by the natural processes of the river... that is, the channel of the river scoured that island away, then the island in my opinion would be no more. That would not destroy title to the land under the water, though, and in Mississippi the riparian owner would own to the thalweg, which would be to the State boundary, so it wouldn't disturb title, necessarily. Now, if that island came back in the same place, then conceivably title would never be disturbed, but there is absolutely no proof in this record that Stack Island washed away. David H. Souter: I was going to say, we don't have to get into that issue on your theory, because there is at least an evidentiary basis for viewing the facts as the master viewed them, so you don't want us to get into that. Robert R. Bailess: That is correct, Your Honor. Stephen G. Breyer: Is there some book that has... just as a matter of law that has this thing about top bank in it? I mean, it's making me a little nervous. I think there are some rivers that have very high banks, like the cliffs of Dover, or something, and it would seem amazing to me that if you have a little island in the middle of a river with thousand-foot banks on it, that suddenly people start saying it isn't an island, but I mean, is there some legal reference where they explain this? Robert R. Bailess: Justice Breyer-- Stephen G. Breyer: Which is the one-- Robert R. Bailess: --Mr. McCartney asked that question to Mr. Winkley. What if the Mississippi Bank is 1,000... I mean, 100-foot cliff, and the Louisiana bank is... is at your top bank. Mr. Winkley couldn't really answer that question, Your Honor. Stephen G. Breyer: --Aside from this, if we're going to state a proposition of law in some of these opinions, I would like it, you know, to be accurate. The thing I want to know, where do I look this up? Where does it say? It doesn't seem intuitive to me that it would be. Still, whatever Sicily... I mean, I don't know what the bank is of Sicily compared with the southern boot of Italy, but you see the problem. Robert R. Bailess: Yes. Stephen G. Breyer: Where would I look-- Robert R. Bailess: Yes, Your Honor, and I would point the Court to two cases. One is the case of Scott v. Lattig, which is cited in the brief, which gives a factual basis in that case for an island. It doesn't say that this Court made the determination for all legal principles that you have to have this to be an island, but in that case, it had, really, four things. One was, they said... this is factual things. This island, in Scott v. Lattig, was 3 to 5 feet above ordinary high water. 2) It was covered for the most part with wild grass, sagebrush, and young timber, and 3) it was... had substantial evidence of permanence, and 4) that it had been there when Idaho became a State. Antonin Scalia: --You never heard of the term high bank before, did you? Robert R. Bailess: I have used the term myself, high bank, a number of times throughout this litigation to describe the bank coming from Louisiana or Mississippi where the bank makes a severe slope coming off of the flatland down into the bed of the river. I've used that term high bank. I may have even used the word top bank, but not for the purposes of defining an island. The only other case-- David H. Souter: You had a second case... Smith v. Lattig, and you were going to refer us to a second case. Robert R. Bailess: --Thank you, Justice Kennedy, I was going to do that. The other case is a circuit court of appeals case. It's Uhlorn v. U.S. Gypsum company, and in that case the Court held that the elevation of the land was not the deciding factor in determining whether or not a State boundary would be lost, or to say it a different way, it did not have to reach an ordinary high water mark in order for the State boundary to remain... in that case I don't remember if it was to the west or the east or the north or the south, but for the State boundary to remain where it was when the change in channel occurred. Ruth Bader Ginsburg: Mr. Bayless, in a case like this, does either side have a burden of proof? Robert R. Bailess: Your Honor, it is our position that Louisiana had the burden of proof. They filed this original action. We still take that position. I'm a little different in representing the State of Mississippi than Mr. McCartney is. He filed no counterclaim. Mississippi filed a counterclaim to Louisiana's original complaint claiming that it was under Mississippi sovereignty, and we proved that, so as between Louisiana and Mississippi we had maybe an equal burden of proof only because I filed the counterclaim. I refer the Court to the case of Kansas v. Missouri. I don't remember the date of that. I think it was a 1913 case, but in that case this Court held that the party who filed the original complaint had the burden of proof in an original action. If I could review my notes just a moment. Kansas v. Missouri is 322 U.S. 213, 1944 case. John Paul Stevens: I think your moment for reviewing your notes has just expired. [Laughter] Robert R. Bailess: Thank you, Your Honor. John Paul Stevens: General Keyser, you have a little over a minute left. Gary L. Keyser: Thank you. First, I'd like to address the question of where the book definitions come from. On page 6 of our brief, we tell you where three of them come from, from U.S. Coast and Geodetic Survey, the Department of the Interior, and the Corps of Engineers. On page 19 we cite the Government Land Office book Manual of Instruction for the Survey of Public Lands, where the Government surveyors were given the same definition used by the Coast and Geodetic Survey and the other Government agencies which follow the Hague Convention of 1938 and the Geneva Convention on the Territorial Sea and Contiguous Zone. Sandra Day O'Connor: And what is that definition? Gary L. Keyser: A body of land entirely surrounded by water at ordinary high water. That's used in international practice, domestic practice on the rivers, U.S. v. California, U.S. v. Louisiana, all-- Stephen G. Breyer: Yes, all right, but then the issue, it's ordinary high water is the correct term-- Gary L. Keyser: --That is the-- Stephen G. Breyer: --not something like a special median extra-high water, and not top bank, so we should disregard those terms in your view, is that right? Gary L. Keyser: --Except that top bank is the same as ordinary high water. Stephen G. Breyer: It doesn't mean, really, the height of the bank. Gary L. Keyser: No. No, it doesn't. I can explain that, but it doesn't. John Paul Stevens: Thank you. The case will be submitted.

Earl Warren: Number 31, Gwendolyn Hoyt, Appellant, versus Florida. Mr. Ehrmann. Herbert B. Ehrmann: May it please the Court. So far as I know, this is the first case before this Court involving the issue as to whether a woman may be tried by an all-male jury and convicted under a statute which virtually excludes women and an administration of the statute which almost makes certain that there will be no women. We meet that issue frontally in this case. Gwendolyn Hoyt was tried on information in the Superior Court or in the court of criminal record of Hillsborough County, Florida. She was charged with killing her husband and the information stated that she was to be tried for second degree murder. A second degree murder in the State of Florida is defined as follows: “When perpetrated by an act imminently dangerous to another and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual, it shall be murder in a second degree and shall be punished by imprisonment in the state of prison for life or for any number of years not less than 20 years.” In other words, the distinction of a second degree murder from manslaughter was a state of mind. Mrs. Hoyt pleaded not guilty and not guilty by reason of temporary insanity. The jury could have found her not guilty, could have found her guilty of manslaughter or could have found that she was guilty of second degree murder having a depraved mind. Florida counsel who tried the case, and by the way he is the courtroom today, challenged the jury panel of approximately 60 male jurors with a motion to quash. He challenged it on two grounds. First, that the statute under which the jury was selected was a denial of equal protection and due process. And that the method of administering the statute by the jury commissioners was also a denial of equal protection and due process. Florida is one three states which has a jury chosen under a statute which says that women are qualified to be jurors and then goes on to say that only those women who register with the clerk courts may be called. Potter Stewart: There are additionally three states, are they not, Mr. Ehrmann -- Herbert B. Ehrmann: There are additionally -- Potter Stewart: -- which should -- do not -- Herbert B. Ehrmann: -- three states which exclude women entirely. Potter Stewart: Right, right. Herbert B. Ehrmann: So that there are six states today, which either exclude women entirely or provide that they must volunteer. Now what happened in Florida is apparently what happens -- what has happened in states -- other states where they had this type of statute, we have cited in -- on the brief the reference to various authorities, mainly that where women have to volunteer for jury service there’s practically no pool out of which women can be drawn. It happened in New York and it's happened in other jurisdictions because apparently the -- to take the initiative and volunteer for jury service is an obstacle. One wonders how many men would be available if they had to volunteer. Felix Frankfurter: One of the argument as to women suffrage was that women would be more aggressive or at least more alert (Inaudible) than men. Herbert B. Ehrmann: Yes. Despite the fact that I shall argue that women and men are very different, they have both actuated by the same impulses on many occasions when one is to invite themselves to public service. Felix Frankfurter: Don't stress that too hard. Herbert B. Ehrmann: Pardon? Felix Frankfurter: Don't stress the equality of behavior between the men and women too hard. Herbert B. Ehrmann: Well, I thought I qualified it by saying there are certain particulars. Felix Frankfurter: You'd get into trouble (Inaudible) -- Herbert B. Ehrmann: I'm afraid I would. That's why I tried to be conservative in my statement. Earl Warren: I don't suppose you can say either that women are less active in political life than men, would you Mr. Ehrmann? Herbert B. Ehrmann: I would say that they are less active for certain reasons of tradition, and custom, and culture, but that they are very active in public life today, extremely so. In fact, one out of every 20 delegates to the United Nations is a woman. So that one out of 20 delegates in United Nations is a woman, but only four tenths of 1% of the eligible women in Florida registered. In 10 years from 1947 to 1957, 218 to 220 women registered for service on the jury. In the last five years, only 35 registered for service. Potter Stewart: Is that where, in the State of Florida, or in this county? Herbert B. Ehrmann: That's in the county. Potter Stewart: In this particular county? Herbert B. Ehrmann: In this particular county. So that out of 46,000 women eligible for jury service in Hillsborough County, only 220 were available as having registered. Felix Frankfurter: Have we got any -- have we any statistics as to the number of women that can serve, that are eligible in the federal courts in the Southern District of New York that can serve? Herbert B. Ehrmann: No, I do not have those statistics. I do know this, however, Mr. Justice Frankfurter knows that New York now has a different statute. Women may be exempted because (Inaudible), but nevertheless, there are many women serving on juries to the State of New York. So we have here a demonstration coupled with authorities who confirm that that's what's happened in other states that this type of statute just doesn't work and one wonders whether it was intended to work. I am reminded of Mr. Justice Black's remark that whether ingeniously or ingenuously women -- a certain class may be excluded. The effect of this is to remove women almost entirely in the jury list. Now, we come to the question of the administration of the law and we have this situation. The testimony, it is in the record, in the case that this is what happens. In this county they're required to make up a list, a reservoir of 60 thou -- of 10,000 names available for jury service and out of that 10,000 names a panel is selected. In this case, the jury commissioners through their clerk or through their clerk -- or through the clerk of court testified that they put in 10 names each year and approximately 10,000 masculine names, so that whereas on the operation of the statute only one-third of 1% would be available for jury service, when the jury commissioners got through only one-tenth of 1 % were available for jury service. They gave no explanation of this other than to say that they had always done it and this was the testimony on page 17 of the record. The lady who made up this list of 10,000 names said, “Mr. Lockhart told me at one time to go back approximately two or three years and get the names because there were recent women.” And she said, “Well, the reason I placed him is, I went back two, three, or four years and noticed how many women they had put on before and I'd put on approximately the same number.” That is for four years, they had put only 10 women's names in and she did the same. John M. Harlan II: When did the statute in Florida (Inaudible)? Herbert B. Ehrmann: I think 1927, yes. John M. Harlan II: (Inaudible) Herbert B. Ehrmann: I do not know. I only have a guess. Felix Frankfurter: They probably exclude it altogether, weren't they Mr. -- Herbert B. Ehrmann: I think that is so, but I would be guessing. Now on page 19 of the record, we find that this took place. They used up 2500 names of 10,000 from the year before so that the jury commissioners then were putting a new 2500 names into -- to make up the 10,000. They couldn't use the names of those who've been drawn so they put in another 2500 names. Now when it came, if Your Honors please, to the second 2500 names, no women at all were put in. And when asked why that was so, they said, “Well, we had 10 names in there that weren't drawn from the year before, so we just let them ride.” So that apparently for years also, they just kept these same 10 women in there, in the -- as available jurors and never went to the women's list at all and this is her testimony. “In 2500 that you added, were there any new women added?” “No -- there were -- no, there were no new women added.” “No new women added at all?” “No, just the ones that were in the box still of the 7000, which were those that were left from the preceding year.” “So then on March 8, 1957, no women's names were added to the jury list?” “Well, they weren't added, no. We just used the ones we had” and then a question by Mr. Hobbs, “In putting this in March 8, you didn't pay a bit of attention to this list at all,” meaning women's list, “You didn't use this list at all?” Answer: “No, we just used the women that were left in the box.” There was no explanation for this. I think it was just -- it must have been that (Inaudible) the rest of the testimony, they just weren't taking it seriously, that's all.” Service of women on jury, hardly any of them volunteered. They paid no attention to the duty to see that a representative jury was chosen. Now, this absence and exclusion and limitation of women is highlighted by the fact that of this particular case. The issue in this case as told by the Judge Rothman's majority opinion was the effect on the defendant's mind, state of mind, of the events which she described in which the court found to be with -- without dispute to be the facts. You see, the jury in this case was not called upon to reconcile conflicting facts. There is no doubt that Mrs. Hoyt struck her husband. That he was sent to the hospital. Immediate medical attendants couldn't help him. He died during the night. So that there was no issue of fact as to her committing the act was concerned. The only issue before the jury was what effect did the marital discord at her attempts to get her husband to come back to live with her at his flat as you will see from the judges -- statement her flat -- that his flat refusal have anything more to do with her in his declaration that he was through and he is going to leave her and her little boy the next morning for good, never wanted to see her again. And it was at that moment which the court describes she happen to have a damaged bat in her hand which her boy had found in an alley during the day, that had left on the floor and just as she picked that thing up, he then signed off. He said he was through with her. He never wanted to see her again and that's when she struck him and struck him several times, apparently in a frenzy. She was an epileptic. You will see here there was no dispute as to her medical history. She was an epileptic with damage to her brain and she went out of control. Now, I'm suggesting to Your Honor that I don't believe a professor at a law school could think up facts of a case which tested this issue of the exclusion of women from a jury more than this. This was a domestic affair. This was a husband and wife matter. This was -- involved all the complex emotions that exists in a relationship of that type, a woman's efforts to reclaim her husband, his scorn, her outburst. Now apparently, the men thought that what she did was evidence of a depraved state of mind. We don't know what women would have done on that jury, but shouldn't she have had the chance of having a woman on that jury who would have said that -- now, wait a minute, this woman saw her home, her husband, and a father of her child go away. In one final statement she made and that came at the climax of the day of considerable emotion in which she had struggle to reclaim. Maybe she wouldn't have said it, maybe it wouldn't have any (Inaudible) -- wasn't she entitled to have people who think like that on the jury. We have put in on the brief here references to sociological studies showing the difference in approach frequently between men and women. I think they tend to backup Mr. Justice Douglas's statement that they're not fungible, men and women are not fungible. That women emphasize more the home, children, husband, their approach is far emotional. They are mediators rather than aggressors in discussion and after all, I don't think that these studies tell us anything we don't know. They tend to corroborate the obvious because all of us know whether it is from literature, what every women knows by berry or (Inaudible), men and supermen or -- that celebrated song that in My Fair Lady, why aren't women like men, that there is a difference and they think of as different. And that while individual women will be different from men about -- perhaps be not so very different from men -- as a class they are different. I am reminded of – (Inaudible) was once introduced at a suffragist meeting as a woman with a brain of a man. And in responding to the introduction she said before I regard that as a compliment, I'd like to see the man whose brain I have. Now, Mrs. Hoyt was denied in a case in which it is thrown into high relief, the mediating, the understanding of a woman who sees her home, the father, the child and the husband going away after as I said it, terrifically tensed emotional day. I will not go into all of the facts. You -- Your Honors will read them, but that was the situation. It is a question of evaluating how far these pressures broke her down which would have made all difference in the world between a decision as to whether she was suffering from temporary insanity, whether it was manslaughter, or whether she had a depraved mind. And this jury of 12 men decided that she had a depraved mind. And so she was sentenced to 30 years at hard labor and so we are here before Your Honors. Now I don't think it requires very much argument just to show that women are a different class. We live with these things so much, if Your Honor please, that we forget that they exist. It's like a person who is working in a factory and the hum is constantly going on, he doesn't even notice the hum anymore. My associate, Mrs. Dreben here who wrote most of the brief experimented by asking men what they thought of this case. Well, some were indifferent, some thought -- the moment she would say to them, supposing that a man was being tried for killing his wife or his mistress in a rage and supposing the jury consisted of 12 women, what would you think then and that apparently woke them right up, they said of course, that wouldn't be fair. The thing is that we just get accustomed. There's been no class I might say in all history that has been so universally and persistently discriminate against in women. It's only on the last half century that they've been emerging from a position of inferiority. They are also excluded from eating spices, but I don't notice that they are having sit outs as a result of it, but there is this short division. And -- while -- during the certain periods of time as Your Honors know that -- they were -- they had no legal personality at all particularly if they were married. Felix Frankfurter: You sure you haven't -- you remarked a minute ago, that there's an incitement of breach of the peace. (Inaudible) -- Herbert B. Ehrmann: It might be if I was ordered off the premises, if I follow the discussion right. Felix Frankfurter: And if you're a woman -- Herbert B. Ehrmann: Sir? Felix Frankfurter: And if you were a woman? Herbert B. Ehrmann: And if I were a member of an excluding class? Felix Frankfurter: Yes. Herbert B. Ehrmann: That is true. Now, I'm not going to argue the law at length because to speak frankly, nearly everything I have learned of constitutional law in this area I've learned from you. I mean the last 10 or 15 years has been remarkable for a development of the law relating to this whole question of the selection of jurors, both in the majority opinions, in the dissents and the concurring opinions for different reasons. One by one, the early distinctions have been removed by this Court such as that it relates only to color and race because the Congress have passed the statute on that subject. Or, that you have to show prejudice to show denial of equal protection, or the fact that -- our concepts of equal protection have been changing. I remember in one of the cases Mr. Justice Frankfurter has said, it's about time that we recognize the fact that we now have a different perception what constitutes equal protection. This Court has been bringing in many of the judges that are sitting here, have been bringing the constitutional question on the selection of jury abreast of the times. There's no longer any distinction as to it -- that if a class is an economic class or if a class is not one of race or color but of a nationality or of any other group. In the Hernandez case which firmly states that if a defendant is a member of a class which is excluded and there is no justification for it, it is a denial of equal protection, and that's the situation that we have here. I suggest to Your Honors that the only issue that we have is whether or not there is a sufficient justification for this statute. If there is, then the statute is constitutional, but it's no excuse for the behavior of the jury commissioners who arbitrarily limited what little chance there was. But what justification is there for the statute? The trial judge himself who apparently belongs to the old school, if you read his ruling on this subject that women were descended to the level of men when they got equal rights, even he said it's a silly statute, but it's not for me, it's for higher court to say whether it's constitutional. It's true, the majority opinion goes back to the women's places on the home and urges that, but the majority opinion doesn't -- I mean the minority opinion also regards to law as a completely unjustifiable law. Women are fully participating in all aspects of life today. I -- my attention has just been called to another item here that I forgot to mention. I had stated that there were 218 to 220 women who had registered. The trial judge in justifying his ruling on the administration of the law stated that 27% of the available women were on the 10,000 list and the 10,000 was 15% of the men, 60 odd thousand. How we happened to make the error, we don't know because it was only 3%, 4% and 5%. And apparently the Supreme Court of Florida accepted that error and it was discovered when we were preparing the appeal papers. So that we have a situation whether a very few women -- the women were cut out on the jury commissions and then the judge who tried the case in his ruling through a gross error misrepresents the number that were available. Felix Frankfurter: Mr. Ehrmann, later -- December 1946, this Court didn't -- I think I was justified in saying it in my dissent, the court didn't rule that as a matter of due process which under the federal law impliedly include equal protection that the exclusion of women constitutes an inroad upon the Fourteenth Amendment or the Fourth Amend -- the Fifth Amendment. Now, that was 1946, we now have 1961. Would you say to the fair statement of the problem in this case to say that what we really -- what I really have to decide for myself is to what extent -- the law still reflects history, is that a fair statement of the real problem? To what extent -- Herbert B. Ehrmann: Well -- Felix Frankfurter: -- would catch-up with this movement of which you spoke, the -- Herbert B. Ehrmann: Yes. Felix Frankfurter: -- what extent -- Herbert B. Ehrmann: Well -- Felix Frankfurter: -- of the decision -- Herbert B. Ehrmann: I don't know but -- Felix Frankfurter: -- exhilarate on constitutional grounds. Herbert B. Ehrmann: Well, the Fifth Amendment as I understand it has not been incorporated in the rule that it applies to states. But I would -- I want to answer Your Honor's question. Where we have a question of justification, I want to answer to the best of my ability, where we have a question of justifying a state statue, it seems to me that we should not justify a 20th Century anachronism by justifications that might have been valid 100 years ago. And I think Your Honors, you're one of the first to recognize that with in some of the decisions that we are not using ancient justifications to justify injustices of today. Felix Frankfurter: Is that a -- I can think of other justifac -- other consideration, namely, if women are as politically aggressive as they are, that they really want not to have a system like this operate whereby they have to come forward and say, I want to serve or that a legislature may take that into account. That they expressed really the feelings of the women at large as a group instead of being discriminating against and this statute may be deemed a reflection of their desires. If they really wanted to be called like men, there'd be no trouble about getting that legislation through even in Florida, would it? Herbert B. Ehrmann: Why? I suppose. Well that, I couldn't say because I don't know -- Felix Frankfurter: No. But (Voice Overlap) -- Herbert B. Ehrmann: -- where the control lies in the power of the legislature. They -- but I would say this that I am not here urging the right of women to serve on juries. I am here defending a woman who is sentenced to 30 years at hard labor because she -- at least I won't say because but without the benefit of having women on the jury. Now if the statute operates so that women don't come on the jury and if there is no such statute women are on the jury, then I don't think we need to discuss it. Charles E. Whittaker: Mr. Ehrmann, may I ask you please sir. After the 1956 list of 10,000 had been prepared and 3000 of them had been we will say, used up lessens only 7000. Had any women registered for jury service before the 3000 names were put back in to bring the list up to nine -- to 10,000? Herbert B. Ehrmann: Mr. Justice, we do not know. We -- all we know is that between 1952 and 1957, only 35 women registered. That's as far as our knowledge goes whether -- where any new registrations in that last year or not, I don't know. We haven't any record. Felix Frankfurter: There are of course two questions -- I beg your pardon. I'm sorry. Charles E. Whittaker: Well that's -- that's alright. Herbert B. Ehrmann: But we only that in five years, only 35 women registered but whether any of them registered the last year just before this year, we don't. Charles E. Whittaker: It was of significance to my way of thinking because suppose the administrators of the jury list said despite the fact women have elected to serve by registering, we're not going to pay any attention to it. We'll put back to 3000 all men and leave the women out. That might very well be a systematic discrimination against women, but if there weren't any women who had elected to register, it couldn't be said, could it, that there was a systematic discrimination? Herbert B. Ehrmann: Well, where year after year for four or five years, they limit the number to 10, Your Honor I suggest that that alone would be discrimination. There were two -- there were in addition to the 10 that were in, there were about 208 to 210 other women that could've been chosen just as there were these men. We don't know -- you see, men didn't have to register. They were already on the elector's list. Charles E. Whittaker: Yes, but there 60,000 men who are eligible you say and only 10,000 men and women on this list. Herbert B. Ehrmann: That's right. Charles E. Whittaker: In the wheel as I would call it. Herbert B. Ehrmann: Yes. Charles E. Whittaker: So, there might be some disparity, but there wasn't an exclusion of either sex from the wheel? Herbert B. Ehrmann: Well, there certainly wouldn't have been any exclusion of men, where 10, 000 names were put in, all male. Now, Mr. Justice Whittaker, don't you think that if they don't put in more than 10 names whether they're the old 10 names, or new 10 names, that that is an arbitrary limitation? And this Court has decided in several cases that limitation is just as bad as exclusion. Now -- Charles E. Whittaker: I don't know what the mathematics are. It'd be 218 to 64,000, wouldn't it? If 218 women who have registered and 64,000 men were -- Herbert B. Ehrmann: Yes. It would be by one third of 1%. Charles E. Whittaker: And there were 10 out of -- 10 women and 990 men in the wheel. Herbert B. Ehrmann: Three tenth of 1%, approximately. So they reduced the chance from one third of 1% to one tenth of 1%. It's a pitiful chance in any event but they reduces that. Felix Frankfurter: May I ask you this question before you sit down. There are two questions as I see it in this case. One is -- well, one is that the statute as such requiring them to come forward and express willingness to serve as a juror, if that as such is bad, offends due process. Herbert B. Ehrmann: Yes. Felix Frankfurter: The other question and which I wish without arguing, you just summarize what the -- what your case is, the other problem is that even that system, even that system which allows them and to come forward has been so administered that in its actual operation it doesn't give voluntariness an adequate chance to operate. Herbert B. Ehrmann: Well Your Honor summarized it so well, I see no reason why I should violate my red and white light and talk any further. Felix Frankfurter: You do not violate anything if you answer the question. Herbert B. Ehrmann: Well, I agree a 100%. Felix Frankfurter: But if the -- what is the supporting evidence in the latter, for the latter statement namely, that as it operate -- as it was administered, the element of voluntariness wasn't actually operating. Herbert B. Ehrmann: Well, the only way that we can gauge this is by the -- is by the way the list itself was administered and they administered it by arbitrarily limiting to 10 each year, the number that were available. Now -- Felix Frankfurter: Not even the same 10 or it doesn't matter, just -- Herbert B. Ehrmann: It doesn't matter. The fact that they put the same, it didn't -- they did the same -- and they didn't even look at the list indicates that they thought it was a joke. Felix Frankfurter: So that the area -- Herbert B. Ehrmann: But other than that, if there's no legal difference between the two. Felix Frankfurter: So that the element of chance by which you pull out one ticket rather than another was necessarily reduced if you only add 10 out of which to pay? Herbert B. Ehrmann: Right. Felix Frankfurter: That's your point. Herbert B. Ehrmann: That's it, exactly, yes. Earl Warren: Thank you Mr. Ehrmann. Herbert B. Ehrmann: Thank you. Earl Warren: Mr. Georgieff. George R. Georgieff: Mr. Chief Justice, may it please the Court. Before I address myself any to these propositions, I'd like to thank the indulgence of the ladies in the audience and of course my good wife wherever she happens to be for the things that I'm about to say. They may not quite square with what woman would think. First, I'd like to say that a pronouncement made here today that this is the first case that has come to this Court's attention involving this precise problem is not quite correct. It is the first case in which we can expect an opinion of one sort or another, but in the case of State versus Drafer which I have cited in my brief that came out of Louisiana, it pays me to admit that all you did was deny cert. I could've used an opinion has it been on my side, but you didn't do that, you simply denied certiorari. Their statute is literally a mirror of this one. It requires that they go to their District Courts and register their wish to be considered as jurors. I don't know why you did, therefore I'll discuss it no further. Earl Warren: Was the defendant there a woman? George R. Georgieff: Yes indeed. It's a red flag case in every particular except that no opinion was written. Now, I think that the first question to be determined or discussed in any case is whether the statute is constitutional because if it is, then and only then do we have to get to the proposition of whether this jury commission functioned properly or it didn't. Now of course if it isn't, there's no point discussing that. It's sort of like putting the cart before the horse. I say it's constitutional because you have said it was in Strauder versus West Virginia and you haven't yet changed your mind. You may after today, I don't know that, but in any case, all of the glowing statistics that we have to support the proposition that women are no longer the backward crew that we have made them since time immemorial, or I take it brought forth to demonstrate one thing, that is to say that they are eminently qualified to serve as jurors. I do not say they're not. They probably were many years ago, but I do say that when this Court considered the proposition in making its dictum statement in Strauder versus West Virginia, I do not believe that it made that pronouncement because women do not comprise 38% of the working force, nor that they have made inroads on politics, business, economic, and social levels. I think they did it because of classic differences that no attainment can change. They are women because they are women. They have functions to perform that no ascension of the scale can make any difference here. They bear our children. They're the ones (Inaudible), not the men. We may find isolated cases of this but in the main, this is their function until that is changed we can't even address the proposition. What move this Court to say what it did in Strauder versus West Virginia was not the reverse of it -- of the statistical approach, but rather that there were things that women were confined to in that their very nature required them to perform to the exclusion of men. They have to take care of these things not the men and it was likely the opinion of this Court that to require them to serve in this capacity would make it difficult for somebody to raise these children, to prepare the food, to keep the home, and to do other things that woman customarily do and to this day do. Now -- Earl Warren: I wonder if -- I wonder if that wouldn't be capable of other -- another kind of solution there, not everyone has small children that she has to raise. There are great many of them that have none, a great many of them that are married, there are great many of them whose children have become matured and I wonder if they couldn't -- who are better have a statute that would exempt them if they had home duties of that kind just as we exempt a lawyer or a doctor or a minister of the gospel and so forth. But I don't think we can start can we with any premise that all woman should be disqualified because a great many of them are the mothers of our children. George R. Georgieff: I did not mean Mr. Chief Justice to start with that premise, carry it through or bring it up in the future. I will address myself to the position you've taken in just a few moments. Earl Warren: Oh, go ahead. George R. Georgieff: First, our statute does not exclude any women. In 1946 when this was considered, we had a statute 40.01 which is precisely the one we have here which made no reference to women. They could not serve on a jury on Florida until 40.01 was amended to read as it presently does and as it's cited in the brief. Now, that does not exclude women in any degree whatever. They are required to be qualified electors just as men are. The only further requirement is that they go to somebody and say, “Look, I'm not possessed of any of these infirmities that you've recognized over the years, therefore, consider me when you pick up this jury list and include me in it. I have time and the inclination to do this.” If we had said or if we were here on the proposition that women cannot serve on a jury, it might well be a different story. I suppose I'd be a little more hard put to answer the position that you've taken Mr. Chief Justice, but now, this simply says, “You are the ones that must go to the judge if we don't have this”, and say, “Well look Your Honor, I have seven children at home and who is going to take care of them.” And he says, “Alright ma'am, you don't have to serve on this jury, go on home and take care of your family.” So what is the difference if she now decides that because she does have the same seven children, she won't go to the clerk unless and until such time she has the time, inclination, and the ability to do so. They have throughout their brief taken the position that why do we have something like this when the judge enjoys a broad discretion and he can release somebody of the requirement of jury duty, especially if they have these pressing problems. I concede that he does and if he does, what difference does it make that she exercises it affirmatively by going to court in response to the summons, or does it beforehand according to the statute. If she is the one who is able to determine whether she can and will, then surely she should be able to do it now and this was substantially the same thing that you had in Fay, Fay versus New York case. Now, there the court concluded that it did not violate due process to have a jury that was enlivened by a woman. Now it's true that a woman wasn't the defendant in that case, but even in the dissent it the Fay case, nobody made any mention of the fact that women had been effectively excluded, such as they say here today. The point is, I made the distinction which I think is a valid one, and of course the court may not agree, but I said the difference is in availability and eligibility. The law does not say that women aren't eligible to serve as jurors in Florida, It simply says, “If you want to become available go to the clerk.” Now they are the ones who guard the availability. If they don't go, they're not available. If they do, let's presume that the 46,000 in Hillsborough County had all of the sudden decided that they wanted to serve or be considered for service as jurors, and they all went into the clerk, their argument must be just as sound if every one of them were down there. Hugo L. Black: May I ask you -- George R. Georgieff: Yes sir. Hugo L. Black: What would think about a law that said, “No men should serve on the jury unless they come up and say they want to do so.” Would that (Voice Overlap) -- George R. Georgieff: I should imagine that -- Hugo L. Black: Would that raise any different question? George R. Georgieff: Not to me sir, no it wouldn't. As to the difference between the two it would. Hugo L. Black: As to what? George R. Georgieff: Well, in other words, if I take the position that it makes the difference if we say that to men, then obviously my position now is got to be fallacious. All I'm saying is that the reason we have this difference with women is because they are the ones that do have all these infirmities that no amount of ascension on the social scale can erase. Now that's one that I can't change no matter what I do, so it's unlikely that this would be the case. This is unfortunately a man's world and for some time, I must -- I'm afraid it's going to remain one and I don't know that I can in good conscience -- Hugo L. Black: At least in theory. George R. Georgieff: Well, perhaps so. I stand corrected to that extent, but -- alright, let's just say that it is, whether we honestly believe it or not, but until such time as on the surface it becomes something other than that, I can't in good conscience say, “Well I could see that this would be the same situation if we said that men had to register.” In other words, it's like envisioning $700 billion. It doesn't mean anything to me. I don't know how they could do this with the structure of mankind being what it is. And -- Earl Warren: When you speak of infirmities, fundamental infirmities for this service, do you mean anything except that women are homemakers? George R. Georgieff: No, an ill choice of word Mr. Chief Justice. All I mean is the traditional reasons that women have to stay home. In other words to prepare meals -- Earl Warren: Yes. George R. Georgieff: -- to raise children -- Earl Warren: Yes. George R. Georgieff: -- keep the house, etcetera. Earl Warren: Yes, yes. George R. Georgieff: Nothing more. Felix Frankfurter: Will you -- make a difference, how many women -- what the experience in other jurisdictions has it been as to excuses given by women to serve on juries where they're required to serve? George R. Georgieff: I'm afraid -- Felix Frankfurter: Suppose -- George R. Georgieff: I don't quite understand. Felix Frankfurter: Suppose -- I don't know what the -- that's why I asked a question to Mr. Ehrmann, suppose the experience has been because I'm quite sure it has been, that many more women ask to be excused from jury duty than men do, that would a relevant factor in shaping the kind of legislation that a state shape -- that a state shapes (Voice Overlap) -- George R. Georgieff: I quite agree. Felix Frankfurter: -- jury duty by women. Hugo L. Black: I think probably that was considered as a relevant factor in the Thiel case? George R. Georgieff: Yes, as a matter of fact it was, that was the case where the wage workers, the hourly wage workers were discriminated against, Thiel versus Southern Pacific I think. That too probably would be a factor here, but as I say, I think that this statute considering what we had in 1946, as a decidedly salutary effect for the women of the State of Florida. Now admittedly when people are required to go down and do something, experience, I suppose general experience that we can all take knowledge of, judicial knowledge of is the fact that they're reluctant to do so for whatever reason, but my point is very simply, if all 46,000 of them had gone down and registered, essentially the position of the appellant has got to be the same. Because if the condemnation is directed to this requirement of registration, it doesn't matter whether one did or all of them did. If you're going to condemn it because of that requirement, then I don't care whether anyone -- any of them did. It's the requirement that you're after and my point is very simply that it isn't a requirement. It's simply allows them to determine beforehand whether they will or won't. Charles E. Whittaker: Well, the question you're talking about now, if I may say so, appears to me as answered by the proposition of whether there is an exclusion, isn't it? And here if the women may elect to serve if they wish, all or so many as do, none were excluded, do you think so? George R. Georgieff: Mr. Justice Whittaker, I think I first said at least in the first few pronouncements that I've made that there was no exclusion of any kind. And then I further said that I made the distinction between eligibility of women for jury service and availability and I think that constitutes a two-fold answer. There is no exclusion whatsoever. Now it may be that no woman is ever picked by chance out of the jury box. I don't know that that will ever happen but it may not and then again you've got to condemn. I simply say that this doesn't exclude any of them if they want to serve. Now, these cases that they have cited for the proposition of this has got to be condemned because of a systematic exclusion there was that precise thing either by statute or by operation. Charles E. Whittaker: Would you agree (Inaudible) George R. Georgieff: Well, I wonder how much mathematics would be involved before I answer that. In other words, if only one had, I don't know what I would say, probably no. Charles E. Whittaker: Suppose the population of the (Inaudible) George R. Georgieff: Yes sir. Charles E. Whittaker: (Inaudible) George R. Georgieff: Well, again I've got to go back to the cases that they have cited in support of their condemnation. Now, what do you decide is a systematic, intentional planned exclusion. Charles E. Whittaker: (Inaudible) George R. Georgieff: Well, is that one -- just a one time, isn't that enough to condemn it, I say, “No.” Charles E. Whittaker: (Inaudible) George R. Georgieff: It's just my opinion. Earl Warren: Suppose you think for a series of -- through a series of years that they have 10 every year and no more. George R. Georgieff: Considering if they had up until 1952 and I maybe a little incorrect in my mathematics, in Hillsborough County they had -- let's say 228 less 35 that registered between 1952 and 1957 which is our critical year, considering that that was so, I should say that if they did that, did not add anymore than the ten, that if it was a requirement that they add, we'd soon run out of women's names if we have no further registrants, because it all turns on whether they come down to register. Now, this business of adding to them each time you have a depleted box, I understand the consternation, but if you have to add in order to serve, in order to serve this idea of not being systematic in your exclusion, then if you don't have enough of them who have registered, what happens when you run out of them? Earl Warren: Well doesn't the fact that you always have 10 show some kind of a system whether it's systematic exclusion or whatever it is, if you always have 10 in the box over a period of years, isn't that some kind of a system? George R. Georgieff: It sounds -- some type of a continuous number. The record doesn't support simply 10, they said 10 or 12. Now of those that were available to them they couldn't simply pick out a woman elector's name for then they would have been violating the law, because it requires that they take only of those who had registered. Now of those that were available to them to select from either this was or was not a representative group. I think it's just as simple as that. Our Supreme Court in writing the affirming opinion did not conclude that Judge Grayson's figures were correct nor did they adopt them. Mr. Justice Drew in writing the majority opinion simply cons -- simply said that this is a representative portion of the available women jurors. Now, obviously if the court disagrees with that pronouncement, then there is nothing I can do, but either it is or it is not representative. Now somewhere along the line, it got to be arbitrary. The jury commission has to pick either this name or that name. Now, of this 228 or whatever it was that were available, they decided somewhere along the line somehow because they're vested with a certain amount of discretion that of this amount, 10 should be a representative number and they did that. Felix Frankfurter: Why they didn't throw in all the 200 odd? George R. Georgieff: Well, that's a good question Judge. I wish I could tell you. I feel a good deal better if they had but unfortunate that's not so. Felix Frankfurter: (Voice Overlap) -- the legal -- is it irrelevant? George R. Georgieff: Well, as I said before -- Felix Frankfurter: (Voice Overlap) – we're not here to answer -- ask good questions, we're here to ask relevant questions. George R. Georgieff: Truth of the matter is -- Felix Frankfurter: (Voice Overlap) -- George R. Georgieff: -- it wouldn't have mattered a bit. Earl Warren: I thought you explained a moment ago that the reason they didn't do it was because if they put more of them in, they'd soon run out of names entirely. George R. Georgieff: Well, I am still addressing myself to the proposition that this statute is constitutional. Earl Warren: Yes, but Justice Frankfurter asked you why didn't -- if -- when you have so few women, why didn't you put in all the women and I thought a little while ago you said, if we kept putting in more and more, the first thing you know, we would -- there wouldn't be any women on the list. George R. Georgieff: Well, if we say, why did we not put in all the 228 or whatever it was, let's say 250 names, why didn't we go on ahead and put in the whole 114,000 qualified electors? It isn't necessary. Felix Frankfurter: Well, I don't understand -- I'm not questioning you, I just don't understand what that means. Suppose, they'd all been put in, would that have -- would that have rendered it and they've picked only and out of the lot there, (Inaudible) to pick three that become jurors, would that have rendered the other's functus or functus, I suppose I rather say, functus officio (Inaudible)? George R. Georgieff: Again, I must confess I don't think I understand the justice. Felix Frankfurter: What would be the consequence if they put in all the available jurors that were on the list, in (Voice Overlap) -- George R. Georgieff: All of them? Earl Warren: The women. Felix Frankfurter: The women. George R. Georgieff: The women. Felix Frankfurter: All the women. George R. Georgieff: Alright. Felix Frankfurter: What -- suppose that (Inaudible) -- and you carry on from there with this consequence, what would happen? What would've happened? You said you wish they had? George R. Georgieff: Well, it would've increased the margin or the percentage opportunity that the appellant would've had of securing one when they drew the petit jury panel. Felix Frankfurter: Well, but that's rather important, isn't it from the defendant's point of view? George R. Georgieff: To be sure, but it would have been equally important if we had nothing there to prevent all of 46,000 women electors in Hillsborough County from being available. Felix Frankfurter: But they weren't and they -- I'm assuming with you for purposes of my question, I'm assuming that the statute is constitutional. I'm now asking you as I asked Mr. Ehrmann, what the actual translation into administration of that system was and out of the available lot, they picked 10 in a total of how many, how many are they? George R. Georgieff: Well, there's a difference judge and -- Felix Frankfurter: (Inaudible) George R. Georgieff: Its somewhere around 228, I think. Felix Frankfurter: No, no, no, in the total jury potential? George R. Georgieff: Oh. Speaker: (Inaudible) Ten out of 10,000. Felix Frankfurter: Ten out of 10,000. George R. Georgieff: Just ten less than 10,000. Felix Frankfurter: Alright. Now just (Voice Overlap) -- George R. Georgieff: (Inaudible) Felix Frankfurter: In the law of probability, if there had been 225 women's names, the chances of drawing a woman's name would have been greater than if there had been only ten women's name. George R. Georgieff: To be sure, no question about it. Felix Frankfurter: To be sure. Now what I am asking you is why didn't they put in all of those names and you said they wish they had. George R. Georgieff: No, I wished they had. Felix Frankfurter: You wished, yes that's what I -- you wished they had. Presumably that would have made a different case, what would have been the difference? George R. Georgieff: Well, at least then, I would be able to come before you and say, “Well now look, they followed the statute as it is and they took everyone of them that they had available.” Felix Frankfurter: Is it -- I'm asking you now, why as a matter of administration, wasn't it an arbitrary administration of the statute to restrict the available drawing power of women to ten out of a total of 10,000. George R. Georgieff: But the record doesn't bear it out to be arbitrary. Felix Frankfurter: Well it -- suppose you said 10 or 12, suppose I give you 15, there's no suggestion that there were more than -- somewhere around that. George R. Georgieff: Certainly not. Let's limit it to 12. I think the record will bear that out. Felix Frankfurter: Alright. Let's say 19, I said two digits, 19. Suppose there were 19 in that, I want to know why with so limited a supply of women and presumably the legislation, lest we suppose that women are a desirable ingredient concept in the jury -- in the jury system. George R. Georgieff: I would say, yes of course. Felix Frankfurter: Yes, alright. So that that was as a policy behind the statute of having women respecting however the special functions of historic reasons or all the other considerations that you canvassed, assuming all of that, it limits the number of available jurors. I want to know why the system was so administered that it allowed the including of woman in a jury actually drawn with so small result on the basis of probability. George R. Georgieff: Well I take it Your Honor, the only -- the only response I can make that's borne out by the record is, if the 10, 12 or 19 that we settle for is representative of those that they had available to them when they first filled the box, that it was representative, if they hadn't used any others when they refilled it. Now, if it wasn't representative, at the time they originally compiled the 10,000, of those 218, that requires a decision to be made by the jury commissioners that in this vast scheme of the jury system we have to have women because it has a salutary effect. They are not required to do that. They are simply required to select people from the list of available qualified electors who in their arbitrary choice are people who are going to be considered as jurors. Felix Frankfurter: But I can think it makes a difference whether you have 10,000 out of which to draw where only a relatively -- or only 200 out of which to draw. Suppose he had only -- suppose only 50 women had come up and said, “We like to serve on juries.” And the jury commissioner had drawn only -- had to put only the name of five women in this wheel, would that be alright? Could it be -- this is allowed in arbitrary choice? George R. Georgieff: It would have to be just as alright as this position in order for me to be sound on all flags. I couldn't take it -- Felix Frankfurter: Well, if there's only two. I don't mean to argue (Voice Overlap) -- George R. Georgieff: No, I understand. Felix Frankfurter: One goes to a certain distance, one has to go beyond that, I don't believe in that argument, that mode of argument. George R. Georgieff: No, I think -- Felix Frankfurter: I just want to know whether a system which inherently by experience has shown to lead only a few women to come forward to be ready to serve as jurors, and if the policy of the state is to have women on jury, that is the policy of the state, restricted though it is, isn't it, whether an administration which arbitrarily limits to so smaller chance of a woman being on a jury having some infirmity of its own, notwithstanding (Inaudible) George R. Georgieff: Well, perhaps so. Perhaps so but I think that if that infirmity, if you back it up by saying, “It's been demonstrated over the years that only a handful of them do come in and register” and of course that's so in Hillsborough County by the actual count that the record bears out, then let's address ourselves in the fact that the legislature should change that. If it's brought to their attention, let them alter it. Felix Frankfurter: You mean, only a handful come in to do what, to serve? George R. Georgieff: To register with the clerk their wish to serve. After all 228 out of 46,000 is not too many. John M. Harlan II: Isn't the real issue on this second branch of the case purposeful discrimination? George R. Georgieff: Yes indeed. John M. Harlan II: Whether or not you can draw the same inference or systematic purpose for discriminatory exclusion of women. In the context that this situation that we have drawn in the context of racial segregation? George R. Georgieff: Yes indeed. John M. Harlan II: Isn't that the issue? George R. Georgieff: I couldn't say it better. Charles E. Whittaker: But there may be admitted some inequality, some discrimination (Inaudible) and not intentionally done, that's alright, don't you think? George R. Georgieff: Yes indeed, precisely. You can look at the record and if you listen to Mr. Ehrmann, he said to you, that they took this lightly, didn't pay any attention, they had simply said, “Oh well, 10 or 12 before, we'll put in 10 now,” that's not systematic plan of exclusion like you've condemn. John M. Harlan II: I suppose a woman under statute who had volunteered and registered, one of the ten in the box who -- since that act of registration and decided their family duties were important. If you made a mistake you'd come down and claim her exception under your statute when she was called for a venire, didn't you? George R. Georgieff: I am satisfied she could. I don't have any doubt of it, I don't believe. Assuming that the discretion of judges is much the same over the country, I'm sure that he wouldn't (Voice Overlap) -- John M. Harlan II: Oh, it wouldn't be a matter of discretion would it? It would be matter of right. George R. Georgieff: Well, if -- John M. Harlan II: (Inaudible) I just want to withdraw my -- George R. Georgieff: Oh, with the clerk -- John M. Harlan II: -- registration. George R. Georgieff: -- of the Circuit Courts, she could pick it up I'm sure anytime she wanted. John M. Harlan II: Anytime? George R. Georgieff: Anytime at all. Now -- Felix Frankfurter: Let me ask you Mr. Attorney, in the actual -- in the actual life as far as criminal prosecutions, what experience can you give to the Court as the presence of the women on juries in the past? George R. Georgieff: Well, I can tell you firsthand about the county in which the state capital is located, which is Leon County and has a high incidence of criminal practice, a petit jury panel in the last four years has seldom, if ever been drawn, that did not include a woman. Now I couldn't pretend to speak for the 66 remaining counties, I don't have any idea and there is no way that we keep track of it and possibly the clerks in the Circuit Court might have (Inaudible) -- might give us some information but I don't really know in Miami -- Earl Warren: How many are in the panel? How many are on the panel? George R. Georgieff: Well of course, Mr. Chief Justice that would of course vary with the right of counsel to reject. I'd -- Earl Warren: Yes, well you -- I understood you to say that at least there is always at least one woman on a panel and -- George R. Georgieff: Yes. Earl Warren: -- and by panel, how large a group do you mean? George R. Georgieff: Well in the capital cases, they invariably have one. In the less than capital, which is a six-man jury -- Earl Warren: Well by panel, do you mean the jury itself on the trial of the case? George R. Georgieff: The petit jury panel. Earl Warren: You -- yes. George R. Georgieff: Yes. Earl Warren: Well, by panel -- George R. Georgieff: Isn't that your question? Earl Warren: -- that's what you meant those from which the trial jury was selected? George R. Georgieff: Oh, the number that are registered? Is that -- Felix Frankfurter: I wanted to know what the Chief Justice has asked you? How many served on the trial jury? It's what I want to know, in the county of yours, in capital cases? George R. Georgieff: Well, by actual count, that'd be difficult since the number of them do it by repetition. If you -- Felix Frankfurter: But you said the normal (Inaudible) murder -- certain in capital cases or -- George R. Georgieff: Yes sir. In the past four to five years which is the only time about which I can speak of (Voice Overlap) -- Felix Frankfurter: Did you say you have a jury of six in -- what you said -- George R. Georgieff: In anything less than capital, it's only a six-man jury. It's 12 only in capital cases and eminent domain proceedings. Hugo L. Black: Do you refer the panel as complete venire in the selection in a capital case from which the jury of 12 can be selected? George R. Georgieff: No, I had specific reference Mr. Justice Black to the ultimate panel which hears the cause. Felix Frankfurter: There's 12. Hugo L. Black: Ultimate, 12 men. George R. Georgieff: Yes. Speaker: (Inaudible) George R. Georgieff: That's what -- I thought that's what the justices' question was. Speaker: If that wasn't -- Hugo L. Black: How many do you summon in a capital case? George R. Georgieff: Oh, I think they start out in groups of 75 and they exhaust that if they have to then go to the next 75 and -- Hugo L. Black: Do you know anything about that? George R. Georgieff: No, sir. I -- I never come to that stage of it. I couldn't tell you. Essentially, since my time is about to expire, my position is very simply, that if anybody limits the number of women that are available as potential jurors in the State of Florida, it's the women themselves. Now, if that is bad, because they don't demonstrate an interest or a wish to serve in this capacity, then let them modify it by legislative addition or some other way. At this date, at this precise date in an eminent domain proceeding in the State of Florida, no woman is permitted to serve on the jury. We're not here on that, but I bring it up for whatever its worth. If they don't demonstrate an interest in this, let the legislature take this away and require them to. Now, if they are everything that we have been told they were, and if they are constantly on an ascending scale, then it flies under the teeth of this low qual -- quantity of women who come to the Circuit Court clerk, and say, “Look, I want to serve”. John M. Harlan II: Oh, don't blame the poor women, at least. I think most men, if they were given -- I regret to say, most men, if they were given the same voluntary registration from the (Inaudible) George R. Georgieff: To be sure. I don't think there's any question about it and I -- I myself as I have said it before, I think it's salutary. The other proposition is very simply that this -- this woman did not have a right to a woman on this jury. She simply had the right to an impartial jury, no friends, just an impartial jury. She hasn't said she didn't have one. She just said she'd rather have the other one. I think the conviction should be affirmed and the statute is unconstitutional -- rather is constitutional both on its face, and certainly as it was administered from what they had available. Thank you. Herbert B. Ehrmann: Mr. Chief Justice, I do not know whether you wish to have this information, but it's an answer to the question that you asked. Mr. Hardee who tried this case in Hillsborough County has just given me a note in which he says that in 1956, not one -- one woman has gone on any panel in all the courts of the county. Earl Warren: What county is that? Herbert B. Ehrmann: Hillsborough County. Earl Warren: Which -- well, what's the principal city in that county? Herbert B. Ehrmann: Tampa, isn't? Earl Warren: How large a county is it? Herbert B. Ehrmann: Well, about 400,000 -- I'm about to say Your Honor, about 300,000. Mr. Hardy tried the case (Inaudible) Earl Warren: Yes. About 400,000 people in that county. Hugo L. Black: Is that the county where this case was tried? Herbert B. Ehrmann: Pardon. Hugo L. Black: Is that the county where this case (Voice Overlap) -- Herbert B. Ehrmann: That's the county where the case was tried.

Earl Warren: Number 339, New Hampshire Fire Insurance Company, Petitioner versus Scanlon, District Director of Internal Revenue, et al. Mr. Hart. Jack Hart: Mr. Chief Justice, may it please the Court. This case comes here by way of certiorari to the Court of Appeals for the Second Circuit. The question presented involves the construction of a statute. The statute is a short one, consisting of five lines and is printed on page one of petitioner's brief. It's Section 2463 of the Judicial Code which reads as follows, “All property taken or detained under any revenue law of the United States shall not be repleviable, but shall be deemed to be in the custody of the law and subject only to the orders and decrees of the Courts of the United States having jurisdiction thereof." The question presented is whether under that statute, statute the District Courts had jurisdiction in a summary proceeding instituted by petitioner in order to show cause to determine the claim of a non-taxpayer that his property has been seized and satisfied the tax obligation of a nun. The District Court for the Southern District of New York, expressly declining to follow the Third Circuit, held that the District Courts had no such jurisdiction and dismissed the petition. The Court of Appeals for the Second Circuit affirmed in one sentence upon the opinion below. In this Court, the respondent suggests that the case might be remanded to the Southern District without prejudice to the petitioners requesting that the Court treat the petition as a complaint and that the action then proceed in accordance for the Federal Rules of Civil Procedures. That suggestion of course is no concession at all because in the current posture of this case, the major issue is whether we are required to proceed in accordance with the Federal Rules of Civil Procedure, but whether we have a right would obtain the article quarters of the Court with respect to the time for answer, the time for pretrial proceedings, the time for trial. The facts in the instant case maybe briefly stated. The petitioner, New Hampshire Fire Insurance Company, among other things, is engaged in the business of issuing surety bonds. In 1956, the petitioner issued a surety bond on behalf of a contractor, Acme Cassa Incorporated which had entered into a contract of the City of New York for the construction of a playground. During the course of the work which involved a contract to delinquent taxpayer of $356,000, Acme Cassa became financially unable to continue with the work. The City of New York as obligee, thereupon called upon the petitioner here to complete the work and pay the unpaid bills of Acme Cassa. This, the petitioner did. In the meantime, Acme Cassa had become a delinquent taxpayer and the United States filed notices of tax levies with the City of New York. There came a time then when the City of New York had available for payment some $68,000 and this money was in the form of a warrant to the order of this petitioner. At that time, the petitioner had expanded some $83,000 in completing the work and in paying unpaid bills. The Government had a tax lien in the amount of some $35,000. In New York State, the law is the very well established than in these circumstances. The surety is obligated to the position of the obligee, in this case the city, and that therefore, the money is payable directly to the surety and accordingly the Government's tax lien, which applied only to the property of the anointed taxpayer has no applicability of law at all. Plainly, we don't deal with the question of priority because the property never goes to Acme Cassa, the delinquent taxpayer. In the District Court, the judge said that we were required to bring a plenary procedure. Nobody has said against to whom we are supposed to bring a plenary proceeding and it is submitted to this Court that we are not dealing with the ordinary types of case where you have a plaintiff and defendant. The party difficult to pinpoint in this case is the defendant. The history of the statute, its express language, its evident purpose all make it clear that this property when improperly seized by a person who happens to be a tax collector, but who of course is merely an individual tortfeasor when he seizes the property of a non-taxpayer. That tax as we say very clearly put the property in the custody of the Court subject to the orders and decrees of that Court. And for that reason, what we are engaged in doing here is making an application to the Court to return the property. William J. Brennan, Jr.: May I ask Mr. Hart, as of what date in reference to the filing of the federal tax lien did the surety as you put it, definitely (Inaudible) of the contract? Jack Hart: The surety came in I think after the filing of the tax lien. Mr. Justice Brennan, I would say that the -- in our view, the date of the filing of the Government's tax lien is of no significance. It is of no significance because we are not concerned to the question of priority. The contention is and the law in New York is so well established as not to be in doubt that in these circumstances, the delinquent taxpayer never gets the property right to any of the contract balances and the money goes directly from the City of New York to the surety. We therefore don't fight for money which belongs to the delinquent taxpayer in any sense. William J. Brennan, Jr.: Well, if the -- if that time of the filing of the federal tax liens that you had not yet stepped in use of a contract, to whom did the city at the time of the filing of tax liens owed them? Jack Hart: Well, if there are no money would be loaned. We are talking here about progress payments of the -- in the usual way. There will be a lump sum contract price with prohibitions or payments during the progress of the work as per requisitions made by the contractor in accordance with the terms of a contract. If he fails to perform, then obviously he would not be entitled to get paid. Essentially, that would be the reasoning behind which -- on the basis of which came the conclusion that the surety becomes subrogated to the position of the owner cutting out the contractor altogether. He had no right to get the money because he failed to perform. William J. Brennan, Jr.: Well, did (Inaudible) also arise after the filing of the tax liens? Jack Hart: In this case, I believe it did. I repeat that the -- the term of the filing I think everybody would recognize, in this case had recognized would be insignificant. The -- there has been no issue raised about the merits of this controversy. Nobody has been required to take a position about the right of the surety, but the law in New York is so well established that I don't think anybody would raise any question about the law being what I have stated it would be and namely the very reason that subrogated for the position of the owner. William J. Brennan, Jr.: Well, then you mean this case comes to us, virtually you and the Government and the other side in agreement that the property did belong to the surety at the time that -- Jack Hart: Yes, well, the -- the surety thing subrogated for the position of the owner and its right of subrogation depending on whether it has in fact expanded the money. There are perhaps in some cases whether the city under the circumstances would have had the right to whip all the money from the contractor, and then there's no doubt about that when the contractor has failed to perform. There could be questions of fact. For example, if the surety had expended only $20,000 and the amount payable was $40,000, its right to subrogation would extend to the extent of $20,000 and not 40. William J. Brennan, Jr.: Well, is there right such issue here? Jack Hart: No, sir. The surety -- the issue hasn't been raised. The only issue raised in the State is meant that we are applied to institute an action in proceeding by filing a complaint under the Federal Rules of Civil Procedure giving a defendant 20 days in which to answer. William J. Brennan, Jr.: And this even on the premise that in fact that the contractor's business -- no property of the contractor but only the surety code. Jack Hart: Yes. William J. Brennan, Jr.: Even on that premise the -- should you civilly suit by rather than summary suit? Jack Hart: There are plenary suits but nobody says against whom and there isn't any findings (Voice overlap) yes. William J. Brennan, Jr.: That's what the contention is? Jack Hart: Yes sir. William J. Brennan, Jr.: Although it's your money, you can't resort and no claim belongs to the contractor. You can't resort to the summary procedure but must institute some kind of plenary suit against somebody. Jack Hart: Well, I must say with respect to that that the respondent has not been required to take a position in the posture of this case as to whether it concedes, he concedes or denies that the money belong to the surety because he had attacked the jurisdiction of the Court and has not been required to respond to the factual allegations of the petitioner. Potter Stewart: Isn't that really the point that the questions, the issues that the subjects of Mr. Justice Brennan's questions have not yet been reached, is it, and then you don't know if there any -- if there -- Jack Hart: It's actually so, Mr. Justice Stewart, yes. We've been dismissed. Now, 2463 has an interesting history which I can briefly allude to. It was first passed in 1833 in response to South Carolina Ordinance of Nullification. The South Carolina didn't like the Tariff Act which had been passed and -- passed some state laws, Duty of Tariff Act is -- Tariff Act fact should not apply in South Carolina. Congress then passed a rather lengthy statute making numerous provisions to deal with that situation in South Carolina and 2463 and almost the exact words it has today was incorporated in that statute. Many of the sections of that statute and we think on this point as perhaps with some moneys, the respondent in its brief has begged the question here referred to what would be the case if tax collector acting properly under the Tariff Act did what he did. We think it's plain that 2463 the section with which we are here dealing must be read by including after the second word back in the statute the additional word improper. Section 2463 specifically deals only with cases where a person who happens to be a District Director seizes or detains the property of a non-taxpayer justifying his conduct on the ground that he is a District Director, but the revenues laws do not apply to non-taxpayers and we are dealing here I might say in all of you with the case we would have if the district director so seized the automobile of Mr. A to satisfy the tax obligations of Mr. B and we are dealing now with the question of who gets possession of the automobile when this dispute arises and whatever has been decided and what are the rights of Mr. A with respect to retrieving his property? It seems evident from that point of view that the District Director is not defending that in the case because unless we had 2463, we have difficulty in saying on what basis we could get him into a federal court. Normally, there would be no diversity present and there was not in present case. And since the charge against him is merely that he is an individual tortfeasee, the case against him, whatever it happened to be, would not arise under any federal law. Further, it seems clear that the District Director does not claim that the property is his. That's the very last thing he would claim and it seems perfectly plain that he would not even in his personal capacity contend that he had a right to the possession of the property. For example, suppose that in this case which has now been pending a year, Mr. Scanlon had resigned from his office as District Director. What would have happened to the automobile? Certainly, he would have not kept it. Now South Carolina, in 1833, provided that way a property was seized by federal officials, the federal officials would be guilty of a crime under South Carolina law and in reacting to that, Congress passed statute protecting its revenue and prevent -- protecting its officials by providing there questions which arose should be tried in the federal courts. That was where the seizures were made under the Revenue order. 2463 deals with the case of what happens with property seized when there is no authority for seizing. Where do you put it? It seems evident and we'd have no question, I say in all humility, whether if all we did was read the language at 2463, it says clearly, “That property is to be deemed to be in the custody of the law.” It seems to be plainly that place to put. Now, if that is so, then we don't have a cause of action where a plaintiff and defendant proceeding under the Federal Rules of Civil Procedure, but to accept the suggestion made by the respondent's brief, we are in fact applying to the Court. They say we are really making a motion rather than proceeding by petition and we have no objection to that. If an application to a court is a motion that is what we are doing. We are applying through the Court which has the custody of this property to return it to us. Charles E. Whittaker: May I ask you, on what basis you assert that the Court had custody of this property? Jack Hart: On the basis of the express language that of Section 2463. Charles E. Whittaker: I read it to say that the property should be in the custody of the law. Jack Hart: The several cases which have dealt with this have made no distinction between the custody of the law and the custody of the courts -- Charles E. Whittaker: Now -- Jack Hart: -- by taking it – I am sorry, sir. Taking it as being ambiguous and looking for its meaning, the property would have to be in some place. We insist here that we are not dealing with a Director of Internal Revenue or a tax collector or with the United States. If we have as an adversary either the United States or a collector of Internal Revenue, then we have conceded we must loose. Our entire case is based on the contention that being an non taxpayer, we do not come within the coverage of the tax laws and that therefore, if somebody takes my property and I'm non taxpayer, it is interesting what should move from his -- first thing into my house in the middle of the night burglarizing the same and then defending on the ground that he also happens to be a District Director. We don't have that problem because District Director is an honest man and proceeds with honest intentions. Charles E. Whittaker: You're seeking an adjudication that you're not a taxpayer and that the funds here being held are your funds and it was being held to the tax debt to somebody else improperly. Jack Hart: Yes, sir. Charles E. Whittaker: Now then, how do you buy writing a letter to the Court or file a motion with the Court initiate proceedings that result in the Court's acquisition of jurisdiction over the person of the defendant? Jack Hart: The Court does not get jurisdiction over the person of the defendant by our filing a petition. Due process requires simply be notified just as it requires in this case the City of New York and the contractor to be notified. And in one of the interested parties, quite take a different position on the substance of our complaint. But as a non-taxpayer, if we are right and if this posture of the case, the allegations of our petition must assumed to be, right, then it is our property which has been seized without any warrant, without any judicial sanction which normally would permit us to bring the tortfeasor who happens to be a District Director into a state court. As a matter of fact, there wouldn't seem to be any basis for suing him in a federal court. It doesn't seem to be a basis for the federal jurisdiction to sue a tortfeasor who happens to be the District Director but who has not acted as an agent of the United States. Charles E. Whittaker: What do -- tell me, do the Federal Rules allow the initiation of a proceeding against a defendant and the requirement of his return and answer otherwise and upon 20 days allowed for the rules? Jack Hart: No, sir. But the Federal Rules of Civil Procedure refer to the ordinary civil litigations and if this were a case where we're suing the District Director, then there would be no doubt that the Federal Rules would apply. Charles E. Whittaker: Now, if there were jurisdictions over some raised or some already pending case in the Court, then any notice in the form -- reasonable notice to some other person in an ancillary or a dependent proceeding would that Court in due process would be sufficient to bring that person in, wouldn't it? Jack Hart: Yes, sir. Charles E. Whittaker: That's what is in this case? Jack Hart: No, sir. Charles E. Whittaker: I don't understand. Jack Hart: Well, if I may take your very illustration, suppose that Mr. Scanlon the District Director in this case having seized our property then resigned, and was no longer the District Director, who would be the defendant in our suit. Whom do we sue? We have no issue with the Untied States of America because we now know there are many taxes and they don't claim that we are delinquent taxpayer. We therefore have no issue with the District Director because to the extent that he is the District Director, he is acting within the scope of his authority. If he is, and then we would concede that this proceeding could not be sustained. We don't have a lawsuit against anybody, but dealing with the situation reflected in the statute passed for the protection of the United States in order to balance out or on the one hand, the extraordinary power of the tax authorities to collect administratively and the right of a decree non taxpayer to get his property back, this statute says in such a case we'll put the property into the custody of the law. Any privilege that the Court has and say you have now cut this property because the statute puts it there and we ask you to return it to us. Who is entitled to notice then? Those people who the due process tells us who are entitled the notice. In this case, the District Director, the City of New York and the contractor, nobody else could seem to have any -- the District Director as a fact of the matter of cause appears by the attorneys for the United States America because if he in fact was a District Director or to put it in other way, if indeed he was acting within the authority of the tax laws, then of course the property goes to the United States of America. But if he was not so doing, then the United States has no interest in this proceeding, the District Director is not involved and an individual will happens to be a District Director is given notice because he is the one who purported to act under the authority of a Revenue Law. The point we submit is made clearer by considering what we have been relegated to do. We are told to institute a plenary proceeding. We don't know what the kind of judgment the Court – courts entered since we take it a verdict that Mr. Scanlon in this case would not claim that the custody of this property is in him except as a custodian for the Court. The respondent suggests that custody of the law, Mr. Justice Whittaker means that the custody of the collector is being protected against process from other courts. Protected to be sure as long as he is the custodian for the District Court where the property is located. For example, suppose that the District Director was concededly a dishonest person, and suppose then that he had seized negotiable securities depending -- warning to non taxpayer and suppose then that he were directed to turn them over by the District Court but said no Section 2463 says that my custody has been protected. Undoubtedly, the Court does not have physical custody of the property, but we think that it has constructive custody of the property. We say squarely that from the 2463, we do indeed make a motion to the Court in whose custody the property was placed to return it and to return it in summary fashion, meaning by that at the time limitation is set forth in the Federal Rules of Civil Procedures do not apply. And frankly, we are at great difficulty to understand why the Government which is the real party and interest on the other side should have the slightest detection to this. We deal with the question of power and not of discretion. If coming-in in this motion procedure, it is a term that the Government needs time to ascertain the facts to present its own no position, on our theory and on what we submit here there is noting to prevent the District Judge from saying in my discretion, I (Inaudible) that this, the respondent shall have 20 days in which no answer or two months in which to conduct these oral depositions. There's nothing to prevent that, but if the money belongs to the treasury, then one would think, it ought to be covered in (Inaudible) and that the Government should be happy to have the opportunity to accomplish that. If not, then as often happens, delays occur which sometimes result in a denial of justice. Felix Frankfurter: I -- I understand that you derive your power here from the implications of 2463, is that right? Jack Hart: Yes, sir. Felix Frankfurter: And I wonder if you would make a comment on the discussion of the problem of summary recovery of that property that is involved here of the opinion in the Taubel-Scott-Kitzmiller? Have you suggest -- dealt with that case? Jack Hart: Well, I -- Felix Frankfurter: In the discussion of Justice Brandeis in that case? That -- that Taubel is (Inaudible) to the general requirements of the plenary suits and that the exception must be manifested by -- for the specific legislation as I get out of that case. Jack Hart: Well, Mr. Justice Frankfurter, I would say that we are submitting to this Court that the history of 2463 -- Felix Frankfurter: (Inaudible) explicitly that will require to that -- Jack Hart: Expressed language. Felix Frankfurter: -- or having in purpose. Jack Hart: We'll -- we'll put together leave no alternatives in logic to what we are here submit. There is no deferment for us to sue. Nobody has this property if the Court hasn't got it and in an appropriate case, the District Director, if not a tortfeasor, well, if not a civil tortfeasor, if he is going to keep the property and insist that he has a proprietary interest in it, it might approach a criminal situation. He doesn't claim it. The United States doesn't claim it. The dispute -- Felix Frankfurter: He might claim it ex officio. Jack Hart: Well, if he claims it as ex officio, if I -- if I get the solution -- Felix Frankfurter: But I mean, he might claim that's not stolen or the Court pleaded that he might say this is a (Inaudible). Jack Hart: Exactly so. Felix Frankfurter: (Inaudible) state keepers as well. Jack Hart: Yes, we're not personally. What happens if he resigns, what happens to the property? What does he doing? Now, where is his obligation set forth? Felix Frankfurter: I know the difficulty of substitution -- substitutive party that if he resigns, he is fit to be getting to an action of where he got to resigning their offices. Jack Hart: Well, the District Director has a pretty powerful weapon in being able to proceed administratively to seize property. He is entitled to have it, but it is fraught with these and if he seizes property which a citizen claims was improperly seized because I am not a taxpayer, then it hardly seem to depend -- Felix Frankfurter: But those are contested questions, aren't they, Mr. Hart? Jack Hart: Oh, yes. Felix Frankfurter: What happens that maybe they clear, you maybe -- he may be extra zealous or he maybe extra careful or he – you say we'll find it out in the -- some legal action? Jack Hart: They -- they may will be sir contested questions and power before us is if they are contested which we assume they are, how are you trying to manage? Felix Frankfurter: Well, I -- the reason I put the case to you is because the characteristic detail in the -- Mr. Justice Brandeis in that opinion for the Court said this if the impression that you want a good deal before we will allow such an action. Now I'm not overstating the case, am I? Jack Hart: No, sir and I would agree with that and I say we have a good deal present. Indeed we can hardly -- we think an alternative is not available. Thank you. Earl Warren: Mr. Roberts. Richard M. Roberts: Mr. Chief Justice and members of the Court. This case is essentially a case presenting the question of a procedure to be followed where a District Director has allegedly seized property (Inaudible) to a non taxpayer, that is non taxpayer foreign to the assessment that he is trying to collect. Rule one of Federal Rules of Civil Procedures provides that these rules govern the procedure in the United States District Courts in all suits of a civil nature where the cognizance is always cases at law or in equity with the exception stated in Rule 81. As I understand it, there's no allegation here that the exceptions of Rule 81 are applicable. Rule 2 provides that there shall be one form of action to be known as a civil action. Now, if a party believes that the civil action that he has brought is too slow to give him an adequate remedy, he has other proceedings under the rules that he may take. He may under rule 65 of the same injunctive relief that the case should more consider that facts that were presented to the Court warrant and show that relief. If he feels that there's honestly no issue of fact as the petitioner feels here, then after the expiration of 20 days from the filing of his compliant, he may move for summary judgment. Now, as the Court well knows, prior to the formulation of the Federal Rules of Civil Procedures, the procedures that were followed in the District Court were to say the least un-uniform. A litigant might be thrown out because he did not complied with certain rules of procedure adopted in that particular State in which the District Court happens to be sitting. Now, we submit that there's no reason to favor under the rules a person in the position of this petition who is in effect getting his day in the Court advanced over another litigant who is claiming possibly in a conversion case that someone has this money illegal and by making that litigant take his normal day in the Court by allowing this litigant come in and move ahead by a show cause order is disrupting what we feel to be the purpose of the Federal Rules of Civil Procedure which was to provide a uniform procedure of the Federal District Courts. Now, Section 2463 is almost a verbatim reenactment of the parts of Section 2 of the Act of March 2, 1833 which as petitioner's counsel pointed out was an Act to -- to get around the nullification ordinance that South Carolina had enacted. Now petitioner's counsel would have the Court read into the provisions of that Section as well as the Section as it now stands properly -- property illegally seized. I don't believe there's any warrant reading into the present -- the predecessor for the present statute that turns the very purpose of the Act of 1883 or 1833, rather of 1833, was to retain in the District Director custody of property that he had legally seized for duties that were attachable to property being imported into the United States. The State of South Carolina by its nullification ordinance, a decree that such duties were illegal, yes, but they were not illegal and they were legally seized properties that were seized to pay those duties. The State of South Carolina didn't like that and it passed this nullification ordinance which would allow certain acts to be done. One, it allowed for replugging to be applicable. It would take the possession of his property that had been seized by the collector out of his hands. It made him subject to a penalty of twice the value of whatever property he had taken. Now, we submit that there's no reason to read into that section, the phrase that he now requests to be read in there that it only applicable to the property that was illegally seized. We feel that it is applicable to all property. Now, even though this property by that section is made subject to the orders of the District Court and decrees to the District Court, it provided that the property shall be very irreparable. Now, the writ of replevin would only test possessions. It wouldn't test owner -- ownership to property, but now instead of the writ of replevin being applicable, petitioner would have you hold that you can go in on a summary proceeding and determine title to property whereas Congress had said the District Courts could not entertain a writ of replevin. Felix Frankfurter: Mr. Roberts, before you proceed with the replevin thought, would you indicate what was embraced, what was accomplished by subject only to the order to decrees of the Courts in dealing with the 1833 statute. What was had in mind for that provision? Richard M. Roberts: I beg your pardon Mr. Justice? Felix Frankfurter: I just want to know, to what -- for what purposes that authorization if it maybe so called was put in subject only to the orders and decrees of the Courts of the Unites States shall be accepted, shall be deemed to be on the custody and subject only to the order of the -- dedication arise under the -- before we get to the modern form of the progentive statute. To what kind of situation was this authorization of the -- to the Court to issue order and decree reference to the property? Richard M. Roberts: I believe that it would have reference to the case where prior to this time. Felix Frankfurter: By the what? Richard M. Roberts: Prior to the time of the enacting of this Section. Felix Frankfurter: 1833? Richard M. Roberts: In 1833. If another court, say a state court had taken jurisdiction could envision a writ of attachment prior to judgment that this means that it should only be the subject to the orders of the District Court but no court would have any power to enter a decree or order affecting this property that had been seized by the then collector of revenue. Felix Frankfurter: Do you mean that -- Richard M. Roberts: Collector of the custodies. Felix Frankfurter: On your -- on your suppositions you in that a prior judgment which is a matter of committee ought to be respected by the federal courts. The District of -- the Federal District Court or the Circuit Court would have lead to let the property go out of its custody, is that it? Richard M. Roberts: No. I don't believe that the property had been seized after this Act that any state court couldn't have any order. Felix Frankfurter: I know it couldn't but -- I understand that, but it could go to the U.S.C., United States Court and ask that Court to release the property within its custody, is that it? Richard M. Roberts: I don't understand that the -- that should go to the state court to the federal court. Felix Frankfurter: I'm thinking enlightenment. I want to know up to what situations would be applicable the power of the Court having a custody of property not referable to anybody else to what situation would this empowering second half of that sentence apply but shall be subject – there is a negative and there is a positive. If it's in the custody of property taken or detained under any running laws should not be reprievable but shall be deemed to be in the custody of the law and subject -- it shall not be reprievable. That's the -- that's the prohibition. That's the proscription. Richard M. Roberts: Yes. Felix Frankfurter: And there's an authorization, it shall be subject to orderly decree of the Courts of the United States. Now, what I want to know is to what would such an order, a decree be directed of property into the custody of the United States Court. Richard M. Roberts: Well, it would be recited this would give, this district court jurisdiction over this property. Felix Frankfurter: To do what? Richard M. Roberts: To order a return to the petitioner, if it's rightfully his Your Honor. Felix Frankfurter: Well, I thought that would be that, only asking. Richard M. Roberts: Now, that's what he is asking. William O. Douglas: You've been saying -- Richard M. Roberts: But we say we should -- William O. Douglas: You were set on a plenary suit. Richard M. Roberts: Yes, Your Honor. Charles E. Whittaker: Isn't that all that's involved here? Richard M. Roberts: Yes, it is Your Honor. Charles E. Whittaker: But it doesn't say anything about plenary or summary. Richard M. Roberts: No, it does not. But we do not believe that there is any authority for the Court to have some rejurisdiction. Felix Frankfurter: Well, but the authorization to surrender isn't qualified by anything in the language. Now, what is there outside of the language that we such a gloss -- put such gloss on it? Richard M. Roberts: I'm not sure that I understand your question. Felix Frankfurter: Well, I'm afraid I can't make it clear. As I read it, the Court can issue an order. It doesn't say anything about plenary or summary or anything else. The Court issues all sorts of orders, Court issues, orders, petitions in the Second Circuit dealing with officers of courts. Now, wherein is the limitation in this statute to plenary orders, orders powering the plenary suit as against order powering a summary suit? Richard M. Roberts: I don't think it's in the statute. Felix Frankfurter: Where do you get it from? Richard M. Roberts: From Rules of Civil Procedure, Your Honor, that authorizing -- Felix Frankfurter: But that didn't say anything about it. That merely says that if the general suits brought under the Rules of Civil Procedure. Is there a specific statute dealing with property, that unusual thing, property into the custody of a Court and why do we have the inclusive statute? I'm not saying it is. I'm trying to find out. Richard M. Roberts: I don't believe it is property in the custody of the Court. It's subject to the orders of the Court in custody of the law. Felix Frankfurter: In custody of the law? Richard M. Roberts: Yes, but not in custody of the Court, Your Honor. If it were in custody of the Court -- Felix Frankfurter: Do you mean if -- if it could be claimed on, that (Inaudible), that -- Richard M. Roberts: No, I do not mean that, Your Honor. I mean that it's not in the custody of the Court for this reason. If it were, then the District Director could do nothing with that property without going to the Court and getting a court order where he had legally seized the property. If this section puts it in the custody of the Court, then he cannot take that property and apply it to the taxpayer's taxes or sell it in the pry of the closed proceeds to the taxpayer's taxes because if it's in the custody of the Court by the very nature of the term, the Court is the only power that can dispose of that property and deal with that property. Felix Frankfurter: Well then your answer means that if the -- if property were in the custody of the Court and that restricted and technical and intelligible sense, then the Court couldn't make summary disposition. Richard M. Roberts: If it's in the custody of the Court, yes, Your Honor. Felix Frankfurter: Now it probably is in the hands of the custody in bankruptcy, in the custody of law and custody of the Court. Richard M. Roberts: Leave us in the custody of the Court, Your Honor. Felix Frankfurter: But is there a specific provision dealing with summary dispositions. Richard M. Roberts: Yes, but he must -- but he must go to the Court and get approval to self. Felix Frankfurter: Yes, he must get all that. I mean, in fact, the (Inaudible) there is this right for which the petitioner is contending in this case, is that right? Richard M. Roberts: By the Bankruptcy Act -- Felix Frankfurter: By the Bankruptcy Act. I -- is that in a very specific terms? Richard M. Roberts: I'm afraid I cannot answer that, Your Honor. It has certain specific terms, yes. Felix Frankfurter: Now, before going -- when the 19 -- from 1833 down to whatever it was 1930, there was no federal procedure, Rules of Federal Procedure, was it? Richard M. Roberts: That is correct. Felix Frankfurter: Now, what was the situation? Is there any material dealing with a cognate problem to the one now before the Court under the Act of 1833 before it became embodied, even the revised statutes or any of U.S. codes? Richard M. Roberts: No, Your Honor. Felix Frankfurter: There is no -- Richard M. Roberts: This case is -- the Raffaele case in the Third Circuit that uses this section of the code as giving the Court jurisdiction, in giving it custody in the Court subject to the summary orders of the Court. That's the first time in over a hundred years that the Court had found that that section gave a jurisdiction for this problem. Felix Frankfurter: In other words, the Third Circuit read it as unqualified. My question put it to you is namely since we have a subject only for the orders in decrees of the Court, it can issue any order it pleases. Richard M. Roberts: Yes, sir. That case was presented on the injunction basis however and the petitioner here is asked who he would sue upon a reaction. The Government concedes that he may sue the District Director and I would like to read from a recent decision of the Fifth Circuit dated March 15, 1960, Campbell and Usry. Felix Frankfurter: Campbell what? Richard M. Roberts: Campbell and Usry, U-S-R-Y, there are two District Directors. Felix Frankfurter: Yes, two. Richard M. Roberts: Versus Bagley, B-A-G-L-E-Y, number 17854. Felix Frankfurter: The Fifth Circuit in what date? Richard M. Roberts: Fifth Circuit date March 15, 1960. Felix Frankfurter: March 15 or 16? Richard M. Roberts: 15. Felix Frankfurter: 15. Richard M. Roberts: 1960. Felix Frankfurter: Court of Appeals? Is that at the Court of Appeals? Richard M. Roberts: That's the Circuit Court of the Appeals in which they state -- William J. Brennan, Jr.: What is the number? Richard M. Roberts: Number 17854 in which they state as to the first proposition this Court has recently said, quote, and they are quoting from the previous opinion of this, there is no longer any doubt but what where a District Director of Internal Revenue has levied upon the property belonging to one person in order to satisfy the tax liability of another, the true owner may obtain from the U.S. District Court an injunction against the District Director to prevent the sale of such property and that if the owner is not the taxpayer involved, such relief is not prohibited by 26 U.S.C.A 7421. Now, the Government admits that this is outside the prohibition contained in the Revenue Code Section 7421 which prohibits injunction suits to restrain the collection or the assessment of taxes. We concede that where we are grabbing another person's property that injunctive relief is properly granted against the District Director. Hugo L. Black: Under what Section? Richard M. Roberts: Under the general equity powers of the Court, Your Honor. The Section prohibits injunctions but we say that the Internal Revenue Code only applies to taxpayers. Hugo L. Black: You say the Government has consented to have that kind of suit (Inaudible) Richard M. Roberts: We concede to that. Yes, Your Honor. Hugo L. Black: Where they consented? Where is the consent? Richard M. Roberts: Well, as this Court pointed out in the Maule which – where the case they were discussing from Maule Industries Inc, that's the case they were holding from in this opinion. They point out that the Revenue Code only applies to taxpayers and that the prohibition contained in the Revenue Code against the injunctive relief would only apply to one in the position of a taxpayer and would not apply to one in the petitioner's position here where he says he is not the taxpayer whose money we're attempting to take. Speaker: What's the name of that case Mr. Roberts? Richard M. Roberts: Maul, M-A-U-L -- Speaker: No, I meant the one that's the same. Richard M. Roberts: Fifth circuit. Speaker: Fifth circuit? Richard M. Roberts: Fifth Circuit case is Campbell and Usry, U-S-R-Y versus Bagley, B-A-G-L-E-Y. Speaker: Thank you. William J. Brennan, Jr.: Mr. Roberts, is there some particular reason why the Government's is insistent on a plenary suit -- Richard M. Roberts: Your Honor, yes. While we admit for the purposes of this argument that the New York law is well settled, that the property that is being levied upon or at least that the city says we've levied upon is the property of this taxpayer. We also want to get the facts of just what like when did the breach of the contract occur? What payments were there made before or after the filing the notice of leave? Now, the Federal Rules of Civil Procedure recognized that when you're dealing with the Government that the Government does not and cannot act as fast as the normal litigant. The federal rules gives the Government 60 days to answer whereas the normal litigant gets 20 and I'd like to point out that this defendant here would get 60 days rather than 20 days to act because a provision of the Rules of Civil Procedure makes -- one of the rules makes a district director, former district director a officer of the Court within the term of that phrase in the rules giving the not also court of the -- also the United States within the rules giving that person 60 days to answer. It also recognizes upon appeal. The Government has 60 days to know note appeal whereas the time could try litigants was less. We say we are entitled to the time that the rules give us in the case of this sort. To get the facts together, if a summary proceeding could be handled on 24 hours notice, there would be no rules applicable whatsoever. William J. Brennan, Jr.: Well, discovery, is that something -- one of the provisions of the civil rules that you're particularly interested in? Richard M. Roberts: Discovery, any rule that would -- yes, discovery to get us the facts that wouldn't be applicable in the summary proceeding if unless the rest of the rules are applicable. William J. Brennan, Jr.: Well, could not the trial judge and appropriate representations make any act applicable in the summary proceeding? Richard M. Roberts: You could at his discretion but if I understand the petitioner's position is, he doesn't have to make any of them applicable and that he can disregard the Rules of Civil Procedure in a case like this. Now, we would -- William J. Brennan, Jr.: That's just an -- your insistence is a practical one -- Richard M. Roberts: Yes. William J. Brennan, Jr.: -- that no other presents the best side of the Government's claim if there is any at all, you have to have the advantages under the rules of the time limitation of discovering and the rest of it. Richard M. Roberts: That's all we're asking. Yes, Your Honor and as we do, we're entitled to. Potter Stewart: Mr. Roberts, I'm not quite clear as to what time of the lawsuit you suggest the petitioner should bring. This is -- this is the time of the suit that you -- that I understand that's been (Inaudible). This isn't an injunction against the sale of property would be appropriate here at all, would it, of the properties. Richard M. Roberts: The injunct -- is not against the sale. No, Your Honor. But injunction suits have been issued to border the return of money. Now as to the appropriate proceeding that he should bring, the different courts vary on what they recognize. The Ninth Circuit has recognized that you could bring a 2410 proceeding in this type instance, in the case you've just had whether claiming the lead. Almost in fact went barely before a levy has served, a notice of lien is filed so that the Government would be claiming the liens. The Ninth Circuit has also upheld the use of a civil proceeding against the District Director for a money judgment in the tight situation where the money has been paid over already covered into the treasury. William J. Brennan, Jr.: Well, the fact here is, the money -- not money but the obligation has not yet been paid by the City of New York, anyway. That's -- that -- Richard M. Roberts: That is correct. So that -- William J. Brennan, Jr.: Actually the collector has nothing except a notice of lien filed with the City of New York, I guess. Richard M. Roberts: That is correct. William J. Brennan, Jr.: Although I -- there has been some stipulation that the money has been paid and the bonds -- Richard M. Roberts: When he was paid into the clerk of the Court and (Inaudible) above our liens has been paid out which is really what was the alternative prayer relief in this case, the alternative prayer relief. Potter Stewart: Will the stipulation affect our problem here? Richard M. Roberts: No. Potter Stewart: No. It says if the money were still unpaid by the City of New York? Richard M. Roberts: That is correct, sir. Potter Stewart: And nothing but a notice of lien? Richard M. Roberts: Notice of lien filed notice of levy served on the session. William J. Brennan, Jr.: Notice of levy by the collector? Richard M. Roberts: By the collector served on the city. Potter Stewart: Now, where will the 2410 proceeding be brought? Richard M. Roberts: Where would it be brought? Potter Stewart: To the state court of the federal court? Richard M. Roberts: Federal court. (Voice Overlap) only court that would have jurisdiction. William J. Brennan, Jr.: Against the collector as a -- as a non official of the United States under the definition of official of United States, is that it? Richard M. Roberts: Frankly, it could be brought against the United States. I beg your pardon, it would have to be brought against the United States. William J. Brennan, Jr.: Under 2410? Richard M. Roberts: Under 2410. William J. Brennan, Jr.: Yes. William O. Douglas: Well, I gather that you -- that you would conclude that if this suit had been brought, if a suit had been brought in (Inaudible) with the Rules of Civil Procedure then a motion for summary judgment might be entertained. Richard M. Roberts: Yes, Your Honor. If he feels there is no issue of fact as he does from his statement of New York law that he is entitled to this money he could file a motion for summary judgment. But then 20 days after the commencement of his action although bit inconsistent, the rules are there giving a 60 days answer with allowing motion for summary judgment within 20 days but he could do it. William J. Brennan, Jr.: But why if the Government came in with the kind of story you've just given us is the reason you want under the summary judgment section itself, there is authority in the Court to allow the recovery even. Richard M. Roberts: Yes. William J. Brennan, Jr.: The right -- the motion for summary judgment would get them anyway? Richard M. Roberts: Well, if it would be on a legal issue there Your Honor, the motion for summary judgment, he -- he would be with no facts and dispute. William J. Brennan, Jr.: Well, I know but you've indicated that if you could find out, you might find through our facts. Richard M. Roberts: That is correct. And I think we're entitled to find out whether there are facts and -- William J. Brennan, Jr.: Well, I suggest you could do that under the provision dealing with summary judgment now. It would get very far if you were to make a kind of representation to the trial judge that you make us but you've got to find out what the respected dates are on the lien that was filed in relation to when the surety stepped in the shoes, the contact and all those things. There is a provision on the summary judgment procedures I understand it, the discovery and those kind of things. Richard M. Roberts: That is correct. We would be entitled to this discovery there too. But if I understand correctly, the District Court would have the discretion even in the summary proceedings to allow us discovery, but it will only be discretion with the District Court. Now, I would like to point out -- Potter Stewart: Just before we leave this, I'm little (Inaudible) but I don't quite understand the kind of action that you're suggesting the petitioner should have brought. Am I right in thinking that the declaratory judgment action would not be available here if it involves taxation, is that correct? Richard M. Roberts: Would not be, yes. William J. Brennan, Jr.: Would not be available. What would -- what kind of an injunction here -- who are you trying to enjoin? This -- this man doesn't have any money, the defendant, the collector, does he? Richard M. Roberts: No, they are mandatory injunctions, they lift the notice of levy. If that's proper, I would be alarmed about it as to what we have done here actually. The notice of levy doesn't ask that the property of the New Hampshire Fire Insurance Company be paid to the United States. The notice of levy is a simple piece of paper. It sets out the name of the taxpayer the amount of taxes that are owed and the cause of tension to the party who is served upon the fund and we're demanding from them all property of the taxpayer and any rights to property that the taxpayer may have. It was the conservativeness of the City of New York that caused the petitioner here not to get his money. It wasn't really the action of the District Director in filing the notice of levy. William J. Brennan, Jr.: You can't blame the City of New York. Richard M. Roberts: Well, of course. William J. Brennan, Jr.: (Inaudible) the same fund. No -- no suggestion on the part of the city I take it to bring little (Inaudible) Richard M. Roberts: They could do that and our procedure is to move to dismiss because there has been no grant of jurisdiction, no waiver of sovereign immunity can intervene in a case in which the District Director feels that there is any title or property of the taxpayer involved. Now here from the opinion of Judge Cashing in the record, there is more money owed to this taxpayer than the petitioner claims. So the levy is valid. That's one reason why we don't -- would not want the levy quashed. The levy is valid to a certain amount, to whatever the city has, it belongs to this taxpayer, our notice of levy is valid. Charles E. Whittaker: Aren't you talking about matters here that relate to the merits when your question is wholly and solely whether or not you are in the court on the plenary suit? Richard M. Roberts: That is correct, Your Honor, but I would like to point out that because of that, we say there's no reason to read in to this statute any exception. Now, we're not -- we don't want to tell the Court that never could there be a summary proceeding of property deemed in the custody of the Court. If it's deemed to be in the custody of the Court -- Charles E. Whittaker: Under what procedure -- under what circumstances is it your idea that summary process may issue, may have issue only in an ancillary or a dependent manner or may issue as the institution of a new or fresh lawsuit in a federal court? Richard M. Roberts: We say it's an ancillary and dependent matter, Your Honor and that it held by the Third Circuit in Raffaele that this section gave the District Courts jurisdiction to summarily determine rights of the property that the courts inconsistently in the cases cited, has consistently found that the action was a dependent action, it wasn't a independent action. It was an auxiliary and dependent action for the return of property. And it wasn't until the Third Circuit in Raffaele saying that -- they said any court said should the Court could summarily determine property rights and rights to property under this section of the code. We submit that the Circuit Court and the lower court were correct in this case and that they should be affirmed. Felix Frankfurter: May I ask one question before you sit down? Why else should the federal -- the Rule of Federal Civil Procedure, the governing rule for that civil act, a civil court be intimidated rule of the mayor of the State, is that right? Richard M. Roberts: Yes, Your Honor. Felix Frankfurter: Do I then understand that the predecessor act of the present 1833 statute that under that, whether you could or could not have a summary proceeding that a petitioner as against the federal act in such a decision that (Inaudible) would have depended on the local law and so as near as maybe, the nearest maybe for the Government. Because otherwise, you would have to say that the Rule of Civil Procedure or -- then you would have to say that the Rules of Civil Procedure introduced a limiting factor as to the procedure allowable under the 1833 Act insofar of any state procedures adopted by the federal courts tipping in that State allows such state procedures, am I right about that? Richard M. Roberts: Accepting the conclusion that the state court would have had summary jurisdiction over property, yes Your Honor. I can think of no proceeding -- Felix Frankfurter: Yes, (Inaudible) what is the yes? Richard M. Roberts: You asked me as I understood your question, prior to the Rules of Civil Procedure, the District Court would have adopted whatever procedure had been in the state courts. Felix Frankfurter: Nearest maybe. Richard M. Roberts: And if the state court had allowed a summary proceeding to determine property rights, then -- Felix Frankfurter: A probable situation? Richard M. Roberts: Yes. And what we're saying then is that the rules would cut down on that right to a litigant. As I understand, that was your question. Felix Frankfurter: Yes. And your answer is yes, it could've. Richard M. Roberts: It is yes if you -- if your assumption is correct that a state court had summary power over property, I don't know if any proceeding where the state court has summary power over property that is not considered in the custody of the Court. It did under the old -- under the writ of replevin. It could determine possession, but I'd like to point out that that was only possession, Your Honor and not title. You still had the plenary action to determine the title. Charles E. Whittaker: Well, but you had in that case to bring the (Inaudible) into Court, isn't it? Richard M. Roberts: Yes. Charles E. Whittaker: Under the writ? Richard M. Roberts: Yes. Felix Frankfurter: That was my question. What you're saying is a hypothetical question that have no practical application? Richard M. Roberts: As I understand the law, it would have none, yes Your Honor. Earl Warren: Very well.

Warren E. Burger: Thank you gentlemen, the case is submitted, we will hear arguments next in Minneapolis Star and Tribune against the Minnesota Commissioner of Revenue. Mr. Brown, I think you may proceed when you are ready. Lawrence C. Brown: Mr. Chief Justice and Justices of this Honorable Court: The Appellant before you is Minneapolis Star and Tribune Company, locally known in Minnesota as Star and Tribune. It is the largest circulation daily newspaper in the State of Minnesota. This appeal presents two levels of issues which are essentially press clause First Amendment issues. The first issue, as we view it, is whether the State of Minnesota may tax publishers of Minnesota newspapers by imposing a tax on their consumption of paper and ink, or whether such a form of tax is prohibited by the press clause of the First Amendment in this Court's 1936 decision in the Grosjean case. Our view of that basic issue is that it is extremely narrow, it is essentially a revisiting of this Court's decision in Grosjean, and that the tax we challenge in terms of constitutional magnitude is factually indistinguishable from the stamp taxes in England and the colonies of Massachusetts and New York imposed during the 1700s. The second issue that we present assumes that we have lost on the first issue. The second issue is if such a use tax on paper and ink may constitutionally be imposed on the business of publishing newspapers, then is it still constitutional when the state of Minnesota, by enacting an annual $100,000 exemption which has the effect of imposing the tax only on approximately a dozen or so of Minnesota's large circulation daily newspapers and also has the effect of removing from the burden of the tax approximately 370 to 380 of Minnesota's other newspapers who simply do not consume on an annual basis $100,000 worth of paper and ink? The background of the tax may be summarized briefly. In 1967, Minnesota for the first time adopted a sales and use tax program. In 1971, through an exemption, the use tax here at issue was, for the first time, visited upon all Minnesota newspapers. And from 1971 until January 1 of 1974, all newspapers in Minnesota who consumed paper and ink, and by definition since paper and ink are the only two physical components of a newspaper, they all did, they were all, therefore, subjected to the tax at issue. On January 1, 1974, by virtue of the annual $100,000 exemption and thereafter, during the timeframe that is at issue here, January 1, 1974 through May of 1975, which is the refund period for which this action was commenced in the Hennepin County District Court in Minneapolis, Minnesota, the only papers in Minnesota who paid the tax were the large circulation dailies. And the Minneapolis Star and Tribune-- William H. Rehnquist: Mr. Brown, when you say the large circulation dailies, how many of those did that cover within the state? Lawrence C. Brown: --Your Honor, according to the records submitted in support of Star Tribune's summary judgment motion, I think there were approximately 29 and 27. I may be off a little bit in the numbers. William H. Rehnquist: What was the approximate circulation of the newspaper with the least circulation which nonetheless was subject to the tax? Lawrence C. Brown: I think the Brainard Dispatch, Your Honor, is the one which in 1974 was not subject to the tax and in 1975 was, and it was at about 14 to 15 thousand a year. Now, I may have those years backwards, but that's about the cutoff. The procedural background in this case was that the action for the refund of approximately $875,000 of use taxes paid, was commenced in August of 1975. We are dealing here with a 17-month timeframe which is the defined period for which we sued to obtain a refund. We proceeded to move the trial court for summary judgment, and in support of our motion we submitted a fact record consisting of affidavit testimony. There was also, as one of our fact showings, an affidavit from Mr. Shaw who ran the Minnesota Newspaper Publishers Association which sets forth the statistical basis identifying Minnesota legal newspapers and the relative circulations of those newspapers who do pay the tax, and the Minnesota Supreme Court has set forth in its formal opinion in this case the statistical data defining who was publishing newspapers and who was subjected to the tax. The trial court granted summary judgment for Star Tribune on all constitutional issues presented. At the oral argument before the trial court, the state orally moved for summary judgment on the basis of the fact records submitted by Star and Tribune. And I pause to note that point, because we are here before this Court challenging the judgment of the Minnesota Supreme Court which reversed the trial court, with the same identical fact record that we had at the trial court. And that was a fact record which the state adopted as its own in support of its motion for summary judgment. The state has never submitted any factual showing that would in any way indicate that the factual record submitted by Star Tribune was not a thorough and accurate record on which this case may be adjudicated. William H. Rehnquist: What's the law-- Warren E. Burger: --tax that applied to all consumers, all the newspapers in the state, no exemption on the 100,000. Lawrence C. Brown: And the point being taxed, Mr. Chief Justice, is the use or consumption of paper and ink. We challenged the constitutionality of that under the First Amendment and under a combined First Amendment equal protection strict scrutiny standard of review. Harry A. Blackmun: Could I change that a little bit? Suppose you had a general sales tax to which newspapers were subject? Would you be here or would you challenge that tax? Lawrence C. Brown: We would, Mr. Justice Blackmun, but let me say that we would-- Harry A. Blackmun: You would or would not? Lawrence C. Brown: --We would, sir, but we would do so first, with the acknowledgement that in no way does Star and Tribune challenge the power of the state of Minnesota or any other state in the exercise of its broad general revenue-raising tax powers, to impose broad forms of taxation equally and non-discriminatorily on all businesses which are fairly classified together with one caveat, and that is that if there is anything left of Murdock and Follett, we believe that broad form, non-discriminatory taxes as applied in certain First Amendment activity may be unconstitutional because as applied, they improperly burden the exercise of First Amendment activity. William H. Rehnquist: Could that be rephrased to say the Star Tribune has no objection to the state of Minnesota taxing any business except the newspaper business? Lawrence C. Brown: I don't think so, Your Honor. I think that's over-statement because the record that we submitted to the trial court and that's before this Court affirmatively establishes that Star Tribune pays income taxes, real property taxes, payroll taxes, all business taxes of broad form. William H. Rehnquist: I imagine 3M does the same. 3M, if it sells at retail probably has to pay a sales tax. Lawrence C. Brown: That's correct, Your Honor. The distinction is that Star Tribune has First Amendment rights under the Press Clause, but 3M does not. Thurgood Marshall: Mr. Brown, back in the days of the liner type, could Minnesota tax all users of lead? Lawrence C. Brown: Of lead. Your Honor,-- Thurgood Marshall: This is back when you had liner type. Ancient history. Lawrence C. Brown: --Well, not all that ancient. Your Honor, I think that that type of tax generally applicable to the consumption of lead as it applies to the newspaper business probably would have been constitutional because I can find nowhere in the stamp tax cases in the 1700s in England or in this country, direct historical reference points for taxes on knowledge which were imposed on the consumption of lead. Thurgood Marshall: It would be like a payroll tax. Lawrence C. Brown: I don't think it would be like a payroll tax as applied to the business of publishing a newspaper, Your Honor. Warren E. Burger: Did I understand your response to mean that only newspapers have First Amendment rights? Lawrence C. Brown: No, Your Honor, I don't mean to suggest that at all. Warren E. Burger: Well, you suggested that 3M didn't have any First Amendment rights. Lawrence C. Brown: 3M does have First Amendment rights when it exercises speech, but 3M's products... I thought Mr. Justice Rehnquist was saying if they were taxed, wouldn't they be identical to the tax on paper and ink here at issue. And my point is that the tax on paper and ink here at issue is a tax imposed on the consumption of those two commodities by newspapers. And in that context, I don't think 3M has a Press Clause First Amendment right. I think Star Tribune clearly does. Warren E. Burger: Now, would you apply that to Minnesota Mining's advertising? I suspect... in fact I know they have a tremendous volume of paper going out... paper with ink used to print the message. Is that First Amendment protection? Lawrence C. Brown: Your Honor, dealing with the tax here at issue, the statutory phrase that is pivotal is the phrase "publications". That's the way the Minnesota legislature chose to classify it. Our proof here endeavored to demonstrate that that tax is only paid by Minnesota newspapers, and by virtue of the $100,000 annual exemption, only large circulation Minnesota newspapers. In the case of 3M, I've got to believe, Mr. Chief Justice, that if 3M had ever been subjected to Minnesota's use tax on paper and ink, that fact would appear here in this record because it was in the self-interest of the state in meeting our arguments to prove that kind of fact. There are no such facts in this record. The only facts in this record are that the tax which the legislature imposed on publications is, in fact, only, during the period of time at issue, a newspaper tax. Warren E. Burger: This tax would apply to a textbook manufacturer, too, would it not? Lawrence C. Brown: No. Textbook-- Warren E. Burger: How about the West Publishing Company? Lawrence C. Brown: --I think their products, Your Honor, wind up being taxed on the sales at retail. You see, you have exempt publications under the dichotomy of the sales and the use tax scheme that Minnesota has established. Warren E. Burger: Well, West Publishing Company must use almost as much ink and pulp as most of the newspapers, don't they? Lawrence C. Brown: Substantial, Your Honor. Clearly, they do and yet, they do not... they are not, by statute, subjected to the use tax because they don't meet the statutory definition of "publication". Byron R. White: Well, the case was judged in the Minnesota Supreme Court on the basis... was upheld on the basis that it just applied to newspapers. Lawrence C. Brown: The Minnesota Supreme Court-- Byron R. White: And only certain newspapers. Lawrence C. Brown: --That's what they did, Judge. And they accepted... the Minnesota Supreme Court accepted our proof that this is a newspaper tax-- Byron R. White: Well, that's the construction given of this statute by the Minnesota Supreme Court. Lawrence C. Brown: --That seems to be what they tell us. And they tell us, nonetheless, it does not violate the constitutional protections of the First Amendment under the Press Clause. They also tell us that because... and this is a very telling point to at least me... they say because one of the purposes of the statute is to raise revenue, that in itself insulates it from the constitutional challenge that we present. Well, all the stamp taxes in England were enacted to raise revenues. The stamp tax of 1712 was imposed on various articles of commerce including the paper that printers had to buy to lawfully communicate with their readers. Harry A. Blackmun: Mr. Brown, would you hazard a guess as to why the Minnesota legislature imposed the $100,000 exemption? Lawrence C. Brown: Your Honor, any guess I would hazard would go beyond the record of this case. For as we point out in our brief, there is no legislative history that the Minnesota legislature sought to create to explain why it did what it did when it did it. In terms of my speculation, I would only invite the Court to look to the effect of the tax. We have established, we believe, that the effect of the tax is to tax only newspapers, and the effect of the $100,000 exemption is to limit the impact of the tax on only a dozen or so of Minnesota's largest circulation newspapers. Harry A. Blackmun: And 95 percent of it on two. Lawrence C. Brown: That's correct, Your Honor, the Minneapolis and St. Paul newspapers. William H. Rehnquist: With respect to the Brainard and the Austin and the Mankato papers that apparently are also subject to the tax, would you say that they are a homogeneous class, if one can speak in those terms, with the Minneapolis and St. Paul dailies? Lawrence C. Brown: I wouldn't call them homogeneous; I would call them competitors, because the circulation of the Twin Cities newspapers of Minneapolis and St. Paul extends throughout the state of Minnesota and into adjoining states. They are homogeneous, Your Honor, in that they are all newspapers. They are homogenous in that they are all in the business of publishing newspapers, and to the extent their circulation levels are sufficient to consume enough paper and ink to exceed the annual exemption, they are homogenous in that they all have to pay some amount of tax. William H. Rehnquist: But then I take it that you're not suggesting that there was anything other than an economic or tax-oriented, tax policy-oriented reason for the $100,000 cutoff. Because a lot of other newspapers that wouldn't pay under the $100,000 cutoff also are published dailies, they consume newsprint and that sort of thing. Lawrence C. Brown: I'm afraid I can't go that far. Perhaps my experience in 20 plus years of practicing in Minnesota, watching the Minnesota political scene and appearing before my home court states courts has tended to make me a little more suspicious than that, Your Honor. And my suspicion, it would seem on the record of this case, is confirmed. Most of us in common daily life are judged by the consequences of the acts that we perform, and that's really the standard that we'd seek to have this court apply to the judgment of the Minnesota Supreme Court that this is a constitutional tax. It isn't. Warren E. Burger: Is it a realistic proposition that a substantial majority of the Minnesota legislature have of the local newspapers that are not subject to this tax? Lawrence C. Brown: That's clearly the case with the makeup of the Minnesota legislative bodies, the Senate and the House, Your Honor. However, I don't want my comments to the questions that have been put to me to be interpreted that I think, or that Star Tribune thinks, that legislative motive or intent is critical to a First Amendment analysis of the tax here at issue. We have taken the position in our brief, and we stand by it, that the illicit or bad legislative intent is not the basis for the holding in Grosjean. Sandra Day O'Connor: Well, of course, there are decisions that have so interpreted Grosjean, are there not? Lawrence C. Brown: You're absolutely correct, Justice O'Connor, and to that extent I believe those lower court decisions have misinterpreted Grosjean. If I may give you two reference points from the transcript in Grosjean, and I think we only need two, there is no doubt that the parties in Grosjean knew what they were fighting about. At page 45 of Louisiana's brief after discussing at some length various forms of taxes of general application which in the brief they say, we could have enacted those kinds of statutes and had a lawful test. They said, the tax levied by the Louisiana legislature is not such a tax; the legislature could have levied such a tax but it did not do so. Instead, it imposed the tax on the business of selling or making any charge for advertising or for advertisements. So the position of Louisiana was we have the power to impose that form of tax on the business of publishing a newspaper. At page 30 of the appellee's brief in that case, the counter-point is presented. These appellees are not discussing the burden of the particular tax; rather, they assert that the legislature does not have the power to levy a tax on their business such as it has levied. I believe that the holding in the Grosjean case is simply and narrowly that there are certain forms of taxes which legislatures of the various states are prohibited from enacting. Very narrow forms such as the taxes on knowledge which seek to impose direct taxes on circulation revenues, on advertising revenues or on the consumption of paper. William H. Rehnquist: Mr. Brown, I take it, then, that you adhere to what I think is your position that if the Minnesota legislature sits down and says 50 percent of our gross revenues are raised by sales/use tax combinations on people in business to make money, and we're looking at the present structure and we see there's a sales tax on almost every business entity in the state. Most of the ones that we can't hit with a sales tax we hit with a use tax. Traditionally, it's been very tough to collect a sales tax on newspapers because so many of them are sold from boxes or by carrier boys, and we think newspapers should furnish their fair share of sales tax revenue to the state, so we're going to tax them with a use tax on ink and paper, which is going to turn out to be less payment by them than if we tried to tax their retail sales of newspapers. You say that's prohibited by the First Amendment? Lawrence C. Brown: We do, Your Honor. But we say so in perhaps a better context than I think was your question, because the way you phrased your question it left me with the impression that you feel that if the state of Minnesota lacks the power to impose this form of tax, somehow the large papers in Minnesota are going to get away with something. And if that is Your Honor's impression, I would urge you to go back over the historical references that we have cited, because taxes on paper, Mr. Justice Rehnquist, were one of the three pressure points by which the newspapers in England were regulated through the direct taxing power. William H. Rehnquist: But were those taxes on paper in England part of a scheme whereby sales and use of implements and products were generally taxed? Lawrence C. Brown: They were not, Your Honor, because-- William H. Rehnquist: Well, isn't that quite a difference? Lawrence C. Brown: --Not really because prior to 1791 there were no sales or use taxes. Sales and use taxes are relatively new; they're Depression taxes. William H. Rehnquist: Well, true. But I think one could read the First Amendment to feel that if you simply singled out newspapers and taxed them and didn't tax 3M for its sales, or any other Minnesota commercial entity for its sales, you would have a real First Amendment problem. But if the newspaper as a commercial entity is simply being made to pay a fair share of the use tax load in the state, everyone's entitled to their own opinion about what the First Amendment says, but I think those are two different cases. Lawrence C. Brown: Your Honor, my response, if you had a question within your response to my-- William H. Rehnquist: Well, it was something of a rhetorical question. Lawrence C. Brown: --My response nonetheless would be this. We thought we demonstrated through our factual proof at the trial court that Star Tribune is a good dues, tax-paying citizen of the state of Minnesota, and there's no evidence to the contrary. To characterize this tax as a normal form of use tax, I respectfully submit is to totally mischaracterize-- Byron R. White: Mr. Brown, you did seem to indicate that both the sales tax on the newspapers and this tax at issue here would be invalid. But I would suppose that you could sustain the sales tax without sustaining this tax. Lawrence C. Brown: --You could, Your Honor. However, the sales tax issue is not part of this case. Byron R. White: That's right, that's certainly right. And, of course, in the sales tax, at least theoretically, it makes the newspaper more expensive, but supposedly you collect it from the buyer. Lawrence C. Brown: That's correct. Whereas this tax, Your Honor, comes out of the pocket of the newspaper. Byron R. White: You're entitled probably to pass it on. But nevertheless, the incidence, the sales tax, isn't on the press. Lawrence C. Brown: That is correct. Under Minnesota's sales tax approach, Star Tribune and other sellers would be prohibited from paying the tax or absorbing it as part of their cost-- Byron R. White: So I don't know why you wouldn't argue that even if the sales tax would be valid, this tax is invalid. Lawrence C. Brown: --Well, we do argue that, Your Honor. The only reason we ever got into the sales tax issue in our brief was with great reluctance because the Minnesota Supreme Court appeared to us to endeavor to justify the constitutionality of the tax at issue with the assumption that a sales tax on the sale of newspapers would also be constitutional. It is clearly not an issue before the court; the parties agree on that. And it is clearly not an issue that needs to be resolved or affected by the-- John Paul Stevens: Mr. Brown, let me be sure I understand your answer to Justice Rehnquist's question. If you assume, contrary to your position, that a sales tax on newspapers would be permissible,... uniform as to all comparable businesses... why then is a use tax, which is less burdensome and designed to replace the sales, then why is that unconstitutional? Lawrence C. Brown: --Your Honor, our position is this. John Paul Stevens: And leaving out the exemption for a moment. Lawrence C. Brown: All right. Our position is that certain forms of taxes historically have been proven to be the vehicle by which legislatures attempt to exercise control or restraint over the press. That is true of all the stamp taxes that were imposed on paper. The legislators of the 1700s were less inhibited in stating their true reasons why they imposed taxes, and the historical references make clear that the stamp taxes were imposed to restrain and control the press. It is because, Your Honor, the form of the tax being placed on the only two physical components of the newspaper that creates the danger that if the power to impose such taxes is recognized, then the regulation thereafter is gone. Whereas, when you're dealing with a general sales tax there is at least the comfort that the newspapers in Minnesota find themselves in bed with all of the other taxpayers with a common view that no one likes to pay taxes. Byron R. White: Mr. Brown, you sound like you're making an intergovernmental immunity argument. Lawrence C. Brown: I don't mean to, Your Honor. Byron R. White: Anyway, it's understandable, against that background. Lawrence C. Brown: It's a difficult issue when you talk about a sales tax of general, non-discriminatory application and the position that the newspapers may take at some point in time in the future. I don't mean to over-emphasize the point, but I have been asked questions about it and I have to preserve the position that we maintain. I'd like to, if I may, Mr. Chief Justice, reserve the time for rebuttal. Warren E. Burger: Very well. Mr. Kempainen. Paul R. Kempainen: Mr. Chief Justice, and may it please the Court: In 1971, the state of Minnesota was engaged in fashioning one of its most important social and political programs in its history. The result was a comprehensive tax and financial reform act which took up over 116 pages. Over half of this volume of the Minnesota Special Session laws for that year. Enacted as part and parcel of this law and yet taking up only one-half of a page in it, was the basic use tax on paper and ink that we have here. Now, all one has to do is to read this large tax reform measure in order to understand that its basic purpose was revenue raising, its basic purpose was a social program of creating more equal educational opportunities for Minnesotans. The basic thrust of the 1971 law, of which the basic use tax here was a part, was to lower the overall property tax burdens in Minnesota which were very high at the time, and to make up for the subsequent loss in revenue through increasing the statewide income tax and the statewide sales and use tax, and then to redistribute that revenue back to the local governments and particularly, back to local school districts for the purpose, the avowed purpose, of equalizing educational opportunity throughout Minnesota at that time. It was an important social experiment in Minnesota and it happened to be a successful one, at least in the early 1970s when it became popularly known as the Minnesota Miracle. This legislative background, which we feel the appellant has given inadequate treatment to, as well as the statutory language of this tax on its face shows that Minnesota's use tax on paper and ink, the basic use tax, is purely and simply a revenue-raising measure. No other purpose either has been or can be ascribed to it under this record. This history as well as the statutory language also shows that Minnesota's use tax on paper and ink is an integral part of a general system of taxation, and that it is tied to the general sales and use tax rate. In 1971 it was imposed at the same sales and use tax rate, 4 percent, as all other sales and use taxes in Minnesota. And today it is still tied to that same general rate. Therefore, the rate of tax upon paper and ink cannot be increased without also raising the rate upon all other businesses subject to the sales and use tax in the state. I think it's also important to point out that this legislative history and the statutory language on its face shows that this tax was imposed at the lesser wholesale value of the paper and ink and not at its retail value when it's finally incorporated into the final product. Which would have been the case if a general sales tax had been imposed upon all newspapers. I think the Minnesota legislature back in 1971 was seeking to achieve a revenue-raising purpose and tailored its statute so as to achieve that revenue-raising-- Thurgood Marshall: Mr. Attorney General, if it was a revenue-raising act, why leave out all those newspapers? Paul R. Kempainen: --Your Honor, the $100,000 exclusion was, admittedly, not for a revenue-raising purpose. Instead, we contend it was for another purpose, and that purpose was to establish this taxing scheme as being more equitable, taking into account the special problems dealt with by small publishers through a device, I would point, which is an exclusion that applies equally and with the same benefit to even the large publishers across the board. This history, as well as the statutory language, also points out... and especially the statutory language, in response to Justice White's question of the appellant... is that this does apply to all publications across the board... publications as they are defined in the Minnesota statutes. When Minnesota first enacted its sales and use tax in 1967, it did not exempt all printed matter per se, even though all printed matter, obviously, is subject to First Amendment protections. Instead, it created a specific class of printed matter which it deemed to be publications, and that definition of what consists of publications is printed matter which is set out at intervals of three months or less. Byron R. White: Who has paid the tax? Who has ever paid this tax? Paul R. Kempainen: On this record, Your Honor, we only have evidence that the newspapers have paid the tax. Byron R. White: Well, that's all, isn't it? Who's ever paid the tax. Paul R. Kempainen: No, not necessarily, Your Honor. And in any event-- Byron R. White: Didn't the Minnesota Supreme Court judge this case on the basis that this was just a tax on newspapers who consumed more than $100,000? Paul R. Kempainen: --No. I would respectfully disagree, Your Honor, it did not. And I was getting to that point. In the very beginning of the Supreme Court's opinion on the Appendix to the Jurisdictional Statement, A2, the State Supreme Court said, that this tax is paid by some newspapers and publications, but not all. Therefore, at the very beginning of its opinion it recognized-- Byron R. White: You just told me that there wasn't any evidence that anybody but newspapers paid the tax. So what's the-- Paul R. Kempainen: --The evidence is the basic statute itself, Your Honor. Byron R. White: --What's the evidence that other publications have paid it? Paul R. Kempainen: There was no evidence, Your Honor, and we did not submit any. We did not feel it was necessary since it was on the face of the statute itself that this applied to all publications and not just to newspapers. William H. Rehnquist: When Justice White asks you about evidence that other publications paid the tax, do you interpret that to mean evidence from the receipts department of the Taxation Division to the effect that they had receipts from such-and-such a taxpayer, or whether the tax is intended to cover other publications? Paul R. Kempainen: I take it that Justice White's question... and correct me if I'm wrong, Justice White,... is that the evidence is that particular taxpayers other than newspapers did pay this tax. Which would have been difficult-- Byron R. White: My question was directed... the submission is that this is a tax on newspapers. Paul R. Kempainen: --The submission by the Star Tribune, Your Honor. Byron R. White: And no one else pays this tax. And you say that this is a tax that on the face of it,... and we must assume it's true because the Supreme Court of Minnesota recited it... is a tax on all publications, if they consume enough paper and ink. Paul R. Kempainen: That's correct, Your Honor. Byron R. White: And I suppose the next question is with the exclusion of the $100,000, who else but newspapers consumes that much paper and ink? Paul R. Kempainen: I think the example that was previously given of 3M and its advertising certainly-- Thurgood Marshall: That would probably be the biggest, wouldn't they? West publishing Company certainly uses more. Paul R. Kempainen: --West Publishing Company, Your Honor, does not... their end product, their books that the West Publishing Company prints, their end product is subject to sales tax at the retail level and, therefore, is not considered a publication. Thurgood Marshall: But it does use as much paper and ink as a newspaper does. Paul R. Kempainen: Oh, it certainly does, Your Honor. Probably more so. Thurgood Marshall: I should think so. Paul R. Kempainen: And the paper and ink that is used by West Publishing is already being subjected... was already being subjected to the sales tax itself, because the end product, the books of West Publishing Company, were subjected to the retail sales tax. And therefore, the value of the paper and ink was being taxed at that point in the commercial flow. And getting back to a point that I just made, what the legislature did here, instead of imposing this tax at the point of the retail sale which might be considered too close to actual communicative acts, the communicative act of printing and disseminating a newspaper, instead it went back a step and it tried to get away from... as far away from the communicative act as possible by instead taxing the wholesale purchase of paper and ink by a commercial publication. Sandra Day O'Connor: Under Minnesota law, do you agree that the sales tax where it's imposed is passed on to the purchaser? Sandra Day O'Connor: Is that a requirement? Paul R. Kempainen: Yes, Your Honor, it is. Byron R. White: And it may not be absorbed. Paul R. Kempainen: The sales tax may not be absorbed. There is no requirement, at least that I am aware of, Your Honor, that this use tax has to be absorbed. The use tax on paper and ink can be included and passed... in the price of a publication passed on to the ultimate consumer. Sandra Day O'Connor: But there's also no requirement that it be passed on. Paul R. Kempainen: No, Your Honor, that's up to the commercial publication in their own discretion. John Paul Stevens: May I ask a question... I may not have followed... on what a publication is within the meaning of the statute. As I understood the statute, the term "publication" is defined just to include newspapers. Is that right? Paul R. Kempainen: No, that's not correct, Your Honor. The term "publication" is any printed matter which is sent out at regular intervals of three months or less. So it would include news magazines, trade journals, serially-issued comic books... there's a whole laundry list of publications besides just newspapers that this applies to. John Paul Stevens: Wouldn't that encompass West? Paul R. Kempainen: No, Your Honor, because most West books do not come out at average intervals of three months or less. John Paul Stevens: They come out a lot faster than that, as far as I can see. [Laughter] Paul R. Kempainen: No. The West Book... I believe you're talking about the Federal 2nd and so forth, the Supreme Court Reporter. That's not considered... that's considered a one-of-a-kind edition. Each one of those volumes is considered a one-of-a-kind edition. So when it comes out, it's considered a printing, a single printing, each volume. Byron R. White: And besides, isn't it subject to the sales tax? Paul R. Kempainen: Yes, it is, Your Honor. John Paul Stevens: Well, the term A77 of the... I guess I just must have just misread it. I thought it just covered newspapers and supplements and enclosures with the newspaper. Paul R. Kempainen: I think a greater definition, Your Honor, perhaps in less formal statutory language can be found in the Minnesota regulation dealing with the statute, which is found in JA 30, the Joint Appendix. And there it goes down the laundry list of what is included in a publication. Byron R. White: Does that include any publication that is subject to a sales tax on the end result? Paul R. Kempainen: No, it does not, Your Honor. In order to perhaps put this in greater perspective in case there's any confusion on this point, in 1967, Minnesota carved out publications, which was a broad class but nevertheless, less narrow than "all printed matter". Those publications which are published at average intervals of three months or less. There was no sales tax on the retail sale of those publications. Everything else was subject to sales tax. And therefore,... and what Minnesota did in 1971 when it was searching for additional revenue, instead of eliminating the total exemption from the sales tax for publications, it instead went further back in the commercial flow of this transaction and instead imposed this use tax which we have here on the wholesale value of the paper and ink. Which the record shows only takes up between 20 and 25 percent of the final product, the final newspaper's value. John Paul Stevens: Of course, that really is irrelevant, isn't it. Paul R. Kempainen: Oh, yes. John Paul Stevens: If your position is right, you could have imposed the full 4 percent. Paul R. Kempainen: Well, that's correct, Your Honor. We take the position, although we feel it's not an issue here, that Minnesota could have imposed its full sales tax on the publications. And the fact that it did not and instead imposed this use tax on paper and ink I think is probably one of the things that got the state of Minnesota into a little bit of trouble here. It was intending to be solicitous of First Amendment rights and instead it got into this litigation. And the next step two years further down the line, when the $100,000 exclusion came into effect, that again was a point where the legislature was attempting to be solicitous of First Amendment rights, especially the First Amendment rights of small publications who would generally have less of an ability to pay, who impose fewer social costs upon society and therefore, the legislature could reasonably conclude that it would be more inequitable to have them pay this tax, the full measure, than it would be for a larger publication. But it did not do so through a technique which simply exempted the small publications and then left the full measure of the tax on the larger newspapers such as the Star and Tribune. Instead, it did so through-- Sandra Day O'Connor: Has the legislature made any changes since this litigation began? Paul R. Kempainen: --No, it hasn't, Your Honor. The $100,000 exclusion has remained the same. And the $100,000 exclusion applies equally and with the same benefit to the Star and Tribune that it does to the small publications. The effect of the $100,000 exclusion was to give the Star and Tribune an $8000 lessening of a tax bill, a credit on its tax bill. And we simply fail to see how that, in the first place, can be considered any kind of a penalty-- John Paul Stevens: Mr. Attorney General, suppose instead of an $8000 credit or a $4000 credit, you gave them, say, a $25,000 credit. Then there'd be only two or three papers that would pay the tax. Paul R. Kempainen: --Well, the-- John Paul Stevens: Would that be constitutional? Paul R. Kempainen: --I think the decisions of this Court, Your Honor, I don't think necessarily take it that on a general law that would otherwise be valid imposing valid classifications, is necessarily unconstitutional because it applies to only one person. John Paul Stevens: In Illinois they have a practice of exempting all counties under 500,000 from a lot, which is a way of legislating about Chicago. And I suppose you could do the same sort of thing here with an exemption of, say, $35,000. It's perfectly neutral on its face, but people wouldn't have much difficulty figuring out who would have to pay the tax. Paul R. Kempainen: Well, that's true, Your Honor, but that happens in a lot of cases. In the state of Minnesota, to take an example like you had from Illinois, we had a tax on taconite tailings that were dumped into bodies of water. Well, the only taconite plant in the state of Minnesota that did that was Reserve Mining Company. Reserve Mining challenged that, also, on equal protection grounds and lost. John Paul Stevens: Well, what about my question? Do you think if you did raise the exemption as I suggested, it would still be constitutional? Paul R. Kempainen: I'm sorry, I didn't quite understand. John Paul Stevens: The question is if the exemption or the credit, whatever you call it, instead of being $4000 was $35,000, so the only two left were the papers in Minneapolis and St. Paul. Paul R. Kempainen: Yes, Your Honor, I think it would still be constitutional. As long as it was non-content related and as long as there was no evidence of suppressive legislative intent, which there is none in this case. And my point about being non-content related I think brings me to the uncontested fact in this case that Minnesota's use tax on paper and ink is non-content related. It applies equally and across the board to whoever comes within its act, and it makes no difference what the subject matter of the publication may be. Sandra Day O'Connor: Do you think the court in Grosjean would have reached the same result absent Huey Long's activities in Louisiana at that time? Paul R. Kempainen: I think assuming... I think the result in Grosjean, Your Honor, was a result of many factors. One of the factors was the legislative intent which was... and the suppressive intent was... evidence of that was overwhelming in the Grosjean case. And this Court mentioned it in its opinion. It mentioned it twice, that it was that purpose, it was that legislative intent which had a bearing on its decision. Perhaps, though, the main part of the decision was the fact that the legislative enactment in the Grosjean case, the Louisiana statute there on its face was discriminatory and was directly tied to a level of circulation which made it entirely too close to the British taxes on knowledge. Sandra Day O'Connor: Do you think this Court has to look at the potential for abuse or control of the press in the tax scheme in determining its validity? Paul R. Kempainen: I think that's true to a certain extent, Your Honor. But I think it's also well to point out that in a couple of cases in the past which upheld otherwise valid general schemes on regulation... and I'm speaking now about Associated Press versus National Labor Relations Board and I believe the other one was Associated Press versus United States. The dissents in those cases also looked at future impact. And they were concerned and they said so in their dissents that application of the National Labor Relations Act and application of the Sherman Antitrust Act to newspapers would open up a small crack that may not seem like much now, but then it would widen out and pretty soon we wouldn't have any First Amendment left whatsoever. Of course, here we are over four decades later and the National Labor Relations Act still applies to newspapers and the First Amendment is just as strong as ever. I think you just have to... it's a consideration, but I don't think it's all that important a consideration. And especially in a case such as we have here where there is absolutely no evidence whatsoever that the legislature had any sort of suppressive intent or was intended or out to get newspapers, or even big newspapers. Harry A. Blackmun: Of course, in your state you have no formal legislative history ever, do you? Paul R. Kempainen: That's correct, Your Honor. The state of Minnesota does not make a practice, like Congress does, of keeping a legislative history on any formal basis. Harry A. Blackmun: It would be helpful sometimes if they did, I think. Paul R. Kempainen: That's true, Your Honor, if they had the money to do so. But I think state legislatures, unlike Congress, don't have the vast sums at their availability and many states, Minnesota perhaps and New Hampshire in particular I would think, the general politics of the state just would make it impossible for a legislature to spend the amount of money that it would take to build up a legislative record on every single piece of legislation that came through it. Harry A. Blackmun: Some states do. Paul R. Kempainen: Some states do, Your Honor. The larger ones, in particular. William H. Rehnquist: Why would it be particularly difficult for New Hampshire? Paul R. Kempainen: Oh, I just mentioned that, Your Honor, because they're very much... I was reading an article recently about-- William J. Brennan, Jr.: Their assembly has 400 members. Paul R. Kempainen: --Yes, it's a large assembly, Your Honor, and they don't like taxes in New Hampshire. There's no income tax or sales tax in New Hampshire. And the reason I mentioned that, Your Honor, is I read an article about I believe some New Hampshire politician failed to take the traditional "no tax" pledge and lost the election. Moving on to the Grosjean case in particular, I think the only real case that the Star Tribune has with regard to Grosjean is on this tax on knowledge issue. And yet, Minnesota's tax is simply not like the British stamp tax, it is not like the British tax on advertisements, which were the only two taxes on knowledge that the Grosjean court mentioned in its opinion. The Star Tribune virtually concedes as much in its own brief, that it was not a stamp tax. Instead, it tries to bring it into the same category as the British tax on paper. Thurgood Marshall: I don't understand your position to be... I understand the position to be that in England, the first set of taxes were very inocuous and they went on and on and on. And eventually, they went too far. And I understand the position to be that if they let down and let you start this, in years to come it might get worse. Isn't that more what their argument is? Paul R. Kempainen: That may be the Star Tribune's argument, that's true, Your Honor, but I don't believe that the history of the taxes on knowledge would support that. Thurgood Marshall: I only said I thought that was their position. Paul R. Kempainen: Oh, yes, Your Honor. In that case, it might be. But the history of the taxes on knowledge does not support that. All I need do is quote two passages from the Grosjean opinion itself, which went into a very great amount of detail with regard to the British taxes on knowledge. In the Grosjean opinion on page 246 it says, and I quote, "The main purpose of these taxes was to suppress the publications of comments and criticisms objectionable to the Crown, does not admit of doubt. " Later on in the same page this Court said, and I quote, that "The taxes had and were intended to have the effect of curtailing the circulation of newspapers, and particularly, the cheaper ones whose readers were generally found among the masses of people went almost without question, even on the part of those who defended the Act. " This is this Court talking about the history of the British stamp taxes and the British taxes on knowledge. And it may be true that insofar as British history is concerned, their import duty on paper... or rather, duty on paper... was used with that intention in mind, and also coupled with the fact that the British taxes on knowledge granted notoriously unfettered discretion to the British administrations in the collection of those taxes, thereby making them even easier tools to use to suppress their political opponents. Those two facts together made the British taxes on knowledge odious to American experience. Of course, in the case of Minnesota's use tax on paper and ink, neither one of those facts are present here. There is no intent to suppress. Revenue raising was not given just lip service in Minnesota; it was the basic reason for this, and it was part and parcel of the Minnesota Miracle Act which was passed back in 1971. And, of course, there is no unfettered discretion in the collection of the Minnesota use tax, as well. John Paul Stevens: But let me just explore your argument for a moment. Supposing that in 1974, when you passed the exemption, there was evidence that there was a change in control of the legislature. I don't happen to know anything about Minnesota politics, but suppose all the rural districts where these smaller newspapers are mostly published happened to elect people, and they then passed an exemption for the newspapers that supported them, and that could be shown. Would that make it a different case? Paul R. Kempainen: No, Your Honor. Although it would make it a different case if, as Your Honor says, this was an exemption. But it's not an exemption; it's an exclusion. John Paul Stevens: Then go back to 71. Suppose the original tax, it could be shown that the governor and the majority of the legislature were opposed by the principal newspapers who would bear the burden of the tax, and in their campaign they explicitly said, we think the newspapers ought to pay their fair share of the public burden and all the rest of it. And then there was a political debate on the issue. Would that make a difference? Paul R. Kempainen: I would suggest, Your Honor, that this Court could use the Grosjean decision and invalidate that tax, then. John Paul Stevens: So we have to get into the politics of the particular state to know whether a tax of this kind is bad or not, then. Paul R. Kempainen: At least the legislative history; not necessarily the politics, Your Honor. Up until this point, we've talked primarily about the issue as it is framed in terms of a violation of the First Amendment per se, and we really haven't talked too much about the equal protection issues. I would like to take the remainder of my time to talk about the equal protection issues as they arise here. I would like to... Yes, Your Honor? John Paul Stevens: Could I ask just one other question about this motive problem. Assume we had a totally non-discriminatory sales tax; that this tax that was put into effect was one that just treated newspapers exactly like all other businesses, so there was no singling out. But it was also clear that the reason for doing it was that the legislature didn't like the dominant paper in the state. Would that be bad, too? How controlling is-- Paul R. Kempainen: You mean they passed a general sales tax on all businesses? John Paul Stevens: --Right. Absolutely not discriminating, but for a political motive. When is motive controlling? I just wonder. Paul R. Kempainen: Well, I think that would be a closer case, Your Honor, and I can only say that it's not the case here. And I would hesitate to speculate on what would be the outcome of that case. With regard to the equal protection issue, this was given some space in the briefs, and I think rightly so. I'd like to mention that our primary position here, as it has been throughout this litigation, is that the anti-rational basis standard of review is the correct standard of review here to use. This is because the thing being taxed, the wholesale commercial purchase of paper and ink, is simply not a fundamental right so closely connected to actual communicative acts that it requires the strict scrutiny standard of review. There's certainly no more of a fundamental right than the Star and Tribune's purchase of gasoline or tires for its delivery trucks, which are subject to the excise tax, or its purchase of desks and reporters, desks and typewriters for its reporters, which has always been subject to sales and use taxation in Minnesota in any event. Any business that buys desks and typewriters for its people, for its employees, has to pay sales tax on those desks and typewriters. This is simply an incidental burden, an incidental item of overhead, just like those other incidental items, that any commercial business has to absorb in the state of Minnesota and, indeed, in all other states. Therefore, we feel that it's sufficiently remote from actual communicative acts so that where we don't deny that it may have some effect upon First Amendment interests, it is not a fundamental effect invoking strict scrutiny. But having said that, I think I still want to go on and talk about how this case can meet the strict scrutiny standard of review in any event, because if it meets strict scrutiny, it certainly meets the anti-rational basis standard. All the strict scrutiny standard of review requires is that there be a legitimate and important government purpose served by a statute which is sufficiently tailored so as to achieve that purpose without unduly restricting First Amendment interests and actual communicative acts. Now, the original and basic use tax in this case is so tailored. It serves... it was enacted in 1971 to serve an important and fundamental governmental interest, which is revenue raising for an important social program, and it is sufficiently tailored so as to get as far away from the actual communicative act of printing and publishing a newspaper as possible, and at the same time achieve its revenue-raising purpose by taxing the wholesale purchase of paper and ink. As for the $100,000 exclusion, of course, our first position there is that it's a benefit anyway, and it's a benefit that applies equally and across the board to all publications. In fact, the Star and Tribune, by reason of the fact that during the years in question it had two editions, the morning edition and the evening edition, it received two exclusions, getting a benefit of $8,000 off its tax bill. Byron R. White: At what level does the sales tax normally cut in... a penny for every dime, or is it? Paul R. Kempainen: I don't recall the actual level now in Minnesota, Your Honor, but-- Byron R. White: Do you think you pay a sales tax if you buy something for 20 cents? Paul R. Kempainen: --It was at 9 cents or-- It was for anything less than 9 cents you did not have to pay a sales tax. And I'm not sure if that's still correct but there was a level at a small level like that where it cuts in. Byron R. White: But do you think... you think the newspapers are normally sold at a level that's above the cutoff. Paul R. Kempainen: I know they are, Your Honor. I buy mine all the time at 25 cents a copy. Byron R. White: And anytime you buy something for 25 cents, unless it's exempt, you pay a sale tax. Paul R. Kempainen: That's correct, Your Honor. We feel that there was a compelling reason, in any event, for the $100,000 exclusion. Even assuming that it was discriminatory and was not... and is subject to strict scrutiny. That compelling reason being that there was an equitable... that a need for an equitable system of taxation that took into account the special problems of small newspapers. And the legislature achieved that by a tailored technique; namely, an exclusion rather than an exemption. An exclusion, a tax credit, if you will, that was given equally and across the board to all papers. Byron R. White: What's your... that's easy to talk about the special needs of small newspapers, but what is that? Paul R. Kempainen: A small newspaper, Your Honor? Byron R. White: Yes. What's the special need of a small newspaper that prompted the exemption? Paul R. Kempainen: Most small newspapers, Your Honor, are-- Byron R. White: You mean mainly, they couldn't afford it? Paul R. Kempainen: --Yes, Your Honor. They had a hard time paying this, they had less of an ability to pay, they were mainly located in rural areas, had a smaller circulation and, therefore, had less chance for advertising revenues. There are any number of reasons that the legislature could have drawn on in order to give a special-- Byron R. White: It was purely a financial break to them. Paul R. Kempainen: --Yes, Your Honor. But it was also a financial break... I wish to emphasize... that was equally applicable to the large newspapers and the large publications. In summary, what we have here is a simple revenue-raising statute. It's non-content related, it's not a license tax, it's not tied directly to circulation, and it was not imposed with any improper purpose, least of all a suppressive one. Whatever classifications there are in that statute, they were imposed with a view towards benefiting First Amendment interests and for being solicitous toward then and not with a view towards suppressing First Amendment interests. Whether the anti-rational basis standard of review is used under equal protection, we contend that it should be the correct standard, or whether the strict scrutiny standard of review is used, as the Minnesota Supreme Court did below, this statute meets the requirements of equal protection. It is also not violative of the Grosjean case or any other principles under the First Amendment per se. Accordingly, we feel that the law is constitutional and respectfully ask that the decision of the Minnesota Supreme Court be affirmed. Warren E. Burger: Do you have anything further, Mr. Brown? You have two minutes remaining, and we'll complete the case before lunch. Lawrence C. Brown: Thank you, Mr. Chief Justice. Justice O'Connor, you ask Mr. Kempainen whether there have been any changes in the Minnesota sales and use tax scheme since this litigation commenced. The legislative session which just ended a few weeks ago increased the basic sales tax rate in Minnesota to 6 percent on all articles that sell for more than 9 cents. They left the sales tax rate on farm machinery at 4 percent, and the sales and use tax on motor vehicles at 5 percent. I point this out simply to note that there is no comfort in the state's argument of uniform rate, because the legislature has now broken it down and rates are no longer uniform. The other point I'd like to make is Mr. Kempainen stated that you must find bad motive in order to invalidate the tax at issue, and what you do is you look to legislative history in order to establish bad motive. Well, we don't think bad motive is material to a First Amendment analysis, but the state of Minnesota here has created a situation where we have no legislative history. If Mr. Kempainen's approach is correct, what it means is that by not creating legislative history, a state can insulate a tax on First Amendment activity, and if bad motive is a requisite of proof you can never prove it; therefore, you can never challenge it. We were invited to come here-- John Paul Stevens: That isn't really quite right. We did have a case from Minnesota, the Fairmont Creamery case... that's not the name of it-- Lawrence C. Brown: --The Cloverleaf case. John Paul Stevens: --Yes. They found... there was a trial court finding on the motive there. Lawrence C. Brown: Your Honor, what that proves is when the Minnesota legislature wants this Court to have legislative history, it knows how to create it. I would close only with the observation that we were invited to come here, as the transcript of oral argument reflects, by the Chief Justice of the Minnesota Supreme Court, and in so doing, we come here seeking comfort under Justice Holmes' admonition that the power to tax is not the power to destroy, while this Court sits. We pray that you reverse the judgment appeal from him. Warren E. Burger: Thank you, gentlemen, the case is submitted.

Earl Warren: Mr. Kerpelman, you may proceed. Francis B. Burch: It is -- I understand Mr. Kerpelman, this -- Mr. Chief Justice -- Earl Warren: Yes. Francis B. Burch: -- do not propose to argue any further this time. Leonard J. Kerpelman: I intend to (Inaudible) Francis B. Burch: That's it. Leonard J. Kerpelman: I intend to sit at the meantime. Earl Warren: Yes, very well. Mr. Burch. Francis B. Burch: Mr. Chief Justice, may it please the Court. At the outset, I would like to state that the respondents do not intend to waive the question of the jurisdiction of this Court in this matter. We covered this in our brief in opposition to the granting of the writ. We did not repeat our argument; however, in the brief that we submitted on the merits of the case. I merely say that by way of passing. I understand that the Court in Engel has in effect, indicated that the Court does have jurisdiction in a case such as this. Simply for the record, I would merely like to point out that we do not by having failed to mention it in our brief on the merits intend to waive it. Now -- Potter Stewart: Mr. Burch, the plaintiff -- the petitioner -- or two petitioners, the -- William J. Murray III who is a -- was then and now still is in the Baltimore school system, is that right? Francis B. Burch: Yes, Mr. Justice Stewart. Potter Stewart: Suing through his (Inaudible), his mother, and his mother, individually, is also a petitioner. Francis B. Burch: Yes, sir. Potter Stewart: And they both alleged that they're atheists, is that correct? Francis B. Burch: Yes, sir. Potter Stewart: And that the ordinances or rules of the Baltimore school system interfere with the exercise of their belief or disbelief. Francis B. Burch: That's correct, sir. William O. Douglas: It comes down to the Doremus case from New Jersey, is that right? Francis B. Burch: The Doremus case held, of course, -- William O. Douglas: Yes. Francis B. Burch: -- there was no violation except that the question with respect to the individual child's rights was moot because the child had then graduated from the school. Potter Stewart: But this child is still in the school. Francis B. Burch: This child is still in the school. Our position is simply this, that the Establishment Clause of the First Amendment is a matter of decree. In other words, the wall of separation between church and state is a matter of decree. It is not an absolute, fixed, finite wall, and this Court has so stated on several occasions. As a matter of fact, in Zorach, it was stated that when you get into the question of the separation between church and straight -- state, it is indeed a matter of decree. And, it was because of this very factor that this Court in Everson held that though religious exercises or religiousness was involved, that it still did not violate sufficiently the Establishment Clause as to constitute an abridgment of that Clause. The same was true in McGowan, the Sunday Blue Law cases. The Court in that case held that, historically, there was no question about it but that the Sunday Blue Laws were laws which were established for the benefit of religion, from the day of rest, to keep holy the Sabbath day. As a matter of fact, under the Maryland statute in McGowan, the statute provides so that the day of rest, in order not to profane the Lord's Day. So, we have this question of religiousness in McGowan, but this Court stated in that case that there was not a sufficient degree of abridgment of religiousness, so to speak, as to violate the Establishment Clause. Now let's go, if we may, to the case at bar. This is the Murray case. It is true that the rule of the Baltimore City schools provide that there shall be the Lord's Prayer and the reading of passages from the Bible. This is a long established practice which goes far beyond the rule itself. Historically, it will be -- it can be shown, were there's not a case up on demurrer. It can be shown that the practice goes back at least as far as 1836 throughout the schools of Maryland. Now, the practice, we maintain, has something in it other than religiousness itself. It is true that the Lord's Prayer, it is true that the Bible, sounds and religion has its roots in religion. This, we do not deny. We point out however, that the use of the Bible, the use of the Lord's Prayer in the morning exercises has a significant salutary effect in several respects. First of all, it has a traditional teaching of moral and ethical values. This, I believe even my Brother, Mr. Kerpelman, admitted when he stated that it was a beautiful prayer, the most beautiful prayer ever composed or at least many people believed that it was, that the literature of the Bible was historical and that it was the most widely read book of all books ever composed. Now -- Arthur J. Goldberg: Mr. Burch, (Inaudible) Francis B. Burch: The Lord's Prayer is said in unison. The individual child who conducts the opening exercise for that day which includes not only the prayer but the salute to the flag, the individual child would probably say his version and those who join him will probably say their version. Arthur J. Goldberg: (Inaudible) Francis B. Burch: It is recited together. Now, I cannot say that this may absolutely be true in every school. Of course, we have no record in this case, but my understanding is that basically, a child is selected for the particular day to conduct the morning exercises and then everybody recites the prayer together. They can say their version, if they prefer one, or they can say nothing even if they're not excused or do not wish to take advantage of the right of excuse. Arthur J. Goldberg: What about the (Inaudible) Francis B. Burch: I think the -- basically the King James Version is the one that is used most often. There's of course provision in the rule itself which says that the Douay Version may be used by those who prefer it. But the King James Version, I believe, is the one that is used in most instances. Potter Stewart: Teacher reads it in each classroom? Francis B. Burch: Generally, the students who are conducting the morning exercises will read passages from the Bible as they will also start the Lord's Prayer and start the salute to the flag. Potter Stewart: Is this the one where it's a broadcast through the school or is that the (Voice Overlap) -- Francis B. Burch: No, never -- there is an assembly, it is broadcasted in every -- all of the students should -- that they gather and is done in unison in the assembly. In some of the schools, I believe, it is broadcasted. In others, I'm not sure. I believe it might be conducted within the classroom itself. Potter Stewart: Each individual classroom. Francis B. Burch: In each individual classroom. Potter Stewart: You say a student, rather than the teacher, reads the Bible? Francis B. Burch: Student, generally, is the one who conducts the opening exercise. Now, this is the best of my information. Of course, we are at this disadvantage (Voice Overlap) -- Potter Stewart: We don't have a record here. Francis B. Burch: We don't have a record. Potter Stewart: That's the difficulty in this case. Francis B. Burch: Because it came up on demurrer. William O. Douglas: Would your argument then vary, Mr. Burch, if this -- instead of the Bible, it was the Koran that was being read everyday in school? Francis B. Burch: Mr. Justice Douglas, my argument would not change, sir. We say this, that the school is charged with the responsibility of doing what it considers proper within the framework of the school system to develop the children under their care. The school then has the right to make a reasonable selection as to what it thinks will do both in the way of the courses conducted and in the material used whether it be in history or whether it be in this area in the morning exercises. They may use, for instance, the hymn America instead of using the Salute to the Flag. They may use the King James Version or the Duran instead of using the Douay Version. Our position is that this is a matter that rest within the discretion of the school authorities and unless there -- it can be shown that this constitutes at a violation of the Establishment Clause, that then -- it is then within the prerogative of the school to do that which they think is proper for the best interest of the children. William J. Brennan, Jr.: Well, Mr. Burch -- Francis B. Burch: Excuse me, sir? William J. Brennan, Jr.: -- (Inaudible) under Section 6, are arguing that? Francis B. Burch: No.Mr. Justice Douglas was inquiring whether or not my view would be the same or my argument would be the same if that particular version could be used or if that reading could be used. William J. Brennan, Jr.: I gather Section 6 (Inaudible). Francis B. Burch: I'm sorry. I didn't get your question, Mr. Justice. William J. Brennan, Jr.: It would not -- Section 6 preclude reading from the Koran? Francis B. Burch: In that it specifically provides that it may be used, that is, the Douay Version may be used. It might be construed to say that all other instruments may not be used. I don't think that's a proper construction. And as a matter of fact, I doubt very seriously whether the Board or the school principal would so construe it. William J. Brennan, Jr.: Well, it says, “shall be opened by the reading of a chapter in the Holy Bible and/or the use of the Lord's Prayer.” Francis B. Burch: And/or the use of the Lord's Prayer. William J. Brennan, Jr.: Do you think that might be interpreted to authorize that reading from the Koran? Francis B. Burch: I think that it -- if you are going to say that there shall be a complete, strict construction of that particular role, then maybe it cannot be used, the Duran. Potter Stewart: It cannot be used to open the exercises but there's nothing there -- Francis B. Burch: In the opening exercises. Potter Stewart: -- that says it couldn't be used to close them or at any time during the exercises. Francis B. Burch: It may be used -- Potter Stewart: But I don't think that has anything to do with this case. Francis B. Burch: During the exercise or -- actually, we say that the morning exercises are not there for religious purpose. Now, we do not deny that maybe they began because historically, if you go back, there was always religion in the schools and, of course, this is one of the reasons why, as I understand it, back in the prerevolutionary days, the schools were not secular. They were really religious schools. This, I understand, is why you had the First Amendment, the Establishment Clause, so that they could not have religion taught in school as religion per se. Now, subsequently, when you got into your common schools and your public school system, the school authorities, although not required to by rule or regulation, as a matter of either religiousness at that particular time or it's the combination of religiousness plus the inculcation of these moral and ethical values within the students, decided that this was a good practice for the benefit of the whole child. Beyond that, we have the indication in the brief which we have filed that Dr. Brien, the superintendent of the public schools of Baltimore City, has indicated that these exercises, these morning exercises, have an extremely salutary effect upon the children coming into the school. It puts them in a frame of mind. There is a sobering influence. It puts them in a frame of mind when they can approach the school day with some sobriety -- Potter Stewart: But you could (Voice Overlap) -- Francis B. Burch: -- we have a respect for authority -- excuse me, sir. Potter Stewart: Just give them tranquilizer pills if that's the only -- Francis B. Burch: That's -- Potter Stewart: That's the purpose. Francis B. Burch: Dr. Brien says that what this does, it establishes a discipline tone. It establishes a respect for authority and it also has the value of giving them the inculcation of moral and ethical precepts. This, he considers to be a very, very significant effect to begin the school day with. Earl Warren: Let us take a state like Hawaii. Hawaii has a large percentage of people of Japanese origin, large percentage of people with Chinese origin. And in many places in the islands, there will be a vast majority of either Chinese or Japanese in their public schools. Do you -- do you say that in schools of that kind it would be proper to have a -- in the Chinese school to have a Buddhist ceremony that all children, including Christians, must conform to or have their parents disavow it or the Shinto religion, so far as your family is concerned? Francis B. Burch: Our position, Mr. Chief Justice, is this. That if the school authorities in that particular jurisdiction should determine that morning exercises will serve a significant purpose other than pure religiousness itself, then we say that they then had the right to make such selection of material as the school authorities in that instance think will best accomplish that purpose. Earl Warren: Your answer -- Francis B. Burch: That -- Earl Warren: -- would be yes then, that they could do that. Francis B. Burch: They could do that. Earl Warren: Yes. Francis B. Burch: If the purpose is not to teach religion, not to instruct in religion, but simply to set the tone of the day and to give them the benefit of the discipline tone, to give them the benefit of respect for authority which is one of the most significant things that is needed in the school system whether it be secular, whether it be parochial, whether it be private. Arthur J. Goldberg: (Inaudible) Francis B. Burch: I would say that it is one of the effects of the exercise, but it is only one of the many effects of the exercise. And, as long as there is a purpose which can be served. As a matter of fact, Mr. Justice Black in McGowan stated, it is equally true that the Establishment Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenants of some or all religions. In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation. This is our position. John M. Harlan II: Of course, you've got the record down. The Court laid great emphasis on the fact that, although the Sunday Laws had their origin in religion and, over the years, they had departed from that origin and had taken on the characteristic of simply a legislative determination that a day of rest was an appropriate thing to have in the community. And therefore, the real question there was as to whether or not it was permissible, given that transmutation in the original background to select Sunday because it happened to coincide with the -- Francis B. Burch: Mr. Justice Harlan, my reading of McGowan indicates to me that the Court recognized that there was a mixture. There was religiousness. It was religious in its origin. It had not been completely obliterated the religious aspect, but that there was this other civic or civil purpose that was to be accomplished. And, I might say that McGowan was a case where there was a very severe penalty imposed upon those who did not wish to abide by the rule and even going down to the latest amendment to the Sunday Blue Laws in Maryland which was involved in McGowan, the -- this Court pointed out that the -- there was the reference in there that it was to prevent profaning the Lord's Day which indicates the religious, undercurrent, that the Sunday Blue Laws were intended to effect. And true, it had the civil aspect to it. This is what we say. As long as the Court can find a reason or that there was justification by the legislature or the state body to rationalize or to justify the use of this particular exercise for some effect other than religion that it then does not conflict with the Establishment Clause. As a matter of fact, that very statement was made in McGowan where the -- Mr. Justice Black at page 425 stated, a statutory discrimination will not be set aside if any state affects reasonably may be conceded -- concede to justify it. Now, I know that was in relationship to the Equal Protection Clause, but it -- Earl Warren: But we also pointed out in McGowan, didn't we, that the state had departed so far from religious purposes that it specifically authorized the sale of liquor and the keeping open of a dancing salon and a few other gambling and a few other questionable things, and didn't we point out in there that that was evidence of having been a real departure from the religious purposes that went back into the ages? Francis B. Burch: Yes, Mr. Chief Justice. Earl Warren: But when you come to the saying that it had a basis in religion, couldn't we say the same thing for practically all of our basic crimes? Are they not -- do they not stem from a violation of the Ten Commandments? Francis B. Burch: I say that they do stem from a violation of the Ten Commandments, but the mere fact that they're made crimes by law doesn't mean that they're in violation of the -- Earl Warren: But McGowan went on this theory -- Francis B. Burch: -- First Amendment. Earl Warren: -- that there was such a departure from the original concept that they were in that category. Francis B. Burch: Mr. Chief Justice, I agree that there was a departure in McGowan and I say that the legislature and the state body is entitled to the presumption of constitutionality where it can be shown that the particular exercise, the particular service, or whatever you might wish to call it, has a basis other than in religion itself. Earl Warren: Is there any departure whatsoever in your case from religious purposes? Francis B. Burch: The only departure that -- Earl Warren: There is, I wish you'd state it. Francis B. Burch: We could point to specifically in the same light as McGowan is on the excuse provision in which the rule was amended to provide that the child who did not wish to attend could be excused. I don't say that this is the same type of departure as existed in McGowan. I would like -- Hugo L. Black: May I ask if -- Francis B. Burch: Yes, sir? Hugo L. Black: This -- if it depend on the majority of the people in the school district, does it necessarily follow that the religious doctrine that would be taught would naturally follow the majority in their district? And there are so many different sects in this country that you would have different public schools teaching different religions in -- everyone and then these people who are so anxious to have this particular one taught would probably not be so anxious to have the other one taught. Francis B. Burch: There's a -- Mr. Justice Black, may I say that I think this was basically answered in your opinion in McGowan when you said the mere fact that it may -- a particular practice may or may not coincide with the views -- Hugo L. Black: That's right. Francis B. Burch: -- of some or all religions. Hugo L. Black: That's right. And I -- Francis B. Burch: It doesn't make it unconstitutional. Hugo L. Black: Well, I'll call your attention to this fact. For many years, we've had a fight on this country to have more time for working men to all get off from work. And, it so happens that this seventh day had been the one where they've gotten off from work and they have it, as been established in this country because I took note in several pieces of legislature now often, that its thought to be good that there'd be holidays and the mere fact that at one time, people thought the seventh day was the only day you could have a holiday, would it be -- wouldn't make it any different if you provided that that holiday should be on Tuesday or Wednesday. That might conflict with somebody else, but the basis of those opinions, at least my view point, was very simple, with the power to protect people from being employed two long hours in one day or two many days in one week. It's a well recognized power and it could -- there could be one written up in such way. It said we're going to have it on the seventh day and we're going to have it from -- holiday from 10:00 until 12 o'clock to let people go to a certain church, why you'd have a different question. But so far as I'm concerned, your argument here does -- my position in McGowan has nothing to do with this case. Francis B. Burch: I am not drawing on McGowan as being the absolute authority. I am drawing on McGowan to sh -- to try to persuade the Court that basically, if we are in a position to show that this will perform a function other than pure religiousness itself -- Hugo L. Black: Are you disavowing -- are you disavowing for the State of Maryland that which I had understood is generally acknowledged from everything I've read about it and all the communication that has been transmitted about it, that this is because -- they want to do this because it impresses the Lord's Prayer. Many of us have repeated very often, and require the reading of the Bible. Are you disavowing that the purpose is to increase their interest in that particular religion? Francis B. Burch: I am not disavowing anything in that respect. What I am saying is -- Hugo L. Black: You could not, could you? Francis B. Burch: I believe that the school authorities feel that, although it has its basis in religion, although it is in the nature of a religious prayer, as far as the Lord's Prayer is concerned or the passages of the Bible, it is calling upon these ancient documents which set forth many moral lessons and ethical values and that these helped inculcate the spirit of morality and the ethics within the child himself. Hugo L. Black: So did the Koran and so do the Veda. Francis B. Burch: The US decided -- Hugo L. Black: Do you think there's a slightest possibility that if Baltimore, if people there would ever have one of those books read as a part of a religious ceremony, one of either the Koran or the Veda or the Buddhist doctrine. Francis B. Burch: It would be pure speculation on my part to say whether they would or whether they wouldn't. I can concede where they would. I would say that in the society in which Baltimore exists, that the likelihood is in the discretion of the School Board in selecting a work which it thinks would be most in tuned with the spirit of the people of the State of Maryland or the City of Baltimore. Hugo L. Black: It's a religious principle. Francis B. Burch: Pardon me? Hugo L. Black: Were they religious principles, of course. Francis B. Burch: I think it -- Hugo L. Black: It seems to me like -- Francis B. Burch: I think it's a combination of both. Hugo L. Black: You'd do better if you'd face the iss -- I don't know what's the answer to it, but how can you assert seriously or argue or ask us to consider seriously, this is not a religious ceremony based on the Bible and the Lord's Prayer. Those with the strongest thought as I doubt would not hesitate to say that. Francis B. Burch: Mr. Justice Black, if I may, sir, I would like to say that I do not think it partakes of a religious ceremony. I think it has religion in it. Byron R. White: Mr. Burch, you -- Francis B. Burch: I think it does not partake of religious instruction. I think it does not partake of religion as such. I think it has these other values. I think that it is intended for the children to know the Lord's Prayer and to know certain things pertaining to passages from the Bible. I think it's intended for a spirit to start off the school day and I think that's the only basic purpose. It coincides with religion. This, I cannot deny. The -- Earl Warren: (Inaudible) Francis B. Burch: But, Mr. Chief Justice, we take the position that if it serve a secular purpose within itself, the mere fact that it may be sou -- it may be framed in religion does not constitute an abridgment of the Establishment Clause. Earl Warren: Wouldn't the -- wouldn't their full religious ceremony constitute or accomplish the same purpose? Francis B. Burch: If it's a full religious ceremony for religion itself? Earl Warren: No, no, just to promote the -- just to promote the welfare of the students and to put them in a proper frame of mind for their work throughout the day. Wouldn't a full religious ceremony accomplish the same purpose? Francis B. Burch: It's conceivable that it could have. Earl Warren: And couldn't it be justified on your argument just as well? Francis B. Burch: Again, I say that I think it goes again to a matter of degree. As this Court has said, what the wall separates is a matter of degree. Earl Warren: Could they go at all beyond the reading of the Lord's Prayer and reading of the Bible -- Francis B. Burch: I think that -- if there's any comment -- Earl Warren: -- as a matter of degree. I beg your pardon? Francis B. Burch: If there's any comment that has the -- partakes of the nature of instruction or discussion in these opening exercises, that it might well be an abridgment of the First Amendment, the Establishment Clause. This is one of the factors that we have here. It is not -- there is no comment with respect to these prayers. This is different from Engel. In the Engel case, the very, and if I may take a moment to mention to the Court, as I know the Court is aware of the record in the Engel case, that on the regent statement on moral and spiritual training in the schools, which was recommended by the Chief Administrative Officer of the New York State Board of Education, they said this. “In our opinion, the securing of the peace and the safety of our country and our state against such dangers points to the essentiality of teaching our children as set forth in the Declaration of Independence that Almighty God is their creator. We believe that the Oath of Allegiance be joined with this act of reverence to God.” And then they follow with the Regent's Prayer. We believe that thus constantly confronted with the basic truth of their existence. The children will be properly prepared to follow the faith of their fathers. We believe that thus the school will fulfill its high function of supplementing the training of the home, ever intensifying in the child the love of God for parent and for home which is the mark of true character in training. We believe that this statement will be subscribed to by men -- all men of goodwill. This was clearly intended for the purpose of teaching religion within the opening exercises in the schools. Earl Warren: Isn't that merely paraphrasing? Francis B. Burch: This is the statement (Voice Overlap) -- Earl Warren: Isn't that merely paraphrasing and enlarging upon the letter of your superintendent? Francis B. Burch: I say that the only place that the letter of our superintendent approaches is, in that it says it recognizes the existence of God but it goes on and establishes the salutary effects that this has with respect to the conduct of the school day. This is what the important part is in our opinion. How it helps the school to get on with the work of that day. William J. Brennan, Jr.: Mr. Burch, Chief Justice (Inaudible) that this, there seems to be no substantial room for dispute that the reading of passages from the Bible and the recital of the Lord's Prayer are Christian religious exercises. Now, is there anything in the court opinion below which takes issue of that conclusion here, (Voice Overlap) -- Francis B. Burch: Mr. Justice Brennan, there is not, and I might say that, again, this is because we are at the disadvantage of being without a record in the case. William J. Brennan, Jr.: Well, (Inaudible) -- Francis B. Burch: In other words, we didn't have -- William J. Brennan, Jr.: It didn't have the concern -- Francis B. Burch: Excuse me, sir? William J. Brennan, Jr.: Chief Judge (Inaudible) did it. Chief Judge (Inaudible) had no difficulty concluding the religious exercises. Francis B. Burch: This was his conclusion. William J. Brennan, Jr.: Well, I don't find anything in the Court opinion which -- Francis B. Burch: I respectfully suggest that it was a dissenting conclusion. William J. Brennan, Jr.: Well, I don't find anything in the Court opinion which takes issue of that. Francis B. Burch: This was an assumption that he made and that there may have been some basis for his assumption. We take the position that it does have and if it can be determined or if it can be found that it does have the salutary effect, then we say this rest within the prerogative of the School Board to allow this particular type of morning exercise to be conducted. John M. Harlan II: I think it would be helpful if, starting from the premise, that this is a religious exercise. You could enlighten some of us as to whether you think this case can be distinguished in the other cases in this field that the Court has decided starting with Everson, McCollum, Zorach, Torcaso, Engel, and whether if you think that they -- it cannot be whether you're asking us to overrule those cases and to reexamine this whole problem of the -- this aspect of the First Amendment. Francis B. Burch: Mr. Justice Harlan -- John M. Harlan II: Fourteenth Amendment, I beg your pardon. Francis B. Burch: I might say this, sir, that to get into the question of the degree of the separation of church and state, we can make without any problem whatsoever a very significant distinction between the exercises in the Baltimore City schools and those which were conducted in New York under the -- with the Regents' prayer. That clearly was a prayer which was composed by the authorities in question. This was, as the Court pointed out in Engel, the Book of Common Prayer changed from king to king and queen to king. This was one of the dangers of letting the State get into the business of actually composing a prayer. This is what I conceive to be one of the basic reasons why this Court struck down the 22-word prayer in Engel. In our case, we don't have a state putting its hands into the composition of a prayer. This is a prayer, the Lord's Prayer, traditional, 2000 years old, the Bible going back even beyond, although the versions have changed to somewhat between the Holy Scriptures and the King James Version and in the Douay Version. In substance, they are basically the same, although there's some differences in terminology. We're talking about a traditional exercise. We're talking about a traditional prayer and I would say this. I would not ask this Court to uphold the right of a state to enter into the field of composing prayers because I say that if it did so, it would be opening the door to the slanting of the prayer to suit the particular area or the particular teacher or the particular jurisdiction in which it is composed. This, I have no problem with. I think Engel has no authority for the position that we find ourselves in this case. Arthur J. Goldberg: Is your basic point (Inaudible) Francis B. Burch: I say that I believe that the most that can be said about Engel is that, as long as it doesn't get involved in the composition of an official prayer or the sanctioning of an official prayer which we believe the Court truly meant a new prayer, a modern prayer, some prayer that did not have its origins in history. Some prayer that did not have its origins which had been read as the most widely read prayer. It has beauty which the -- although all of them may have some of the beauty that the Lord's Prayer has, none of them can get together and put all of that beauty into one prayer. John M. Harlan II: What do you do with the -- Francis B. Burch: These are -- John M. Harlan II: What do you do with the McCollum case? Francis B. Burch: McCollum, I find difficulty with because this was a case where religious instruction was actually conducted on the school premises by religious teachers. And, the McCollum case was simply a case where the Court says, “We will not permit the taxpayer's money to be used to permit religious instruction by religious people on the school premises.” But they said if you go up, as it did in Zorach, if you remove yourself from the premises and they permit -- on the release time, to go away where the state's pocketbook is not involved, then we see no violation. John M. Harlan II: I thought you said that religious instruction in your opinion was the thing that differentiated this case from the situation that you have if this was a religious exercise in an avowal of faith. Francis B. Burch: I'm not quite sure I understood your question, Mr. Justice Harlan. John M. Harlan II: I thought you said that -- you thought your case was different and do not come under the Fourteenth Amendment because this was not a religious exercise but merely an -- but merely instruction, ethical instruction. Francis B. Burch: No, I said it is -- I say it is not instruction. We don't say that this is religious instruction. We say that this is the opportunity for the children at the beginning of the school day to partake a bit of the history of the Bible, to partake a bit of raising their minds as they do in the Lord's Prayer, to God. I cannot deny this but that there -- that it serves a purpose of inculcating these moral and ethical precepts and values within the children themselves and it gives them a tone for the beginning of the day. In the -- we're talking about the McCollum, a 45-minute release time program to go into the classroom with religious teachers to study religion, the religion of the choice of the particular student, using the taxpayer's money for that purpose. This, I think, was the defect in McCollum. Torcaso, I have no problem with because Torcaso was simply a case where the oath was held -- the oath itself was not held to be bad. It merely said that you cannot compel the oath to be taken by this particular man who has the right to this particular office except for that oath. The same thing is true of Barnette. Arthur J. Goldberg: What do you say to the fact, according to some, they wouldn't disagree that it's more offensive to read the Bible without this version than to discuss the Bible? Francis B. Burch: May I say, with all due respect, Mr. Justice Goldberg, I have never heard that statement made and at least it hasn't been made to me. Arthur J. Goldberg: That happens to be the truth, (Voice Overlap) -- Francis B. Burch: But, I would say this that I think that there can be danger in discussion. And I was -- I recall Mr. Justice Stewart's question to Mr. Kerpelman about compulsory -- a compulsory course in religion compelling all the children to take a course in religion and Mr. Kerpelman said he saw no constitutional abridgment there. And yet in my own personal opinion, if I may express a personal opinion, I think the danger in that area would be so far greater than the mere recitation of the Lord's Prayer and reading of passages of the Bible without comment because there is the opportunity for the particular teacher with the particular views to get in and really drive home this religious philosophy that he or she may entertain. Potter Stewart: Mr. Burch -- Francis B. Burch: This is the problem that we see ourselves in. Where does it lead? Potter Stewart: I didn't mean to interrupt you. Francis B. Burch: No, excuse me. I didn't know. Potter Stewart: You've devoted all your time to discussing the question of whether or not this violates the Establishment Clause of the First Amendment insofar as that provision might be incorporated in the Fourteenth Amendment. You haven't said a word about -- Francis B. Burch: The Free Exercise. Potter Stewart: -- the Free Exercise Clause. Is somebody going to -- Francis B. Burch: Mr. Justice Stewart, I was just going to say that Mr. Baker -- Potter Stewart: Fine, fine. Francis B. Burch: -- had intended to address his remarks to that particular question and I see I've really gone beyond the time that had been allotted and with the permission of the Court, Mr. Baker will pick up the discussion concerning free exercise. John M. Harlan II: (Inaudible) so if you face this problem, frankly, that what these cases really present us with is whether we're going to reexamine the premises, right or wrong, of our past cases in which these issues have been decided. Francis B. Burch: I think this -- Potter Stewart: Is that an overstatement? Francis B. Burch: -- case is certainly a question of reexamination and how far did -- we want to go. John M. Harlan II: Well, isn't that -- that's the real problem in the case. Francis B. Burch: Yes -- Mr. Justice Harlan, I don't think there's any question that that's the problem. John M. Harlan II: Yes. I think so, too. Earl Warren: I understood you to say you didn't quarrel with Vitale that you -- Francis B. Burch: I do not quarrel. Earl Warren: -- believe that's perfectly alright; that our decision was alright. Francis B. Burch: I do, sir. Earl Warren: Well, then why do you want us to reexamine it? Francis B. Burch: No. No I -- no, I didn't mean -- not reexamine Vitale. I meant reexamine the implications of Vitale, the questions which were left unanswered. In the very beginning of Vitale -- Earl Warren: Well, that's alright, but I understood you to answer Mr. Justice Harlan that you want us to reexamine these cases and -- Francis B. Burch: Only in the light of how far are we ultimately going to go and where does it put us today. I don't -- I cannot disagree with Vitale. Byron R. White: Well, Mr. Burch -- Earl Warren: Yes. Byron R. White: -- I thought Mr. Justice Harlan when he started out his question to you on the premise that this was a religious exercise and if you start out on that premise, (Inaudible) was whether or not they didn't require a reexamination or clarification. Francis B. Burch: Well, I -- Byron R. White: And I understand you to say if you start with that premise, (Voice Overlap) -- Francis B. Burch: I might say, as -- well, I didn't understand Mr. Justice Harlan's question to be exactly that. I thought he said, “Are we, in effect, not confronted in this case with the question of reexamining the whole area and deciding exactly where we are and where we have to go. This is what I've understood the question and I apologize if I answered the question without completely understanding. Thank you. Earl Warren: Mr. Baker. George W. Baker, Jr.: Mr. Chief Justice, may it please the Court. I would like to comment on the question of the Free Exercise Clause Mr. Justice Stewart asked about. Actually, there are two facets to the First Amendment as it applies to the statute of the Fourteenth Amendment. One is the -- Potter Stewart: Do you concede that both of the provisions of the First Amendment having to do with religion are incorporated in full force in literal terms under the Fourteenth Amendment has restrictions on the states? George W. Baker, Jr.: I think this Court as, by prior decisions, has forced us to -- Potter Stewart: This one as well? George W. Baker, Jr.: -- concede that, yes, sir. Potter Stewart: Well, I just wanted to be sure from what point where you beginning. George W. Baker, Jr.: Yes, sir. We say the -- as Mr. Burch has covered the Establishment Clause, relates to the church state in the relationship and to what extent that may go. The Free Exercise Clause relates to compulsion requiring someone to do something which is contrary to his beliefs. If the Establishment Clause is violated then, of course, the free exercise may be immaterial. If the Establishment Clause is not violated, then we say that the Free Exercise Clause is not violated so long as it is not compulsory. So long as there is a provision under which a person may be excused. Potter Stewart: The difficulty here -- George W. Baker, Jr.: Taking the -- Potter Stewart: Excuse me. If I can just state the outsets, then perhaps you can meet my difficulty. The difficulty I see here is that in the complaint, if that's what you call it in Maryland or the petition, whatever, it's alleged that the -- that this -- that the free exercise of this plaintiff's religion was interfered with and restrained by the operation of this Board of Education rule, and all you have is a demurrer to that which, by its terms, admits these allegations. Now, in the Engel against Vitale, that was not a free exercise case, neither were the other cases which my Brother Harlan has been talking about. George W. Baker, Jr.: Of course -- Potter Stewart: They were establishment cases. But here, you have a clear allegation of the impairment or the interference of the free exercise of this person's belief or religion, if you will, which is admitted by the demurrer. George W. Baker, Jr.: It only admits, if Your Honor please, those matters which are well pleaded and I think that you have to take all of the allegations. I might say this, that in the lower court's opinion, you will notice in the order that Judge Prendergast said that since the plaintiff has said -- the petitioner has said that it could not improve its case by amending the petition, therefore, it is -- the demurrer is sustained without leave to amend but there was that opportunity. Now, if you take a look at this very situation, the rule is set forth which provides for the excuse. Now, this is no different than Barnette. In Barnette, a petitioner said “I am required to pledge allegiance.” This is against my beliefs. Now, this Court didn't strike down the oath of allegiance. All this Court said was that under the Free Exercise Clause, he is entitled to be excused from participation. Torcaso was a similar thing. Torcaso -- this Court didn't say, “No, you can't give an oath of office.” What it did say, “No, you can't require him to take an oath of office in order to be a notary public.” As a matter of fact, Article 1 of the Constitution provides for an oath of office. If this Court please, I was sworn in as a member of this Court. I took an oath. I called upon God to witness the fact that I would uphold the Constitution of the United States and that I would conduct myself properly in this Court. Now, clearly, I think that if I had had any aversion to taking that oath, that I would not have been required to do it. As a matter of fact, you could conceive of a situation where a Justice of this Honorable Court might find that it offends his sensibilities to have to be here when it is said at the beginning of the opening exercises of this Court, “God save the United States and this Honorable Court.” Now, when you say -- and this is one of the arguments that's raised by the petitioner, he says, “Sure, I can walk away. I can be excused but this holds me out as a dissenter and I lose cast and everything else.” That same thing could happen to a Justice of this very Court who might object to the invocation, “God save this Honorable Court.” Suppose he objected to it. He just wouldn't come in while that's being said.Could he then say -- and it would be embarrassing to him, I'm -- I would imagine. At least people would say, “He's different.” But would he have the right to say that this Court cannot have that invocation because it offends his delicate sensibilities? I think the answer to that is quite clear. As long as he has the right to be excused, free exercise is not violated. William J. Brennan, Jr.: May I ask -- George W. Baker, Jr.: He -- William J. Brennan, Jr.: -- Mr. Baker. This is an interruption, I'm sorry. Did I understand you to suggest to Mr. Justice Stewart that the only question here by reason of the allegation for this petition and the demurrer is a free exercise question? George W. Baker, Jr.: No, sir. I said both of them are involved -- William J. Brennan, Jr.: Yes. George W. Baker, Jr.: But that if you -- William J. Brennan, Jr.: But the establishment question is also here. George W. Baker, Jr.: Yes, sir. William J. Brennan, Jr.: -- on these allegations? George W. Baker, Jr.: Yes, sir. But I say, if you get beyond the Establishment Clause, then the only thing -- then that -- if it doesn't violate the Establishment Clause then under the Free Exercise Clause, there's no violation as long as you have a right to be excused. Potter Stewart: Well, as I -- I know that there is that right expressed in the Amendment, the 1960 Amendment to the rules of the School Board, but these allegations, let's say in effect, that's a phony. Actually, we don't. We're not free of compulsion and I should think that this is admitted by your demurrer and this would require a trial to see just what the facts were; what the compulsions were. William J. Brennan, Jr.: Well, it would be a conclusion -- Potter Stewart: Upon an Atheist to conform to this thing. Speaker: No allegation that no one has permitted him to be excused. As a matter of fact, the petition alleges that after a complaint was made, the rule was amended whereby he was permitted to be excused. Now, a -- to say that we are compelled without any facts is really a conclusion of law particularly when you have already set forth a provision in the rule that you can be excused. Now, if there's any abusiveness, if there's any coercion that he can't be excused, then I would certainly think that that would be true, that you would have a different case entirely before this Court. Arthur J. Goldberg: (Inaudible) George W. Baker, Jr.: Yes, sir, and we -- Arthur J. Goldberg: You demurred it? George W. Baker, Jr.: We demurred it and even -- let me say this, that anyone who dissents runs the risk of disapproval. Justice Jackson -- Mr. Justice Jackson in McCollum expressed, I think, the rule there so very well when he said, “It maybe doubted whether the Constitution, which of course protects the right to dissent, can be construed also to protect one from the embarrassment that attends nonconformity whether in religion, politics, behavior, or address.” Mr. Justice Douglas in Zorach, after referring to a similar rule, said that if you didn't -- if you did away with the whole thing that would be preferring those who believe in no religion over those who do believe. Speaker: (Inaudible) Potter Stewart: That had to do with the establ -- excuse me, excuse me. Arthur J. Goldberg: You say assuming this is true, the fact that a pupil is excused satisfies the free religion clause, isn't that (Inaudible) George W. Baker, Jr.: Yes, sir. I would, before concluding my time, like to point out to this Court what the possible consequences of the petitioner's view would lead to. As Mr. Justice Douglas said in Zorach, we are a religious people whose institutions presuppose a Supreme Being. If the Court fails to draw the line at this case, there's not much left. A Pandora's Box of litigation will be opened with inevitable confusion and with the ultimate result that the Court will be required to remove every vestige of our religious traditions from public life. Now, I'm not suggesting that these would all happen immediately, but those who now clamor for getting rid of these opening exercises won't stop if they have a victory here. They would continue.Justice Frank -- Mr. Justice Frankfurter said in dissenting in Barnette, “I am not burrowing trouble by dumb breaking these issues nor am I parading horrible examples of the consequences of this decision, but I'm aware that we must decide the case before us, not some other case. But that does not mean that a case is disassociated from the past and unrelated to the future. We must decide this case with due regard with what went before and no less regard with what may come after.” Hugo L. Black: What do you think could come after if you should win? George W. Baker, Jr.: I think you'd have -- you'd have the question as to the use of coins, “In God we trust.” Hugo L. Black: What do you think would come after it in the reference to the school ceremony? If -- is there any reason why you can have 3 minutes, you couldn't have 40? Any reason if you could have 40, why you couldn't have 6 hours? George W. Baker, Jr.: Well, that -- of course, you go back to -- Hugo L. Black: And why you shouldn't have all of them taken from the sacred books of one religion rather than another? George W. Baker, Jr.: Mr. Justice Black, it's a question of the purpose. As Mr. Burch mentioned -- Hugo L. Black: I understood you were invoking the consequences as to what might happen if the decision remains one way or the other. George W. Baker, Jr.: I think if the decision is made that you can't have this -- as a part of the opening exercises that from there on -- Hugo L. Black: If you could have it in the opening exercises, why can't you continue to have it during the whole day? Why can't you pick out all your religious sacred documents from one particular religion or one particular sect of one religion? George W. Baker, Jr.: Because if there -- that then would be an abuse. The purpose is the same as the implication in this Court, “God save this United States and this Honorable Court.” Hugo L. Black: I've heard that before. George W. Baker, Jr.: It's the same thing with the students. Sir? Hugo L. Black: I've heard that a million times. That's not your argument. George W. Baker, Jr.: Well, but if you went on for an hour with that, it would be the same thing, if Your Honor please. Thank you. Earl Warren: Attorney General Finan. Thomas B. Finan: May it please the Court. I personally want to thank Mr. Burch for giving us a portion of his time to intervene here as amicus curiae and also to thank the Attorneys General of some 18 states of our sister states in the union who have joined with us as amicus curiae. The appendix to our brief also contains a compilation of some-39 sister states who have similar provisions concerning the devotional exercise of some type in public schools. Mr. Chief Justice, a moment ago asked about Hawaii and the appendix there as a reference to the rule in Hawaii which does permit a devotional exercise but forbids the teaching of religion in the public schools. We go along with the city solicitors from Baltimore's contention that this is primarily an exercise within the school to create a climate of wholesomeness, of moral and ethical standard rather than essentially that of religious service. However, we will go further than his contention in that regard. I'll put it this way. We concur insofar as he goes in that. We will go further and state that we feel before this Court, as again, the situation as to whether they should reevaluate this entire position which they have taken, including the position of the Court in the Engel case. We feel this can be distinguished. I disagree with Mr. Burch and I didn't agree with the Court's conclusion in the Engel case but; nonetheless, we feel that this case can be distinguished; however, I do feel that this line of cases are bringing before the Court a question of religion laid bare past its bones to its very essence. I think the Court is forced into the conclusion of two concepts whether it will consider that nontheism should override theism. The opponents in this case, the petitioners have, of their own volition and according to the decision, I think, of the Court particularly in the Torcaso case, have equated nontheism or atheism with a religion which it is entitled to that position under the umbrella of the First Amendment to the Constitution of the United States. Now, assuming that it is, then we have two concepts which are so diametrically imposed it to be neutrally exclusive. And although the petitioner would have us believe that there is a ground of neutralism, there is a vacuum, as it were, which could be maintained in this field so that nobody would be injured, so that nobody's sensibilities would be stepped upon. We assert that that is a fallacy, that once you say that you must remove the idea of theism and for what are -- time to elaborate, let's call this a theistic approach or a theistic climate in the school or to -- when you do away with that you are in effect giving in and surrendering to those who want a nontheistic climate, and that nontheistic climate is in effect, by indirection, giving a facial sanction to their religion, which is nontheism. And I -- Earl Warren: Do we have to decide this case on the basis of theism or nontheism? Aren't there very large religious groups who believe is fervently in a God as those who composed this procedure? Thomas B. Finan: Believe as fervently -- Earl Warren: Were opposed to this case? Thomas B. Finan: Believe as fervently in much, Mr. Justice? Earl Warren: In God? Thomas B. Finan: Yes. Earl Warren: That's a basis of theism, is it not? Aren't there people who were opposed to this, who were just as fervently -- fervent in their belief in God as are those who prescribed this oath and who yet oppose it? Why do we have to make it an issue between Atheism and Christianity? Thomas B. Finan: Well, I don't think it's necessarily of Atheism and Christianity -- Earl Warren: We have briefs amicus curiae in this case. Thomas B. Finan: That is correct, Mr. Chief -- Earl Warren: There's a brief of the Synagogue Council of America and National Community Relations Advisory Council and -- Thomas B. Finan: That is correct, Mr. -- Earl Warren: -- there are some millions of people of that faith in this country so -- Thomas B. Finan: Correct, Mr. Chief Justice -- Earl Warren: They oppose it as fervently as these people who happen to be Atheist -- Thomas B. Finan: Correct. Earl Warren: -- so why do we have to put it in that context? Thomas B. Finan: Theism is broader than Christianity. Earl Warren: I beg your pardon? Thomas B. Finan: You said Atheism as advert to Christianity. My point is theism is broader than Christian -- Earl Warren: Yes. Thomas B. Finan: -- than the concept of Christianity. Earl Warren: But by reading the Lord's Prayer and reading the King James Version of the Bible, we put the Christian concept of theism onto it, do we not? Thomas B. Finan: Well, that is debatable because you can read in the Kaddish which is an ancient book of the Hebrews almost verbatim. In fact, unless someone listens very attentively, they would not know the difference between prayers in the Kaddish from the Lord's Prayer, which goes -- Hugo L. Black: Why not use that one then? Thomas B. Finan: Pardon? Hugo L. Black: Why not use that one then? Thomas B. Finan: I'm sure they would -- further, would be no objection. I would just like to conclude with this regard, my time is running short, if I may. The Court asked Mr. Baker what would be the next thing to go as it were, and I submit that the Barnette case which the Court is familiar was tried in 1943 and that was the Salute to the Flag case up in West Virginia. And as a result of that case, it's been held that -- or at least the construction placed on it is that to pledge allegiance to the flag of the United States can be a part of the ritual in the public schools as long as those who do not wish to take it can be excluded. Now, in 1954, the Congress of the United States inserted in that Pledge of Allegiance the clause, “One Nation under God” and that is what is in the official Pledge of Allegiance to the Flag today. There's been no case since that was inserted, to my knowledge, by the Congress. And I state -- that I cannot see the distinction between a school system and this prevails in practically every Board of Education in the United States requiring a child to -- or at least not requiring the child but proposing that exercise as open in the morning with a salute to the flag of the United States which carries in it the clause, “One Nation under God.” Potter Stewart: Mr. Attorney General -- Thomas B. Finan: Because that is the basic objection to which these people object right now as a recognition of a Supreme Being of what I call theism, I think even the theos would come under the broad term of theism. But, I cannot see any difference between that case and what we have before the Court today because you have the same outlet of freedom from exposure by walking out of the room, and it's true that this is in a more formal style, but it has still the same recognition of a deity which is the basis of their objection rather than anything else and -- Potter Stewart: Mr. Attorney General, let's assume that we agreed that everything was -- everything you said with respect to the Establishment Clause and that's all that was involved in the -- in the Engel versus Vitale, do you say you disagree with that decision, as you -- perhaps, now I did also? But, you have a different case here. You have, here, allegations in a complaint of the interference with the free exercise of this petitioner's religion. That was completely absent in the Engel case, completely. That case involved establishment and only establishment. But here, you have a free exercise allegation which is admitted by the demurrer, and it says -- that which says, in effect, that despite the amendment to the rule of 1960 there are still compulsions upon this person. In Engel against Vitale, it was held by the New York courts that the -- there had to be provision under that system for the complete freedom of compulsion, including freedom from any psychological compulsion. Thomas B. Finan: Mr. Justice, I think the answer to that might be in the proceedings or pleading in practice procedure in Maryland. We assume that all things that are well pleaded or admitted by a demurrer and in that admission, not only are the bare facts as recited in the petitioner's bill of complaint, but you also must take into effect all the exhibits which are filed at the time that the demurrer is likewise filed. And, at that posture of the case, the Board of Education, in its answer were well aware as a part of the exhibits was the provision under Rule 6 that he did not have to stay in the classroom when this was recited, that he could walk out of the classroom. And knowing that that was a part and parcel of the rule, reading that also into the bill of complaint, the answer I think gets around the objection which, if I may, that your -- the -- Mr. Justice have just mentioned. At least that's to my mind is the fact that it's -- it was a demurrable bill of complaint when you read into the bill of complaint this Rule 6 which is a part of the exhibits and was filed with the answer. Potter Stewart: But, its part isn't it of the -- of the complaint, actually.Perhaps not, but I know it's a part of the pleading. Earl Warren: Did your Supreme Court based its decision on that ground? Thomas B. Finan: Your Honor, Justice Horne, who rendered the majority opinion, based it primarily on the grounds -- he mentioned that but based it primarily on the grounds that he placed this exercise in the same category as the exercise which we used to open the Maryland legislature which Congress uses to open the branch of the House in Senate. In fact, they used those specific analogies. Earl Warren: In other words, he treated the merits of the case. Thomas B. Finan: Right. Earl Warren: Yes. Byron R. White: Mr. Attorney General, as I read the complaint, it already contains an allegation that the rule was amended so as to release him from participation of these exercises. And if that -- that allegation that he nevertheless says, that his freedom of his religion has been restrained and that is the allegation which was admitted by the demurrer, even right in the face of his own allegation that he had been released from the exercises. Thomas B. Finan: If you please, Mr. Justice, I don't believe that the two allegations that he has there are consistent. They could be released from it. I have to stay there and he still (Voice Overlap) -- Byron R. White: Well, he makes allegations right on the -- right on this that in spite of his being released from the exercises, that -- Thomas B. Finan: Well, that would not be -- Byron R. White: That he was subjected to some harm and these allegations were admitted. Thomas B. Finan: Well, all well pleaded allegations are admitted, Mr. Justice, and it's our contention that there would be an inconsistency between the allegation where he says that his religion, a right to practice it was interfered with and the fact that he could be excused from the service. Byron R. White: Well, let me ask you one other thing. Do you really see a great deal of difference between the -- as far as it's being a religious exercise or not, between the prayer in Vitale and the prayer here, regardless of its source, I mean, just as it's a kind -- the kind of an occasion it was? Thomas B. Finan: Well, of course, Mr. Justice Black, in the Vitale case said that any prayer, any official prayer composed by a group of officials or sanctioned by the State as an official prayer. Byron R. White: Yes, but that's assuming that it's a pray -- that it's a religious item and you say -- I gather, you join with Baltimore in saying that it wasn't a religious exercise at all. Thomas B. Finan: No, I beg to differ, Mr. Justice. I concur in their -- stating this is not primarily a religious exercise. It is part of our heritage and traditions, but I go further than that and would state that, assuming it is or was a religious exercise, I still feel (Voice Overlap) -- Byron R. White: So you say it wasn't part of a religious exercise. Thomas B. Finan: Right. Byron R. White: And, is it as much of a religious exercise as it was in Vitale? Thomas B. Finan: Yes, I definitely feel -- Byron R. White: There's really no distinction in terms of the kind of an exercise this was between Vitale and this case. Thomas B. Finan: No. I think there -- the two cases can be distinguished -- Byron R. White: Oh, yes, I know (Voice Overlap) -- Thomas B. Finan: -- but I think they're both involved in religious exercise. They're both involved in a religious exercise. In the Vitale case, you had a prayer -- Byron R. White: I understand that. Thomas B. Finan: -- composed. And -- Byron R. White: Of course, -- Thomas B. Finan: -- this -- Byron R. White: -- Vitale -- the Vitale opinion said, “The state drafted or state sanctioned,” didn't it? Thomas B. Finan: I said, “A straight -- State drafted or State sanctioned official prayer.” Now, the question would be, maybe it's tautology to say “official prayer”, again goes back, it means a prayer composed by officials, which was one of the basis that we thought perhaps distinguished it. Byron R. White: But I suppose the School Board's rule here at least sanctioned the use of the King James Version of the Bible. Thomas B. Finan: It sanctioned that, yes. It said -- Or the Douay maybe -- Byron R. White: Or sanctioned the Lord's Prayer. Thomas B. Finan: That is correct. Byron R. White: Yes. Thomas B. Finan: But the question is, these are prayers of tradition. There -- they were never any official prayer of any sect or any group. Potter Stewart: These are clearly sectarian, unlike -- Thomas B. Finan: That's correct. Potter Stewart: -- unlike the prayer in Engel, which is (Inaudible) Thomas B. Finan: That's right, Mr. Justice. That's our situation on it. Byron R. White: There'd be very little sense of excusing anyone from the prayer. It seems to me, if it wasn't -- if somebody didn't have a feeling that it was a sectarian situation or there would be a very little reason talking about the King James Version of the Bible or the Douay Version of the Lord's Prayer. In the rule, if there wasn't some feeling that it was giving others the permission to use the Douay Version if they wanted to. It seems to me in itself, to be a recognition of this -- that has some sectarian aspects to it. Thomas B. Finan: Well, Mr. Justice, I don't think that sectarian the least, I wouldn't agree to that definition as employed by the Court. I feel that we must admit and I freely admit that there was a theistic background in this exercise which is -- which was objectionable to the petitioners. I mention that because I think that perhaps, theism and sectarianism are two different terms. Byron R. White: I agree with you but nevertheless, in the School Board's rule which was promulgated, people were given permission to use different versions of the Bible. Thomas B. Finan: That's right. Well, that comes on the overall theory that was -- that we have in the case says that this was an exercise in which the students primarily indicate their belief in God and His benediction on what they're doing. Byron R. White: So, you're saying -- what you're really suggesting is that the only people who should've -- who ever should've been -- felt any urge to excuse themselves from this operation would be Atheists. Thomas B. Finan: That's right. William J. Brennan, Jr.: Is that the reason, you think, the provisions excused them, had the petitioners in mind to keep (Inaudible) Thomas B. Finan: Your Honor -- Mr. Justice, I would certainly think the petition would indicate that that's the main reason that they object to this. William J. Brennan, Jr.: No, I say, “Those who make the provision for the excuse have only Atheist in mind?” Thomas B. Finan: No, Your Honor, anybody who might have some -- William J. Brennan, Jr.: Perhaps they didn't like the Protestant version or Protestants who didn't like -- Thomas B. Finan: That's right. William J. Brennan, Jr.: -- Douay version. Thomas B. Finan: That's correct. Byron R. White: Schools who didn't like the Holy Bible. Thomas B. Finan: That's correct. I might add that the actual practice of this, as Mr. Burch started to commit -- comment to the Court, the usual practices, it's rotated with each child, each day, they either lead the prayer or read the Bible and they're quite likely there might be some child who might not want to read the Bible. Arthur J. Goldberg: (Inaudible) Thomas B. Finan: Yes. Well, Mr. Justice, on the premise that if the people who composed the School Board in that particular area felt that that expressed the majority wish of the people that those who did not conform to the Mormon faith or who felt that reading of the Mormons -- Book of Mormon was objectable, I'm sure there's many parts of it that practically everybody would subscribe to that they are free to walk out. I think that is the basic element that we have in this case that they are free to excuse themselves. William O. Douglas: Then the big contest would be which church could get -- control the School Board, I suppose. Thomas B. Finan: Mr. Justice, let me state this. Hugo L. Black: (Inaudible) -- are you suggesting -- Thomas B. Finan: I think that -- I doubt very much that there would be any race in that direction because I think, primarily, people feel that if they -- children can have some religious overtones, take children that are in -- what are we going to do with children who are in religious orphanages and our correctional institutions? What -- we go along with completely removing any mention or anybody on the public payroll in any public institution, anything about God. Hugo L. Black: You're suggesting in effect, are you not, the Constitution leaves it open for the States to leave it to local options in each local community as to which particular brand of religion, which kind of religion, will be read and taught in the school. It's kind of a local option. If the majority wants one, they could get it. The others can walk out. Thomas B. Finan: Well, Mr. Justice -- Hugo L. Black: That sounds to me like it was your suggesting a local option. Thomas B. Finan: Mr. Justice, let me state this. I think we can carry any example to an extreme but I certainly feel that, in the common parlance of men, that we all have certain concepts such as, I mentioned, recognized works which recognized a deity, Book of Mormon, the Koran, the Bible. Hugo L. Black: What would you think about its chance about being read in Baltimore? Thomas B. Finan: The what's (Inaudible)? Hugo L. Black: What would you think about the chance of having the Book of Mormon substituted for the King James Version of the Bible in Baltimore? Thomas B. Finan: Mr. Justice (Inaudible) would compel me if there was -- there had to be a choice between the two.He would probably stick to the Bible. But I would say this that the Board of Education of Baltimore City might well go along with the reading of the Koran, the Bible and the Book of Mormon. Hugo L. Black: Do you mean that's theoretically possible? Thomas B. Finan: I would say that -- Mr. Justice, that this rule was written back in 1906. It was amended later to allow an excuse. I feel that the basic thing that people feel today is that we must not set up a fetish against mentioning anything about religion in an exercise in a public school. I think that the public is willing -- Hugo L. Black: I do not understand the other gentlemen to say that they shouldn't mention anything about religion. I understood them to say that it was alright to teach religion as a subject. Their objection is to the fact that you pick out, I may say two things which I've known about from my earliest inferences, which I could agree with you easily, should have a wonderful effect on people who read them and recite them. But, other people don't feel that way. What you have picked out, these two particular things: the Bible, King James Version, and the Lord's Prayer. It's one can hardly mention without reverence, at least I believe as I did. You picked them out and say people must, into this school, either listen to them and participate in or walk out. Now, why can't you do that with reference to the Mormons if they want to where they are the majority, or any other by those people in the Government? Thomas B. Finan: I would concur with the Court and -- Hugo L. Black: That's a local option in determining what -- which particular religion will be taught in each particular community. Thomas B. Finan: No, if it is sincere representation of that area -- Earl Warren: But General, that -- let's take a very practical situation. Again, in Hawaii, where there are a great many Buddhists. Let us say there's a school where there are 51 Buddhist children and 49 Christian children and because of the majority, the Buddhist children is determined by the school to have a Buddhist ceremony comparable to this Christian ceremony that we have here. Would you think because they're in the majority that the 49% of them that are Christians in that school would have to walk out? Thomas B. Finan: They would have the right to and I would -- Earl Warren: And you would -- do you think they would have the right to have such a ceremony as a matter of school law? Thomas B. Finan: Yes, Mr. Justice, because I feel that it is essential that we keep away from a complete secularism in our outlet to this thing. And if the Christians who were there wanted to -- have the right which they would under the Constitution, that is the sacred right as a minority which they would be in that instance would say -- would have, the right to exclude themselves, the right not to be subjected to them. They have that right. I see no reason why you cannot reconcile and why it is not compatible to -- under our Constitution to permit such a practice. Hugo L. Black: Would you be willing to say if the State should go further in that instance and release all of them from paying any part of taxes that went into support of the school? Thomas B. Finan: Well, they would still be educated by the school. Hugo L. Black: Not if they will -- but they would walk out that they didn't want that part at all. Thomas B. Finan: Well, if they'd only walk out for that portion -- Hugo L. Black: Could they be release from taxes to carry out these views if the majority wanted, which they didn't want? Thomas B. Finan: My children had never gone to the public schools and I'm not released from taxes. So, I don't think they should be released from taxes. Hugo L. Black: But they've -- they have not gone there through choice. Thomas B. Finan: Pardon? Hugo L. Black: They have not gone there through choice. The public schools were open to your children. Thomas B. Finan: Well, you would exclude yourself -- Hugo L. Black: But they were open to your children. Thomas B. Finan: That's right. I don't -- I might just say this, if I may, in conclusion and that is that, as I understand the fact that the petitioners would allow the Bible to be read as a work of literature or as a work of ancient religion. And our basic documents such as the Declaration of Independence to be read as a paper of state, yet our -- if I understand that theory correctly, they would still object if we would dwell upon the Declaration of Independence and its all men being created under God and so forth, but the implication of a creator, if we were to read that as a source of inspiration to awaken in us a spurs of belief that we're one nation under God, then that paper in itself would be objectionable only if it's looked upon as an abstract pure state paper, the same way with the Bible as a piece of literature or ancient history. Earl Warren: Mr. Kerpelman. Leonard J. Kerpelman: Mr. Chief Justice. Your Honors. William O. Douglas: Would your argument be the same if a Quaker pattern was followed in the -- all students' request to remain silent for a minute or two minutes or three minutes? Leonard J. Kerpelman: Your Honor, a question which is perhaps involved is a question of standing. Now, as I understand it, standing -- William O. Douglas: That wasn't my question. Leonard J. Kerpelman: Well, I was going to say this, Your Honor. The Quaker ceremony would, it seems to me, be constitutional because it could -- I don't see how it could possibly cause anyone any detriment. He does not have to stand up and profess a belief or disbelief in any religion. Potter Stewart: Your client could stand there and think about his disbelief in God. Leonard J. Kerpelman: Yes, he could, Mr. Stewart -- William O. Douglas: Yes. Leonard J. Kerpelman: -- Mr. Justice. And, I do not think that that would be unconstitutional. I've gone to the question of standing, perhaps it's unnecessary but let me -- Arthur J. Goldberg: If it were labeled the Quaker ceremony, would it be unconstitutional? Leonard J. Kerpelman: If it were labeled the Quaker ceremony, it would be clearly unconstitutional, Mr. Justice Goldberg. I understood the question pleaded. We had this Quaker type of ceremony, not denominated as any such thing. McGowan, I had thought indicated that if an establishment of religion is made by the State and then some person suffers economic detriment, he would have standing to come into Court and complain. I thought it also held that if the Sabbath observance law interfered with the free exercise of religion, it didn't serve a circular -- a secular purpose primarily, he could come in and complain. That was my understanding of it. I understood that the question of whether it was the Establishment Clause or the Free Exercise Clause goes mainly to the question of standing, and that was the reason that I was contending, Your Honors please, that both clauses apply to my client. The establishment has been made. It has caused him detriment. He has standing to complain. Also, his free exercise of religion has been interfered with. Your Honors had opposed the question of, I think, of Mr. Justice Harlan, whether or not a reevaluation of the cases on this particular point was perhaps called for. Well, if Your Honors please, as a practicing member of the Bar of this Court and of my state court, I'm very proud of the line of cases as they now stand. I think that what is more needed -- what there is more of a need for is a reevaluation of the ethical and democratic principles which these cases set forth. I think there's more of a need for charity and love on the part of the people who are in the majority and who have, probably unknowing to themselves, been offending the minority. The democratic thing for them to do, the ethical thing to do, the religious thing for them to do is clearly to not make such a bone of contention of this case. After all, they're overlooking the fact -- Potter Stewart: You're getting somewhat outside the Constitution. Leonard J. Kerpelman: So I am, Mr. Justice. I'm sorry. But the case of course, is a case which it so happens, effects everyone by a small modicum, and therefore, there's a lot of interest in this case, and therefore, a lot of people who are not professionally learned in the law, had misconstrued the precedence to this case. And they go outside the Constitution in their discomfort with the line of precedence up to this time. I feel that if they understood what this case on behalf of the petitioners does not say that they would not be so alarmed and upset. I would like to speak for a moment on the question of the demurrer which was filed in this case and whether it admits the allegations, and I want to do that simply by referring to page 45 of the record which is the minority opinion, page 45, of the Maryland Court of Appeals and that was a 4 to 3 decision. The minority is the only one they treated of this question as to whether the allegations were in truth, admitted by the demurer under Maryland rules of pleading. They said, as to the first of these questions, it seems to me that under our ordinary rules of pleading the allegations of the petition are not so insubstantial as to be brushed aside as mere conclusions of the pleader and that they are sufficient on demurrer. In that same paragraph, incidentally -- Potter Stewart: What page? Leonard J. Kerpelman: 45, Mr. Justice. Potter Stewart: Thank you. Leonard J. Kerpelman: Second paragraph. In that same paragraph, the next sentence in that paragraph states that -- something to the effect that Brown versus Board of Education recognized the psychological effects on children when they are subjected to segregation. I had the privileges as many of us have, of attending the public schools and I really mean the privilege as a member of minority group. It -- I feel has done things for my character, but I'm sure that the psychiatrist got me on with this couch, he tell me that he had also done things to his psyche. Some of the things involved in this case are very subtle psychological matters. For example, I have a young daughter and she comes home from school and due to the conduct of this Maryland ceremony, she has the belief that Jesus is the Son of God. It so happens that I would prefer she did not have that belief. It doesn't worry me too much.She'll get over it. She will have her Sunday school training, but I would be much happier if the schools would refrain from this particular ceremony. Many people feel that way. The point is that William Murray represents Catholics perhaps, in a Protestant area where the Catholics find the Douay Version of the -- King James Version of the Bible offensive. William Murray, the petitioner, represents Protestants in a Catholic area where perhaps, the Catholics decide to use the Douay Version of the Bible. William Murray represents humanists who have filed an amicus brief here. He represents minority groups of numerous sorts. The Synagogue Council of America has filed an amicus brief on behalf of members of the Jewish faith. John M. Harlan II: How many -- I think I remember a figure (Inaudible) of this religious sect (Inaudible) Is that the (Inaudible) right? Leonard J. Kerpelman: I can't recall that thing, Your Honor. It was mentioned in a case of this Court. I can't recall it. John M. Harlan II: I think we had it at the time -- Leonard J. Kerpelman: 267, which was the first. John M. Harlan II: 267, something to that order. Leonard J. Kerpelman: Yes. And the majority likes to go along thinking that they're only doing what's best for everybody. They overlooked the fact that because they are the majority, the minority is there long-suffering and quiet and it's only when William Murray comes along that this thing raises its head, and the fact that the case was brought by an Atheist, which is perhaps a very small sect in this country does not mean that there are not other groups as evidenced by the amicus briefs, who feel the same way. Arthur J. Goldberg: Its part of this exercise (Inaudible) Leonard J. Kerpelman: Your Honor, I have been a teacher in the Baltimore public schools for about six years while I was going to law school and I've also been a student in the public schools. That's not usually done. What we had done in -- as a matter of fact, was that either the teacher or a student would lead the class in reciting in unison the Lord's Prayer and then reading a section from the Bible. Most teachers will either pick a section of the Bible, which I did myself when I was teaching, or they would allow a child to do so invariably and the Bibles which were provided for us were the King James Bible. Invariably, in my experience, I've only seen the King James Bible used. I've only seen the King James Bible Version of the Lord's Prayer used. Whether it's used anywhere else, I don't know, but I've never seen -- Arthur J. Goldberg: (Inaudible) Leonard J. Kerpelman: Well, it's pretty strongly a religious verse, “Thus be it ever when free men shall stand”, is that the verse, Your Honor? The -- it's my favorite verse, it so happens. It certainly has a highly theistic significance. I suppose that they would object to having its song as a ceremony set forth by the school and it seems to me that they would be in good constitutional ground. Potter Stewart: If you're right about the -- about this case in the establishment -- Leonard J. Kerpelman: Yes, Your Honor. Potter Stewart: -- phase of it -- Leonard J. Kerpelman: Well, that -- Potter Stewart: -- then I would agree with you. Leonard J. Kerpelman: Yes, Your Honor. Thank you. Potter Stewart: But, assume you're -- assume one should disagree with your position that these rules of the School Board violate the Establishment Clause of the First Amendment as incorporated in the Fourteenth, but should agree that on the allegations of your complaint these rules do violate, in your client's case, the Free Exercise Clause. I suppose what would be in order would be a remand for a trial, wouldn't it, to see just what compulsions there are, psychological or otherwise -- Leonard J. Kerpelman: Yes, Your Honor. We had no difficulty -- Potter Stewart: -- to conform. Leonard J. Kerpelman: -- whatever improving them. The demurrer -- Potter Stewart: Well, that's not up to us -- Leonard J. Kerpelman: Yes. Potter Stewart: -- where the -- whether -- Leonard J. Kerpelman: Yes, Mr. Justice. Potter Stewart: -- it should be difficult or easy for you to prove them or from the other side to disprove them. Leonard J. Kerpelman: Yes. Potter Stewart: But that would be the appropriate thing to do, would it not? Leonard J. Kerpelman: Yes, Your Honor, but then, to quote a sage, we would have to win their weary way back here again probably after the case was heard. It was fortunate for us that the case was heard on demurrer. It saved us a great deal of expense in printing up the record. But the case, I am quite sure, would be no different in its aspect. Arthur J. Goldberg: Aren't you arguing the law as to this (Inaudible) you're indicating that de minimis rule and, if we agree, you can still contest the religious contemplation that provided free exercise or the Establishment Clause would be involved? Leonard J. Kerpelman: I can't go along with that, if Your Honor please, because here is a prayer which is taken -- Arthur J. Goldberg: No, no. I understand it, but I (Inaudible) the question I put to you about the National Anthem. Leonard J. Kerpelman: Oh, yes, Your Honor, yes. Arthur J. Goldberg: The song. Leonard J. Kerpelman: Yes, I think we would have new standing if we had no detriment, but we definitely have suffered a detriment. Potter Stewart: What's your detriment, speaking purely now of the Establishment Clause? What is your detriment? Leonard J. Kerpelman: A religion has been established and as a result of the establishment of that religion, my client has been treated with aversion -- Potter Stewart: Well, now, you're getting into something else, aren't you? Leonard J. Kerpelman: I beg your pardon. Am I, Your Honor? Potter Stewart: Well, I'm just asking you. The Establishment Clause itself, what -- how did -- what detriment is there? In other words (Voice Overlap) -- Leonard J. Kerpelman: Well Your Honor, we contend. Now, I may be entirely wrong on my -- Potter Stewart: I'm not talking about standing, in other words. Leonard J. Kerpelman: Well, it seems to me that the -- that if this prayer is a sectarian prayer then it's an establishment of religion. Potter Stewart: Yes. And how does that in -- in and of itself, cause a detriment to your client? Leonard J. Kerpelman: It cause a detriment -- causes a detriment to my client by having him singled out and denominated as one who's -- does not believe in this particular religion. Potter Stewart: Well, that -- because it interferes with his free exercise. Leonard J. Kerpelman: No, because he doesn't believe in it. Potter Stewart: Well, then, what -- then how does it -- well, how is it a detriment, as a taxpayer? Leonard J. Kerpelman: We don't contend that a -- the detriment is as a taxpayer. Now, we've been rather stubborn about that. I think that support of the schools doesn't consist in six cents added to the tax rate, it consists in trust, in confidence, in the feeling that you can send your children to the schools and they'll get the education you want. They won't have dogmas thrust upon them. We don't feel that that is -- we certainly have not alleged or shown any increase in the tax rate, from the supplying of the King James Bible and the time it takes, the detriment or the psychological effects, the young William Murray who has been abused because of his belief. Potter Stewart: And this -- then -- Leonard J. Kerpelman: If -- Potter Stewart: -- you get back to the free exercise. Leonard J. Kerpelman: Well, I don't understand it, Your Honor. If the establishment of religion had not been made, he would not have been abused. Potter Stewart: Well, wouldn't you agree with this? That under the Constitution, it would -- no state could -- and no city, no county could establish a church even though 100% of the population in that political unit wanted to do it and there were no non-conformers. They all wanted to do it. Still, it would be unconstitutional, wouldn't it? Leonard J. Kerpelman: It would be unconstitutional, but who would have standing to challenge it? Potter Stewart: Well, that's what I'm -- Leonard J. Kerpelman: Yes. Potter Stewart: -- that's my question. Leonard J. Kerpelman: Well, no one would have standing to challenge it if they -- if there were no members of any minority. But with these 267 sects in the United States, we -- Potter Stewart: Whether without -- whether without dissenters, it's absolutely constitutionally invalid for a county, assuming that county were 100% Methodist, all of them wanted an official Methodist church and established one in Smith County, Maryland or X-County, New Jersey, that would be completely invalid constitutionally, wouldn't it? Leonard J. Kerpelman: Yes, Your Honor. They'd have a suburb -- John M. Harlan II: How did you accept the local option argument? Leonard J. Kerpelman: No, I do not accept it. I'd say it would be unconstitutional and if one nonbeliever came into the county and started a case, I think he'd have a constitutional right to have the ceremonies halted. Arthur J. Goldberg: The Constitution establishes the definition. Leonard J. Kerpelman: The Constitution established that. Potter Stewart: Well, now, what was -- wouldn't he have to sue as a taxpayer or -- Leonard J. Kerpelman: I don't feel -- Potter Stewart: What would be his detriment if he came to that (Voice Overlap) -- Leonard J. Kerpelman: Well, there's been that language in the cases, Your Honor. It -- and it grates on me every time I read them, but it's probably the law. I don't think that the increment in taxes. It's like the Farthingworth versus Mellon that -- was that the case decided that there was such an insubstantial increase in federal income tax the taxpayer couldn't object to grant an aid to a state. I feel that our constitutional rights are worth a little bit more than a six cents increase. Potter Stewart: What right would he be asserting? Now, let's assume my imaginary case of a -- Leonard J. Kerpelman: Yes. Potter Stewart: -- 100% Methodist and they set up an official Methodist church. Leonard J. Kerpelman: Yes, sir. Potter Stewart: In this county, this imaginary county in an imaginary state. Leonard J. Kerpelman: Yes, Your Honor. Potter Stewart: In this nation. And then, an Atheist moves into the county and he continues his beliefs. He doesn't go to church. He doesn't go near it. What is his standing to object to that Leonard J. Kerpelman: I think it would depend on the temper of the county. Now, if he went to school and this was a perfectly ethical county and no one sneered at him and no one rebuked him and no one cast aspersions on his lack of belief, he would not be able to come into Court. He could show no detriment. But if it were otherwise, then I think that he could require that the Constitution be brought to his aid, one person in a county. Potter Stewart: Well, because his freedom was being ex -- interfered with, but until or unless that happens, he has no standing except perhaps as the taxpayer, does he? John M. Harlan II: But your (Voice Overlap) -- Leonard J. Kerpelman: I would -- yes, I think the language in McGowan went that way, Your Honor; that economic detriment in that case was -- of course that was an economic situation where people were contending that because they had to close on Sunday they couldn't make money on Saturday or vice versa, I forget. But, the Court did speak in that case in terms of economic detriment as to the Establishment Clause. Hugo L. Black: I don't see that we have much personal standing here but I do not quite know with you when you say the man has to be a nonbeliever in order to have standing. Leonard J. Kerpelman: Oh, I absolutely did not intend to say that, Your Honor. I -- Hugo L. Black: The Lord's Prayer comes from the sixth chapter of Matthew. Leonard J. Kerpelman: Yes. Hugo L. Black: There are many people who devoutly believe admonition in that chapter that they should not pray in public. Leonard J. Kerpelman: Yes, sir. Hugo L. Black: Even though they are earnest, devout, God-fearing Christians. Leonard J. Kerpelman: Yes, sir. Hugo L. Black: Because that chapter, three verses before the Lord's Prayer begins, advises not to pray as the hypocrites do in public. Go into your closet. There, pray. May God -- if God hears you in secret, will answer you in secret. Why would not a man have a right? I found that this is a very strong belief throughout the country in the last year that these people should not be made to pray in public even some of the most earnest Christians. Why should they not have a right to challenge it? Leonard J. Kerpelman: Thank you Your Honor.

Warren E. Burger: We'll hear arguments next in Number 544, Commissioner of Internal Revenue against Lincoln Savings and Loan. Excuse me, I'm one case off. We'll hear arguments in Number 362, McGee against the United States. Mr. Levine. Alan H. Levine: Mr. Chief Justice and may it please the Court. This case is before you on writ of certiorari to the Second Circuit. The petitioner seeks to review of convictions on four counts under the Military Selective Service Act of 1967. The chief question presented by this petition is the question left open in McKart versus United States. It presents the pure question of whether where a registrant presents a claim for conscious objection and that claim is denied without a basis in fact as the Second Circuit concedes here it was so denied, and where therefore, the classification -- I-A classification and the induction order were illegal, is he barred from challenging that classification and induction order in judicial review. In answering that question, no, we will assert two basic propositions. One that the exhaustion of administrative remedies doctrine is inappropriately applied, whereas McKart suggested, its effect is not merely to delay judicial review, but is to deny it completely and we will defend, secondly, the proposition that if the exhaustion of administrative remedies is to be applied so harshly. It must be applied with congressional mandate in that the Military Selective Service Act of 1967 to the contrary, does not limit judicial review in defense to a criminal prosecution, but in fact guarantees judicial review in defense to a criminal prosecution. Petitioner, at the time of induction was a full time student at Union Theological Seminary. He had registered for the draft in August of 1961 in New York City. He had advised his local board at that time that he was preparing for the ministry. In August of 1964, he enrolled in the University of Rochester the next month was a given a II-S deferment for all practical purposes kept that deferment until September of 1967. In February 1966 while still at the University of Rochester and still possessing at II-S classification, he applied for conscientious objector status. Pursuant to regulations, the local board deferred consideration of that application until he was no longer entitled to a lower classification. In March of 1966, he got a letter from the local board to that effect that they would defer consideration of CO application. In April of 1967, still at Rochester, still possessing a II-S, the petitioner wrote the President of the United States. He enclosed in that letter remnants of a torn and burnt draft card. Warren E. Burger: Was he convicted of some criminal act in connection with that draft card? Alan H. Levine: It was not nor was he indicted in indictments under review here. Subsequent to the trial in this case, he was indicted on two counts of destroying a draft card. Those cases have not come to trial, Your Honor. Warren E. Burger: And that question isn't before us at all? Alan H. Levine: It is not Your Honor. He wrote to President in April 1967. He advised the President that he would probably be entitled to a theological deferment. Nevertheless, he said, “I must sever every link with violence and war.” He expressed, “the fundamental belief that man must build and not destroy, love and not hate.” As a result, he said that he could no longer cooperate with the Selective Service system. In June of 1967, upon his graduation from Rochester, he was sent a current information questionnaire, SSS Form 127. He returned that questionnaire unopened and said that he would return all future correspondence unopened. In September of 1967, he was classified I-A despite his pending CO application. He returned that I-A classification card. Potter Stewart: Now, that CO application that you just characterized as pending is one that been filed when he was student at University of Rochester? Alan H. Levine: That's right in March of 1966. This is -- Potter Stewart: Three years or three-and-a-half years earlier? Alan H. Levine: No. No, this is September 1967 that I'm talking about. Potter Stewart: That's year-and-a-half? Alan H. Levine: Right. Potter Stewart: Okay. At that time, the board had indicated that since he was -- had a II-S student deferment, there was no need for them to consider the CO application? Alan H. Levine: In March of 1966. The board chairman testified at trial somewhat ambiguously and it is a result of his testimony as to what the board did in March 1966 and September 1967 that led Judge Feinberg to conclude that in fact the board had never considered the application on its merits. That in September 1967, according to the board chairman's testimony, they had just reaffirmed their earlier decision. Byron R. White: But why did this happen against the (Inaudible)? Alan H. Levine: Presumably because they were aware from his earlier request for II-S that he was going to graduate in June of 1967. Byron R. White: He has his father with that form, there would have been place on to talk about his current status? Potter Stewart: It was a current information form. Alan H. Levine: It was a current information form and -- Byron R. White: And what status he was claiming or? Alan H. Levine: Well, the board had before his claim as to conscientious objection. Byron R. White: (Inaudible) Alan H. Levine: It was a year and a couple of months before that that's correct Your Honor. Byron R. White: If he had answered it, he would have been automatically claim a CO? Alan H. Levine: Well, if he had told the board at that time that he was no longer entitled to II-S, presumably in the course of normal procedures, the board would have considered his CO application at that time. This current information questionnaire does not contain reference to conscientious objection. He would have advised them I've graduated, I'm entitled -- I'm no longer entitled to II-S and therefore, the board would have seen in his file that he had a pending CO application. Presumably, according to the board chairman's somewhat ambiguous testimony that is what they did in September of 1967. They considered his entire file and to CO application. As I said Judge Feinberg thinks that they did not consider his application on the merits at all. The trial judge, however, found as a matter of fact at the close of trial that the application had been considered. Byron R. White: And rejected. Alan H. Levine: Pardon? And rejected, that's correct. Petitioner did not appeal that classification. Later that month, he enrolled in Union Theological Seminary. In October of 1967, he was ordered to report -- Potter Stewart: And he did -- he received his I-A classification i.e. he did not send it back unopened? Alan H. Levine: He did send it back unopened, Your Honor. Potter Stewart: So, he didn't even know that he have been classified I-A, is that -- before that? Alan H. Levine: Presumably, he did not. He sent back the I-A unopened, later that month enrolled in Union Theological Seminary. In October of 1967, he was sent an order to report for physical examination, he returned that order unopened. He was ordered to report for induction in January of 1968, he filled out a number of forms giving a variety of different kinds of information at that time. He took a complete physical examination -- Potter Stewart: So he did open that envelop? Alan H. Levine: Pardon? Potter Stewart: So he did open that envelop -- Alan H. Levine: He did open that envelop. He reported as ordered to report. He gave the required information. He took the required physical examination, passed the physical examination and refuse to submit to induction. Potter Stewart: Now, that was a physical examination given at the -- by Selective Service or by the Military? Alan H. Levine: It's given by the military for selective service. It's given at the arm forces entrance examination. Potter Stewart: But at the time of induction or quite awhile before? Alan H. Levine: No, this was at the time of induction. His file was then forwarded to the United States' attorney significantly with a recommendation of Selective Service that he be indicted only on two counts, refusal of induction and failure to possess his notice of classification. Potter Stewart: Is there any indication why he changed his mind regarding how he would deal with mail address to him by his draft board? Alan H. Levine: Why he opened the -- Potter Stewart: He sent several of them back including his I-A classification, you said back unopened and then when there arrived other communication, one asking him -- one directing him to report for a physical examination he not only opened the communication, but complied with it in part. Is there any indication of why? Alan H. Levine: Not from the record, Your Honor. I did not represent petitioner at that time. Perhaps he spoke to legal counsel at that time. I do not know and the record does not indicate. Despite the recommendation of Selective Service that he be prosecuted on two counts, in February of 1968, the Government sought and obtained a four-count indictment. The first count was the refusal of induction; the second, was for refusal to take the physical examination; the third, was the failure to possess the notice of classification and the fourth, for failure to submit the information requested on the classification from. William J. Brennan, Jr.: Incidentally, these notices of classification and to report for a physical, are they sealed envelops or are they post envelops? Alan H. Levine: They are generally envelops, I believe Your Honor. Petitioner was found guilty in January of 1969 on all four counts and sentenced to two-year concurrent sentences on each count. In March of 1970, the Second Circuit upheld the convictions, Judge Feinberg dissenting. The three judges in the Second Circuit conceded that there was no basis in fact for the board to deny petitioner's conscientious objector claim. Nevertheless, they said that because he failed to exhaust his appeal remedies within Selective Service, they would decline to review the classification. We point out first that the 1967 Military Selective Service Act of 1967 provides for review of classification “as a defense to a criminal prosecution.” It does not qualify that right. It does not condition it on exhausting administrative remedies. It says rather that it can be raised and review can be had after a registrant has responded to an order to report for induction. It's important to note Your Honors that the Congress had before it the entire question of judicial review. It is not an inadvertence that this aspect of judicial review is stated as it is. They had it before it. They considered the question of judicial review and limited only pre-induction review. The question before this Court in Oestereich as a Senate Arm Services Committee said, “If the registrant does not submit to induction, he may raise as a defense to a criminal prosecution the issue of the legality of the classification.” The effect of that Act is to guarantee judicial review in a criminal prosecution. The Second Circuit conceded that petitioner was unlawfully classified. Implicitly, it conceded that he was sent to jail for two years or it has been ordered to jail two years for violating an illegal order. Potter Stewart: The Court of Appeals' theory that concession as you call it that your plan have been erroneously classified was based on his conscientious objector claim or other than on his attendance at a Theological school as I understand, right? Alan H. Levine: That is correct, they deal with that claim and I will touch on it briefly, but the major issue and the issue upon which Judge Feinberg relied in dissent was the conscientious objector issue. Potter Stewart: What then -- well, I suppose -- there's some question I suppose about whether his mere attendance in the Union Theological Seminary was sufficient. It's not sufficient under the law, not mere attendance at the Theological Seminary, isn't he? Alan H. Levine: Well, let me say briefly, Your Honor, that the congressional mandate for ministerial deferments under 6-G is I say -- Potter Stewart: The school deferments? Alan H. Levine: That's right, is mandatory. He shall be deferred assuming he meets certain qualification. That's full time attendance under the direction of a recognized church. Potter Stewart: And studying to become a priest. Alan H. Levine: That is correct. Now, McGee presented not directly to his board, but it can be inferred from the record that the board had notice, the fact that he was attending Union Theological Seminary. He did not request the deferment. Some cases have suggested that it's not necessary. We point out the difference between the language of 6-G, the language providing for student-deferments which requires an affirmative request by the registrant. The language of 6-G is -- shall be deferred. The Second Circuit -- Potter Stewart: Well, not for mere attendance though. I thought you and I agreed. We can assume a man who would just likes to go around philosophically and has plenty of time and money so he goes to various theological schools in order to increase his knowledge about comparative religion, has no intent ever become a minister of the gospel or a pastoral leader, but simply wants to increase his intellectual, philosophical and religious knowledge. That man would be subject to statutory deferment, would he? Alan H. Levine: Absolutely, not Your Honor. Potter Stewart: And so far as the record shows that was the purpose of this fellow and your client excuse me in attending -- I mean so far as the record shows, we don't know that this was his purpose. Alan H. Levine: Well, the trial court found that he was in full time attendance and that he was pursuing a degree leading to study for the priesthood. What the trial court did not find is that he was there under the direction of a recognized church since the Union Theological Seminary is not itself under the direction of a church. It's non-sectarian. There was no evidence according to the trial judge in the record that he was there under the direction of a recognized church. Potter Stewart: And that's the statutory requirement? Alan H. Levine: That is a statutory requirement. Potter Stewart: That's a statutory exemption that's necessary. Alan H. Levine: That's right. Now, we do suggest in our brief that Selective Service procedures under such circumstances authorize a board to look into the basis for a deferment and in fact, mandate that they do so when they had certain preliminary information. The major point to which I would like to address myself on exhaustion question is that, it is a doctrine of judicial convenience to be applied flexibly that has its origin in affirmative litigation where a plaintiff comes in seeking relief and there are still administrative remedies to be exhausted. Its -- Professor Davis tells us it is a doctrine concerned with the timing of judicial review and that it is not imposed with absolutely and completely deny relief as it would here. And even when used in affirmative litigation, there are recognized exceptions, so that it will not be applied too harshly. We point in our brief to Justice Frankfurter's opinion in the Public Utilities Commission versus United Fuel case, where it would in effect impose irreparable injury on a litigant. That is a recognized exception to the exhaustion role and that is an exception which we urge would apply here. Byron R. White: You would take the same position I take it if he had never presented his CO claim at all? Alan H. Levine: No, we do not and we make a distinction in our brief -- Byron R. White: Why? Why not? Alan H. Levine: Because I believe the Act requires minimally primary jurisdiction of the local board. We urge the distinction as does Davis in his treaty between primary jurisdiction and exhaustion. You're entitled to review of your classification. If your classification is supported -- is not supported by any fact then a Court could not properly go into anything that was not before the local board. McGee here by concession of the Second Circuit did present to the local board what was necessary to support his classification. We don't quarrel with the fact that he has the burden of proving his classification. We only say here that he met that burden. Byron R. White: But you do say that he had prove to his draft board too? Alan H. Levine: That's correct and we suggest here that he did prove that to them. Byron R. White: But he didn't have to prove to some appellate board? Alan H. Levine: That's right that he is entitled in court to judicial review of his classification. His classification was determined by the local board and was determined here without a basis in fact. The effect of the application of the exhaustion rule in this case and in criminal cases generally is to work a very substantial denial of a right in a criminal prosecution. The difference between the application of that rule in an affirmative and defense of case was elaborated on by Chief Judge McGruder in two cases cited in our brief, the Smith and McCrellis case and there, the judge said that, we do not have to apply the exhaustion rule in the defensive context. It is a judge made rule and we only have to when it is mandated by Congress and the Court there dealt with the two major precedents in this Court upon which exhaustion has been premised, namely Yerkes and Myers versus Bethlehem Shipbuilding. And the Court there said, “Those were specifically cases in which Congress had mandated the exhaustion prior to judicial review.” Here as we said before, there was congressional mandate to that effect and in fact, the congressional mandate is to the contrary that it authorizes judicial review. That brings us to McKart. McKart, we submit, reflects that general suspicion of the exhaustion remedy. It draws the distinctions between affirmative and defensive context. It points out that in a defensive context, it is an exceedingly harsh doctrine and it should be imposed there only where it clearly out ways the interests of the registrant in having a right to assert a defense to a criminal prosecution. The major interest to be served here is whether or not other registrants are going to be led by the relaxation of the exhaustion rule in this case to forgo their administrative remedies and come into court in defense of a criminal prosecution. The McKart, court suggested that maybe there's a difference between the legal issue presented there in the CO claim. The CO claim we submit is a legal issue. You take as the court does in any basis in fact case before it, an undisputed set of facts and apply them to a legal standard. It is the same issue which confronts this Court whether or not there is exhaustion, there is no different burden. The question then is are other registrants going to do what McGee did. Recognizing as we must that what McGee did, he did for out of reasons of moral scruples, but will other registrants do it for tactical reasons and the Government's response to this is crucial and I think deserves special attention. The Government says, “If we let McGee decline to appear before his local board as he did here, decline to appeal his administrative remedies, then the well counseled registrant is going to submit a bare Form 150, will provide on its face no basis in fact for denial. It will not have a great deal of documentation. It will simply be the Form 150.” Potter Stewart: The Form 150 is the conscientious objectors form? Alan H. Levine: It is Your Honor, right. At that point, he will be classified, presumably, I-A by his board, told that he has a right to a personal appearance not that he must personally appear, McGee was not told, he must personally appear, only that he had right to appear, refuse to appear, told that he has a right to appeal and refuse to appeal, he will then refuse induction and have perfect defense before the Court. There will be no basis in fact upon which a Court could uphold the I-A classification. We suggest to couple of things; one, McGee didn't just make out of prima facie case before his local board -- Potter Stewart: I am just thinking in your hypothetical case there will be plenty of bases of in fact to support a I-A classification, if the man had not submitted anything to support a conscientious objector -- Alan H. Levine: Well, the Government's thesis is that he would simply submit a Form 150 perhaps with supporting letters if they could be obtained. Of course, there one has to assume perhaps certain impropriety in obtaining those letters if it was not bona fide claim, but the Government's thesis in any case is as bare a submission as possible and -- Potter Stewart: Then that wouldn't, if the submission was at that minimal materials submitted with it, there would be plenty of basis in fact for I-A classification, wouldn't he, if there wasn't enough to support a conscientious objector classification? Alan H. Levine: I submit there would be and we submit in our brief that there would be substantial basis, in fact, for denying his claim and if the Form 150 was considered by the board to be inadequate, it left them in doubt, we have a pretty well stated claim here but we want to see him to test his sincerity. The remedy is simple, we are attach in our reply brief, New York City Form 44 which says, call in the registrant and there is a space there for the local board to check off, send it to a registrant, and say, you are ordered to appear before the local board to discuss your claim. That is the simple remedy available to the board in cases where they find themselves in doubt. If they are not in doubt, their obligation is to classify I-O. They can't simply have vague doubt. Dickinson, Witmer teach us that there must be affirmative evidence. Now, it might be affirmative evidence that he fails to present a clear and accurate picture and if the board has doubts as I suggest, he can be called in. Warren E. Burger: Well, are you suggesting board has an obligation to call him in, before they rule if he has submitted all the material which he wishes to submit? Alan H. Levine: No, we suggest that under current Selective Service procedures, the board has put it self or the system has put itself in the position of classifying without a personal appearance. The sequence is that you submit your claim, you are classified, then you have your right to personal appearance. Now, if that's the way the Selective System -- Selective Services System wants to classify, they can and when you submit your Form 150, if it's a good claim, they're obliged to give you your classification. If it is inadequate claim, then either you have not met your burden of proving your entitlement to the claim and the board then is obliged to state its reasons why you have not met your claim or if the board then is left in doubt, then since the registrants has made out his prima facie case, it's up to the board then to find some affirmative evidence and that if it needs a personal appearance then it can order that personal appearance. Warren E. Burger: I lost Mr. Levine to understand the point that I thought you were going at but a well counseled registrant could play games with the board. Alan H. Levine: That's the Government's point. Warren E. Burger: Oh, you are merely referring to the Government's point? Alan H. Levine: I'm sorry Your Honor. That is the major response to which the Government had advance us to our suggestion that registrants will not look at this Court's decision in McGee, assuming it's favorable to McGee and say, “hey, there's a good out force, we'll simply fail to appear, fail to exhaust and defend in a criminal prosecution.” We submit that the best way still to get a classification is to go through the Selective Service System and that the only people who don't and if one looks through the exhaustion cases the only ones who don't are the very rare people like McGee and there seems to have been in the reported cases only one other, conscientiously disassociated themselves from the system or those who are ignorant. Warren E. Burger: We'll resume after lunch counsel. Alan H. Levine: Thank you. Warren E. Burger: Mr. Levine, you have three minutes remaining, you wish to use it now? Alan H. Levine: I will try to be brief in saving a minute or two for rebuttal if I may. Mr. Justice White asked prior to the luncheon break. What was the statutory requirement for the claim initially to be presented to the local board? I've quote from Section 10 (b) (3) of the Act, which says that a local board “shall hear and determine all questions or claims with respect to inclusion for or exemption or deferment from training and service under this title.” I think pursuant to that requirement, the registrant has the burden of going forward with his claim to the local board. The major deterrent to any other registrant -- Byron R. White: Where does the statute says that court trying a criminal case, is it entitled to consider whether a man is a conscientious objector -- Alan H. Levine: The statute only said -- the statute says that the court shall only review a basis in fact and presumably that is the limitation on this Court's review or on any court's review. That they cannot consider the whole claim on it merits, but only whether or not there was a basis in fact for denial. Byron R. White: You apply for that -- it can only review the board -- Alan H. Levine: That's right, Your Honor. The major deterrent though, for another registrant to do what McGee did here is a simple fact that if he wants his classification, the best place to do it is before the Selective Service System. He only has to convince the Selective Service System on the merits that he is entitled to the classification, whereas a court in review would only be determining whether or not there was a basis in fact for denial of that claim. We cite this -- a long line of cases in this Court, Green versus McCoroy, Kent versus Dallas would suggest that substantial rights, here the right to defend yourself in a criminal prosecution should not be abrogated without explicit congressional authorization. Potter Stewart: Of course, the points you just made, if the Selective Service System in its administrative review should deny his claim for conscientious objector status then that finding, that denial would have to be accepted by the Court, if there were a basis in fact for that denial, whereas if somebody proceeded along the lines that your client did and somebody well counseled to use your phrase, then, he would get up in brand new judicial de novo determination if you're right as to the validity of his conscientious objector claim which might be more beneficial than the very, very limited review that the court would be confined to if the claim had been denied, the Selective Service Administrative procedure? Alan H. Levine: I did not mean to suggest that there would be a different standard of judicial review applicable to McGee's claim and there would be to a claim where in fact the classification was appealed. I think the standard from McGee's claim the one used by the Second Circuit was a basis, in fact ,the claim has well has it would be if he had appealed. Thank you, Your Honors. Warren E. Burger: That consumes all of your time Mr. Levine. Mr. Reynolds. William Bradford Reynolds: Mr. Chief Justice and may it please the Court. I think that the cases of Falbo and Estep, read together fairly established that the principle of exhaustion of administrative remedies does have a place in criminal actions brought under the Selective Service laws and that general concept was not under attack in the recent McKart and Duvernay cases. They involve instead, exceptional circumstances, set to warrant a relaxation of the doctrine on particular facts presented. Petitioner seeks to have this Court overrule Falbo, Estep and their progeny, primarily because as I understand the argument, he come before the courts not as a plaintiff seeking affirmative relief, but as a defendant charged with a criminal offense. At the outset, it seems that if an application of the exhaustion doctrine were to turn on such a distinction, the effect would be in essence to penalize the registrant who after failing to exercise his administrative remedies decides to obey the law and submit to induction, seeking affirmative relief in the courts through a habeas corpus action. He would, under petitioner's theory, be precluded by the exhaustion doctrine from challenging his classification. On the other hand, if the same registrant had decided to violate the law and he then been criminally prosecuted, petitioner maintains that he cannot similarly be barred from raising the same claim as a defense. Potter Stewart: Do you mean by violating the law, you mean refuse to submit for induction? William Bradford Reynolds: Yes, Your Honor. Potter Stewart: Because his claim is, he is not violating the law because he is entitled to conscientious objector? William Bradford Reynolds: That's correct, Your Honor, assuming the -- if a criminal prosecution filed and he did (Inaudible). We do not think the exhaustion doctrine was ever intended to be applied in a manner which would encourage registrants to refuse induction and discourage them from complying with the law and testing their classification in habeas corpus proceedings. Moreover, to insist that the exhaustion doctrine cannot be invoked under any circumstances in criminal prosecutions under the Selective Service laws, is to ignore the statutory scheme on which this Court has based its earlier decisions in this area. Congress and the President have carefully constructed a very comprehensive and fair administrative appeal process within the Selective Service System. At the time a local board classifies a registrant, it is required to notify him that he has 30 days within which to request a personal appearance before his local board or to take an appeal to the state appeal board and that there is a Government appeal agent available to advice him fully of his appeal rights and assist him in the appeal process. At a personal appearance, the registrant may discuss his classification with the local board members and present both orally and in writing any new information, he believes maybe relevant to his claim and a written record of the appearance is placed in his Selective Service file. On appeal to the state appeal board, the registrant may specify in writing the matters in which he believes the local board erred or which he believes it failed to consider. The state appeal board's consideration is de novo based on its independent review of the registrant Selective Service file. It's classification is one of first instance, not a mere affirmance or reversal of the local board. Moreover, if the information in the registrant selective service file is not sufficient to unable the appeal board to determine the proper classification. The appeal board is required by the regulations to return the file to the local board for additional information or action. From the final decision by the state appeal board an appeal maybe taken to the national board if one, the state appeal board had been divided or two, even had not it been divided, if the national or state director is asked by the registrant to take the case to the national board on his behalf and a question of some importance appears to be involved. No registrant can be ordered to report for induction while his classification is being considered by the local and appeal boards. Now, while a registrant is nowhere required in the statute or regulations to seek an administrative review of his local board classification, the exhaustion of administrative remedy's principle seems implicit in the entire statutory scheme. When Congress in 1967 added to Section 10 (b) (3), the provision generally prohibiting judicial review of classification and processing questions until after the registrant has responded either affirmatively or negatively to an order to report for induction. The legislative history reflects clearly that the intent was to commit the resolution of such questions in the first instance to the discretion and expertise of the local and appeal boards. And this intent, it seems to us was underscored in this Court's recent decisions in Oestereich and Clark v, Gabriel, defining the narrow scope of pre-induction judicial review under Section 10 (b) (3) that is available to registrants who have exhausted their administrative appeal remedies and it seem to be central to the unanimous decision of the Court on a last term in Malloy. Of course, as stated in the McKart case, the exhaustion doctrine must be tailored to fit the peculiarities of the administrative system which Congress and the President have created and thus where, as in McKart, the classification is not one requiring administrative discretion and expertise, but turns instead on statutory interpretation, there is generally good reason to exhaust the exhaustion principle, to require further resort to local and appeal boards which are concededly ill-suited to the task of coping with such pure questions of law which serve no real purpose. Similarly, if the local board's action is challenged on strict constitutional grounds as was the situation in the Wolff case in the Second Circuit, exhaustion of administrative remedies might not be necessary. In that case the Second Circuit declined to invoke the doctrine, to preclude judicial review of delinquency re-classifications assigned to registrants for sitting in at their draft boards. And the reason given was that the action by the local board raises significant First Amendment questions under this Court's decision in Dombrowski. Nor would it seem is the doctrine, so wouldn't as to require its application where a registrant he can show he was physically unable to exhaust or he can show some other special or unusual circumstances which justified his failure to exhaust. And I think in this connection it's instructed to point out that the case McNeel v. United States, a conscientious objector case which was remanded to the District Court after McKart for a further consideration in light of this Court's decision in McKart. In that case, Judge Merrick of the eastern district of Virginia, he relaxed the exhaustion principle on the ground that there were in that case special circumstances in his words, that is that the registrant was apparently -- that the registrant apparently lacked any comprehension of his administrative rights under the administrative appeal procedure. However, we do not consider the instant case to be within any of these exceptions. At the outset, petitioner's efforts to bring the case within the McKart rational on the ground that the local board failed to consider his conscientious objector claim is simply not supported by this record. While there's some ambiguity in the board chairman's testimony as to whether the claim was in March 1966 at the time petitioner held the student-deferment whether it was considered at that time, the record clearly establishes that petitioner's entire file was reviewed and considered by the full board prior to reclassification in September 1967, that's when he got his I-A classification from the II-S classification and the District Court found as a fact that the claim had been fully considered as did the majority below. But I think the essential point here is that even had the local board failed to consider the claim, in the circumstances of this case, McKart would not be controlling. It is undisputed that the local board's action in September 1967 was not in response to the letter petitioner wrote to the President on April 15, 1967. That is, we do not have here in instance of unlawful reclassification by the local board in the Oestereich and Breen sense. At most, we have a situation where the board, in March of 1966, did not actually consider the claim because petitioner at that time had a lower II-S classification. And then in September 1967, the board mistakenly believing that it earlier considered the claim and finding no new information in the file relating to the claim, based its denial on what it thought to be a prior determination on the merits. It is our view that is precisely the type of procedural error, had then in fact been the case, which Congress and the President anticipated at the time they constructed the elaborate appeal machinery within the system. Plainly, a personal appearance would have corrected such a mistake. An appeal to the state appeal board which is required to consider petitioner's file de novo would certainly have cured the mistake. Nothing here, suggests that such as a course would have been a futile exercise. Unlike McKart, the administrative determination to petitioner's conscientious objector claim was not a matter solely a statutory interpretation. There was no statement here by the state director as there was in the McKart that he was predisposed to deny petitioner's claim. Moreover, we are not here dealing with a classification question where this Court can determine with any certainty as it could in the McKart that petitioner is entitled to an exemption as a matter of law. Here, the claim is to conscientious objector status. Such a claim by its very nature calls for the type of factual determinations which Congress has said, should in the first instance, be left to the discretion and special expertise of local and appeal boards. Moreover, it is one of the few claims that does not turn exclusively on the registrant's written submissions. It is undisputed that petitioner made out a prima facie case for exemption in his special conscientious objector form. But as this Court recognized in the Witmer case and again in Seeger, there is also the substantial question of petitioner's sincerity. Here, the local board which did consider the claim may have thought the petitioner was insincere perhaps because he claimed to have always then a religious conscientious objector and yet in August 1964, at the time when he held the I-A classification, he expressed some willingness to submit to induction or perhaps because his letter to the President was read by the local board as reflecting an objection to the Government's policies in Vietnam and the board might have thought that this was the real basis for his claim. Whatever the basis for the local board's denial in this case, we think it is clear that the administrative system never had an opportunity to examine the sincerity of petitioner's professed beliefs. Perhaps as petitioner suggests, if the local board doubted his sincerity, the better approach would have been to call him in for an interview prior to reclassification, but the law does not require local boards to do this. Moreover, in view of petitioner's letter to the President and his subsequent statement to the local board that he would return all correspondence from the system unopened, both of which took place prior to the time that the local board considered his claim in September 1967. It seems to us unlikely, that the petitioner would've appeared even if the local board had made such a request. Potter Stewart: Did he send to the local board a copy of this letter to the President? William Bradford Reynolds: He did not send himself a copy, but it was routed to the local board, Your Honor, yes. The local board did receive it but it did not come directly from the petitioner, yes sir. Speaker: Is the notice report of the physical examination, postcard or sealed letter? William Bradford Reynolds: I believe that that was a sealed letter. I believe that the Selective Service System sends all their orders in sealed envelops with their stamp on the corner in a window. The essential point Your Honor is that the Selective Service laws place the burden on the registrant to prove his sincerity. Had petitioner requested a personal interview, perhaps, he could have lay to rest any doubts that the local board might if have in this regard. Had he taken an appeal to the state appeal board, perhaps it would've read petitioner's file differently than the local board and granted the exemption or it might have found the information in the file insufficient and send it back to the local board with instructions to call petitioner for an interview. What we are saying is, if the local board did in fact commit error in the classification of the petitioner, it was precisely the type of error within the competence of the administrative agency to correct, but petitioner has chosen deliberately to bypass the administrative appeal machinery. Whatever his reasons, he is willfully adopted a position of total non-cooperation with the system, a choice he made prior to the time that the board gave final consideration to his claim on the merits. Thus, there has been no opportunity for the local and appeal board to consider fully the sincerity of his professed beliefs. If the exhaustion of administrative remedies is not required in this case, it seems to us that the operation of a selective service system could be seriously and effectively disrupted by others who might choose deliberately to bypass this elaborate administrative machinery that Congress and the President have established. They would then be able to submit to their local board's well-drafted conscientious objector claims, followed shortly by a letter, advising the board that their opposition is so strong that they no longer can cooperate with the system. Their cases then come to the courts in the same posture as the instant case without anyone having an opportunity to pass directly on the sincerity of their professed beliefs. Since the courts are not permitted under this Court's ruling in Gibson to receive additional evidence on this question, it seems to us they would have no choice, following the Estep standard which is now in statute but to dismiss a criminal prosecution for refusal to submit on the ground that the registrant selective service file, that is the documents which were before the board shows no basis in fact for denial of the prime facie written claim. We are not suggesting that the sincere registrants who are genuinely opposed to participation in war in any form are likely to run to this procedure. As pointed out in McKart, it seems unlikely that they will risk criminal conviction before taking all possible steps within the system to obtain an exemption or deferment. But in our view the exhaustion requirement is not need for such registrants. It is needed instead to cope with the recusant registrant who refuses for reasons best known to him to cooperate with the system in any way, who quite often is more intent on disrupting the operation of the system than obtaining an exemption? It seems to us that he should not be allowed to sit back and ignore the administrative processes with impunity while others are being called up to serve in his place. Speaker: What bearing you got the (Inaudible) William Bradford Reynolds: That's -- Speaker: But it's something of which the board is aware of that? William Bradford Reynolds: Well, Your Honor in our view, the board was not on constructive notice of the claim. I think our principle response is that with respect to the divinity claim, petitioner not only failed to exhaust his administrative remedies, he did not even invoke them in the first place and courts do not have under the statute, plenary review of classification questions, but are explicitly limited to determining whether the action of the administrative agency is without any basis in fact. But even if we assume that the board had constructive notice and even if we assume that the facts that petitioner rely on a trial because the District Court did except evidence on this point, even -- Speaker: Judge Friendly dealt with it, this footnote that Judge Feinberg was talking about -- William Bradford Reynolds: Except that Judge Feinberg did state Your Honor that his position would be entirely different even with respect to the conscientious objector claim if there have been no tendering of a claim in the first instance to the local board. And I would also add that even on the facts presented, this petitioner was not entitled to such an exemption, that's the factual question. The courts looked at that and there was no showing that he met the statutory standard, that his studies, that he himself as student studies were under the direction of a recognized church or theological institution. He was attending Union Theological Seminary, but there is no evidence that he was there under the direction of a church or religious organization. Speaker: Do the record show whether or not he got any degree? William Bradford Reynolds: I don't believe at the time that the case in the District Court that he had completed his studies, whether he now has one or not I don't know. Byron R. White: You are going to deal with the other issues, if you lose this one, aren't you? William Bradford Reynolds: If we lose this one, Your Honor, I do think that as to the other counts the petitioner was properly convicted for the deliberate non-performance of duties recently imposed on him under the laws. Byron R. White: Now, did the Court of Appeals pass on those issues? William Bradford Reynolds: No Your Honor, they did not. Byron R. White: None of them? William Bradford Reynolds: Not on the other counts, no Your Honor. They were discussed by the dissenting -- Byron R. White: Well, do if any of them wash out, if you lose this issue, do any of the other issues automatically wash out? William Bradford Reynolds: No, they do not. In our view, they don't. As to the -- Byron R. White: The Court of Appeals thought they might, didn't they? William Bradford Reynolds: I believe the -- Byron R. White: That one or two or the other counts automatically hinged on this one? William Bradford Reynolds: Well, they -- one or two -- the argument in one or two or the other counts hinged on the fact that he had been classified I-A. Byron R. White: Yes. William Bradford Reynolds: But I don't believe that the Court of Appeals addressed itself to the other issues because they found that he was guilty on the first count and under concurrent sentence doctrine in his discretion it is permitted. Byron R. White: It's only failure to furnish information count, that is unrelated wholly to accurate or inaccurate classification? William Bradford Reynolds: That's correct on that count but they did not reach that question. Byron R. White: So, if you lose this -- if you -- we must remand it to the Court of Appeals to pass on the remainder of the case? William Bradford Reynolds: I believe if we lose on a first issue you could properly remand to the Court of Appeals to pass on. Byron R. White: You don't urge that we make independent examination of any those other issues? William Bradford Reynolds: I don't think that this Court needs to do that. I will address a comment or two to each of the other ones. I believe that they were -- Byron R. White: Oh, I'm sorry. I didn't mean that -- William Bradford Reynolds: They were proper, but the Court of Appeals did not itself address its attention to that. Thurgood Marshall: We are to assume that the district judge would give two years for failure to present a piece of paper? William Bradford Reynolds: No, Your Honor. I think that the two-year sentence was based primarily on the first count and I do -- Thurgood Marshall: So, if you lose on that would the proper way be for to go into District Court and ask for reduction of sentence? William Bradford Reynolds: That is our position in our brief Your Honor and I believe that is appropriate. Thurgood Marshall: Okay. William Bradford Reynolds: That's correct. But at the same time -- Thurgood Marshall: So far that I'm concerned I have a great difficultly with the two-year sentence -- William Bradford Reynolds: We are not urging a two-year sentence if we -- Thurgood Marshall: That's why I am not sure. William Bradford Reynolds: No, Your Honor that's not what we are urging. But the other counts are briefed and before the Court. I think that conviction on those points was proper. The failure to report to his pre-induction physical examination, petitioner justified that on the fact that because he was classified I-A improperly, he was under no obligation to obey the intermediate directives of a local board. I don't believe that this argument can be sustained. The pre-induction physical examination is for the purpose of assuring the local board that a registrant is physically qualified and available for induction prior to the time that it issues its induction order in order to fill its call. The induction which petitioner under went at the station is a much more -- a much shorter examination and it is merely to determine the changes in his physical status from the time of his earlier pre-induction physical. And therefore, it's our view that does not absolve his failure to report to the selective service pre-induction physical. He argues that his notice of classification was invalid because his assigned classification was invalid, in our view, to qualify or valid and the regulation relates to anything to -- does not relate to anything other than the certificate itself, that it be authentic and properly executed and petitioner does not contest the fact that his notice of classification fully met these requirements and finally on the information questionnaire, the categorical language of the regulation violated, provides that each registrant shall submit to his local board in writing all information which the local board may at any time request from him. Petitioner concedes that his failure to respond to the current information questionnaire undoubtedly violated this language and we believe there is no good excuse, no good reason to excuse the violation. We are not dealing here with a minor lapse, but with a flat defiance of a reasonable request for information not readily available to the local board otherwise in which petitioner never provided to it. Warren E. Burger: Thank you Mr. Reynolds. Thank you, Mr. Levine. The case is submitted.

John G. Roberts, Jr.: We'll next hear Case 06-531, Sole versus Wyner. Ms. Seitz. Virginia A. Seitz: Mr. Chief Justice, and may it please the Court: The court of appeals held that plaintiffs who obtain a preliminary injunction are prevailing parties entitled to fees, even though the district court concluded that the State's nudity ban does not violate the Constitution, that plaintiffs were not entitled to any permanent relief, and that final judgment should be entered against the plaintiffs. This Court's cases have found plaintiffs to be prevailing parties in only two situations, when they win judgment on the merits or enter into a consent decree. And this Court has declined to confer prevailing party status based on interim rulings in ongoing litigation. Antonin Scalia: Ms. Seitz, I'd be curious to get your reaction to one of the points made by opposing counsel, which is that there were really sort of two different pieces of litigation at issue here, that it was an as-applied challenge that produced the preliminary injunction, and what was rejected in the final decision was a facial challenge. Is there anything to that? Virginia A. Seitz: No, I don't think there is. In the preliminary injunction, the district court predicted that it would find the nudity ban significantly infringed free expression and that the State had less restrictive alternatives. That's at page 18a and 19a. In the summary judgment decision, the court held that the nudity plan's effect on free impression was de minimis and it had, that the State had no less restrictive alternative. So in both instances the underlying legal claim was that as applied to nude expression the nudity ban was unconstitutional. David H. Souter: What do we make of what I understand was the court's post hoc statement that what was... the reason for issuing the temporary injunction was the perception that there was a content basis at work? And what do we make of it in light of the fact... I think this is of record; you correct me if I'm wrong. what do we make of that in light of the fact that I believe it is in the record that I forget the appropriate State official said, well, it's true we've let you do this in the past, but this is political or this looks political, which suggests that there was a content basis going on? What do we make of the court's statement and the record statement by the official in deciding whether there really was in effect a separate kind of order involved in the preliminary injunction from the order that was denied at the end of the case? Virginia A. Seitz: There's a factual answer to that and a legal answer, and I'll start with the legal answer, which is that the preliminary injunction itself states that it is assuming content-- David H. Souter: Oh, I know that. I know that. Virginia A. Seitz: --And as a legal matter-- David H. Souter: Because that's why I asked, what do we make of the court's statement subsequently? Virginia A. Seitz: --I think we, as the court of appeals did, have to disregard those statements because under Rule 65 of the Federal Rules of Civil Procedure, the preliminary injunction itself is the operative document, and the bases that it states for the issuance of the preliminary injunction are the bases that must govern both on judicial review of the injunction and as a matter of notice to the parties of the operative effect and basis for the injunction. David H. Souter: Is that so when there is some evidence in the record that a content basis actually was the criterion? Virginia A. Seitz: And that's the factual part of my response, which is that this testimony that was relied on which we quote in full in our reply brief, was testimony by the State, a State official who did not make the decision so was not actually aware of why the decision was made, and was testimony only to the effect that the demonstration envisioned on February 14th might be different than her previous plays, because more people might be expected. Now the court drew from that telephonic testimony a possibility that the reason for the State's denial on February 14 was the content; but in fact, although the court didn't recognize it, it also had before it a decision by the State in 2000 denying her permission to put on her play based on its decision to enforce its nudity ban against her at that time. David H. Souter: Now the 2001 order was it... was it? She applied, I think it was in-- Virginia A. Seitz: She wrote a letter in 2000 requesting permission to perform her play-- David H. Souter: --Yeah. Virginia A. Seitz: --Under the same terms that she had under the stipulated settlement from 1998. The State denied her request in a letter indicating that the nudity ban would be enforced against the play. David H. Souter: So the factual answer in effect is there isn't enough fact to support the distinction? Virginia A. Seitz: And... and I guess there's in addition a legal elaboration on that factual record, which was this was all occurring in a preliminary injunction hearing that took place 24 hours before the demonstration, telephonic testimony of an ill-prepared State witness. It was never followed up, even though that claim remained live through summary judgment, because the plaintiffs continued to have a claim against an individual defendant for damages. David H. Souter: Yeah. But when you got to the summary judgment stage, the particular peace demonstration performance was... was behind them. So they're, I'm not sure that it would have been expected to be reinjected into the case. Virginia A. Seitz: The challenge continued because there was a claim for individual damages from the park manager. So in order to determine that individual claim for damages, of course, the plaintiffs could have put in evidence that, in fact, rather than just as a preliminary prediction, the injunction was issued to prevent content-based discrimination. David H. Souter: So it wasn't moot after the demonstration. Virginia A. Seitz: That was not mooted out. John G. Roberts, Jr.: That's one of the things that concerns me. I mean in many of these cases you have fairly elaborate proceedings over the preliminary injunction and the event takes place. I would not want to get to a situation where people feel the need to artificially keep a case alive simply to ensure their entitlement to attorney's fees. So how do you protect against that? Virginia A. Seitz: We... the purpose of the attorney's fees provision is to encourage and reward meritorious litigation. And at the point at which you only have a preliminary injunction, no matter how long that preliminary injunction has been in effect, what you have is a prediction of success on the merits, a balancing of equitable factors that determine interim fairness, but you do not have a decision that the defendant has violated the Constitution or any Federal law. Anthony M. Kennedy: But in, but in many cases the case will become moot after a period of time and the Chief Justice and I have the same concern. The question is directed to do we just keep this litigation alive for the... for the ancillary issue of attorney's fees? Virginia A. Seitz: There are significant consequences to a finding of liability. And to conferring preliminary... or fees for preliminary injunction when you do not have a final determination of violation by the State, you're essentially ordering the State and local governments who have not been judged violators of law or had a full or fair opportunity to defend as a matter of law-- Anthony M. Kennedy: Well, we're asking about what rule you propose we adopt and the submission to you is that if we have a rule there can never be attorneys fees in this instance, that will then create pressure to continue the litigation when it's for all practical purposes of no real importance to the parties, other than to just establish attorney's fees. And that seems a waste of resources. Virginia A. Seitz: --And but the... the situation... that situation will also obtain if you confer attorney's fees and prevailing party status on a plaintiff who only has a preliminary injunction. Ruth Bader Ginsburg: But do we have to judge all preliminary and judgments alike? I mean, in some cases, the preliminary injunction is the thing. For example, suppose in this case, the demonstrators had said yeah, we went in with a... with a broad challenge but we knew all we wanted was that peace demonstration, and we got it; so we're... that's enough. We're not going to fight on. Virginia A. Seitz: The fact that a plaintiff gets his or her way temporarily based on a preliminary junction does not mean that the defendant has violated that plaintiff's constitutional rights or that that would be the resolution of the-- Stephen G. Breyer: Who... who... where does it say you have to have done that? My statute here says in any action to enforce a provision of 1983... the TRO or whatever was such an action. It says the court in its discretion may allow the prevailing party an attorneys' fee. Well, did they prevail or not? They got what they wanted. And it was such an action. Doesn't say anything about whether you have been declared horrible or wonderful or violator or not a violator. It says did they get what they want in the action? Answer, yes. End of matter. Now what's wrong with reading it that way? Virginia A. Seitz: --To prevail you must prevail on a legal claim. Stephen G. Breyer: Yeah, they got the legal claim. The legal claim is we want to have our demonstration on February 14; we have a right to do it and therefore issue an order. You said no, don't issue the order, because they don't. And therefore, they won. Virginia A. Seitz: Respectfully, that's not a legal claim. Stephen G. Breyer: It is not? Virginia A. Seitz: The underlying legal claim is that the State's denial of the permit was unconstitutional. Stephen G. Breyer: Yeah. But what about the legal claim we are under the law entitled to a preliminary injunction. Virginia A. Seitz: That is a type of relief you are seeking but it's based on an underlying legal claim. Antonin Scalia: It is not a determination, is it, that they have a right to hold a demonstration? Virginia A. Seitz: It is-- Antonin Scalia: It is just a determination that we don't know at this point enough to say that you don't have a right. Virginia A. Seitz: --It is a product of an equitable balancing that determines interim fairness-- Stephen G. Breyer: Well I thought, where it say that in the statute that you have to have that particular kind of a claim? Virginia A. Seitz: --I think this Court's cases have interpreted the word prevail and prevailing parties to mean you must prevail on the merits of a legal claim. The only instance in which that is not true is in a consent decree scenario and in a consent decree what you have is a defendant assuming legal responsibility for providing relief on the merits that resolves a claim. John G. Roberts, Jr.: So what do you do in a situation of mootness where there's... you know, they'd be happy to pursue the claim to establish that they prevail on a permanent junction as well as a preliminary one, but the case has become moot. Are they automatically disentitled to attorneys' fees in that case? Virginia A. Seitz: A claim that is never resolved cannot be the basis of prevailing party status. And that's what your hypothetical poses. And I also think it's not correct to say there is no point in continuing with litigation in that setting. In a private attorney general setting, there is a value to having at the end of litigation a decision-- John G. Roberts, Jr.: Well, there may be a point to pursuing it but I'm not sure it's one that the locality governments... I mean if you ask them the question, would you rather be liable for attorney's fees where you lose in a preliminary injunction but then the case becomes moot, or would you rather have to face individual officer liability to prevent the case from becoming moot? Or would you rather face ongoing litigation to prevent the case from becoming moot because there's too much invested in the fees... they might choose the former. Virginia A. Seitz: --Well in this case, of course, the State officials decided to defend the constitutionality of their nudity ban to the end. It was important to them. John G. Roberts, Jr.: Well, the plaintiffs decided to challenge it to the end. But I'm suggesting that if they know they might... it might result in a loss of attorneys fees, when all they really wanted was a particular demonstration, others might pursue it differently. Virginia A. Seitz: There are significant countervailing considerations, and one is that under the rule you're proposing, state and local governments would be fearful about enforcing perfectly valid laws in emergency situations for fear of being penalized with fees. Then they have no fair chance-- Anthony M. Kennedy: Well, you are saying the Chief Justice is proposing a rule. I think he was asking you... you want to just give us all or nothing. And we're suggesting that it just doesn't make systemic good sense to insist that every preliminary injunction be carried through to a final adjudication for attorney's fees. And we are asking is there some midway ground. And you, you've so far... you can structure the argument the way you want, but you so far are... in effect telling me absolutely not. Virginia A. Seitz: --I... I think that because of the rule I distill from this Court's case which is that you can't prevail on a claim that's not decided, it's hard for me to see what the middle ground would be. We do of course have the alternative ground for decision in this case which is that a claim, a preliminary injunction that's issued in ongoing litigation whose prediction on the merits is later essentially proven to be false by subsequent litigation, can't be the basis for prevailing party-- Stephen G. Breyer: So what do you think, when this was enacted, to make up an example that it is as horrifying as I can think, where the Ku Klux Klan was riding in the South, and a group of civil rights demonstrators wanted to make certain they could have their demonstration outside the jail and they go to the judge and says the sheriff is involved in this, the whole town is; we want an injunction tomorrow. Tomorrow. Right now. So... and we don't really care that much about the end of it, but we'll... we'll go ahead and litigate it if you want. Now they get their injunction. They have the demonstration; it's over. I would have thought if there was a situation for which 1983 was written, it's that one. Virginia A. Seitz: --And if in fact it is clear that there is no issue law in that setting. Stephen G. Breyer: Oh, there is. The other side has a lot of arguments. And they each have arguments. There are plenty of issues of law. Virginia A. Seitz: Then you just articulated why that plaintiff should not be considered a prevailing party without taking the position that that is capable of repetition, but evading review situation, arguing that in effect the judgment is based totally on law and converting it essentially to a judgment on the merits, or otherwise coming to a final judgment on a claim, so that the plaintiff would have-- Ruth Bader Ginsburg: But why should a plaintiff do that when the plaintiff's position is we got precisely what we wanted; this is not going to be... this is a one-time only demonstration. We're not going to repeat this. Why force litigation, especially when we can say in this case, you lost on the merits? The judge made a prediction. Turned out that... that that was wrong. Virginia A. Seitz: --To... to impose attorney's fees on a defendant, it's not simply about what the plaintiff gets, whether the plaintiff gets what he wants, but it is also about what the justification is for forcing the state and local government to pay fees. And the purpose of the Civil Rights Act is to impose such fees against violators of civil rights and for the benefit of victims of civil rights violation, and not simply on those whom it is predicted will have a substantial likelihood of success on the merits. Ruth Bader Ginsburg: So you get a case that involves a student. And... and something like the DeFunis case. The student is admitted to the law school event. They have much controversy over this affirmative action program. The student graduates. And... but the student has prevailed up until that time. Virginia A. Seitz: I don't believe the student has prevailed within the meaning of Section 19(a). The student has been predicted to be likely to prevail and has received an interim fairness... an interim adjustment based on considerations of fairness. Ruth Bader Ginsburg: But can't fight on because first, the student had gotten everything that he wanted and the case is moot. The student has graduated. Virginia A. Seitz: In that situation, I think the benefit is capable of repetition for debating review or of utilizing the class action-- Ruth Bader Ginsburg: Only if you had a class action. He had a single action, and he's graduated. Virginia A. Seitz: --But there are tools a plaintiff can use to prevent this kind of case from becoming moot where there is an important need to have an issue decided. Ruth Bader Ginsburg: Apart from the class action, what... what else is there? Virginia A. Seitz: 65(a)(3) which allows consolidation of a merits determination. Ruth Bader Ginsburg: Oh. Yeah. Virginia A. Seitz: I reserve the reminder of my time? Antonin Scalia: Well, I mean, what if... what if there's nothing else he can do? What... what horrible does he face? He faces a horrible of having to pay for his own litigation, just like the rest of us do. I mean this is an extraordinary benefit we're talking about here, getting... getting your attorney's fees paid. I... it doesn't seem to me that we're casting this, this person into the underworld. Virginia A. Seitz: And there's no basis for awarding fees against the innocent state and local government not determined to have committed a violation. May I reserve the balance? John G. Roberts, Jr.: Thank you, Counsel. We'll hear from Ms. Millett. Ms. Millett. Patricia A. Millett: Mr. Chief Justice, and may it please the Court. This Court has held repeatedly that liability for attorney's fees and liability for violation of Federal law go hand in hand. A preliminary injunction does not determine that there has been a violation of Federal law. John G. Roberts, Jr.: Are you on the all or nothing team this morning? [Laughter] Is it... can a preliminary injunction never be the basis for an award of attorney's fees? Patricia A. Millett: I won't say never in this narrow circumstance. And that is when, when a preliminary injunction results in a definitive and determinative ruling of law such as Thornburgh versus Obstetricians... College of Obstetricians and Gynecologists, or the steel mill seizure case from this Court. It came up on a preliminary injunction but this Court made a dispositive and controlling ruling of constitutional law. And assuming that that declaration is then followed up by a change in behavior by the defendant compelled as result of the ruling, that would be enough. But-- Antonin Scalia: Excuse me. How can that be, that a preliminary injunction resolves a dispositive question of law? Does that happen? Patricia A. Millett: --Well it happened... it happened in this Court and... and... and there were dissenters. But there... it happened in this Court's case in the Thornburgh case. It came up on a preliminary injunction. This Court determined there were no disputed questions of fact and it was only a contest of law what the Court said is that when they have done that we can make dispositive ruling of law. But I think that's an unusual situation and what's critical is that when-- Antonin Scalia: But it wasn't the issuance of the preliminary injunction that resolved it, it was the appeal to this Court where we... we resolved a question of law. Patricia A. Millett: --This Court resolved a question of law on the merits. The debate in that opinion between the majority and the dissents was that the... the dissent said majority should only decide whether it was an abuse of discretion to issue the preliminary injunction. And, I mean... it, it, it can become sort of the same thing if an error in law is necessarily an abuse of discretion, but when... when a superior court's made a definitive-- Stephen G. Breyer: What is the law in respect to this, which is right on the point you're arguing, that two parties have this kind of suit and the government party... they settle it, and giving everything that the plaintiff conceivably wants, but at the end they say: We don't admit we violated the law. Can you get attorney's fees there or not. Patricia A. Millett: --If it's a consent decree. Stephen G. Breyer: It's a consent decree, but no admission of a violation of law. Patricia A. Millett: No, that's right. This Court, while repeatedly stating, including unanimously just two years ago, that the central justification for attorney's fees is that the defendant is a violator of Federal law, has found that it will also permit attorney's fees in the consent decree situation, but that's because there you have a defendant who is not fighting and continuing to resist any form of final relief, has instead agreed to provide final relief that runs to a plaintiff, in favor of a plaintiff, and that advances the purpose of Federal law. John G. Roberts, Jr.: I have never understood why that's an issue. Can't the parties... it seems to me an exception that isn't consistent with the theory. Why can't the parties just agree on attorney's fees in the settlement agreement and the consent decree and then it wouldn't have to be an issue? Patricia A. Millett: I think, I think that in reality certainly a party can say, I'm not entering into a consent decree if we're not going to resolve attorney's fees now or if we're going to have a fight over them. So they certainly have that power because it's largely a contract, although one enforced by courts. I'm only trying to be candid with this Court's precedent, which is also recognized in Mayer versus Gagne. For some reason, maybe they reserved the question there to be disputed in court whether you'd be responsible for attorney's fees. But I do think That's much more of a side show because that can all be dealt with through the contract elements of the consent decree. And really what you're talking about when a court is coercively imposing attorney's fees on a defendant is that the defendant has a right to not pay those unless they have been found to be a violator of Federal law or have agreed to through contract to deal with that issue. David H. Souter: Okay, but the argument is undercut, as you yourself say, by the settlement rule. Don't we have the settlement rule simply because we want to promote settlements? We don't want litigation to go on and on and on simply because somebody wants to establish a right to attorney's fees. And doesn't that same reasoning apply here when there is a preliminary injunction and that's all the person wants. By the same reasoning that we accept a settlement, why shouldn't we accept a preliminary injunction as being a sufficient determination of rights to justify fees because we don't want it to go on and on and on when nobody has any issue of substance involved, but is just litigating for the sake of establishing a right to fees later? Patricia A. Millett: I have three answers to that. First of all, there are two parties here. The defendant has a right not to be assessed attorney's fees, which are a form of final relief not interim relief, without a final decision that they violated on the merits. David H. Souter: But the only attorney's fees that would be assessed would be attorney's fees attributable to the preliminary injunction. Patricia A. Millett: That's right, but they have a right not to pay anything if they haven't done anything wrong. David H. Souter: They have been found subject to a preliminary injunction. The playing field is no longer even. Patricia A. Millett: They haven't been found to be... there may be a Presumption or a substantial likelihood they're going to lose, but that doesn't always come out. And there's not even always a substantial likelihood-- Antonin Scalia: The point is you wouldn't mind putting that on a resume, that you have been subjected to a preliminary injunction. Patricia A. Millett: --No-- Antonin Scalia: It's not a black mark on your name, is it? Patricia A. Millett: --No. Antonin Scalia: You haven't violated any Federal law. Patricia A. Millett: This is a case in point. David H. Souter: But it does mean, it does mean that somebody with a burden to establish an entitlement to the injunction has carried the burden. Patricia A. Millett: Well, the test is the prevailing party, not the substantially likely to prevail party. And the other reason-- David H. Souter: Then let's not have it in the settlement case. Patricia A. Millett: --Well, again settlements can be dealt with through the settlement, as part of the settlement process. But I think-- Antonin Scalia: They are voluntary, these settlements, aren't they? So you could at least say that the innocent person who gets stuck with attorney's fees for settling gets what he asked for, right? It's voluntary. Patricia A. Millett: --Well, that's what I tried to explain to Justice Breyer. Stephen G. Breyer: That may be, but that's not the way the statute is written. John Paul Stevens: Would this case be different if the defendant had consented to the entry of a preliminary injunction? Patricia A. Millett: No, I don't think so, and I don't think courts as a matter of judicial economy want to tell the government every time we agree not to oppose, to stay the removal of an alien, that we somehow would get a bill. John Paul Stevens: So if this had been, if they had entered into a consent decree covering just the one event on the front burner, that would have been different? Patricia A. Millett: A consent decree is a final resolution of a claim that legally obligates the defendant, final relief that runs in favor of the plaintiff. John Paul Stevens: But if they consented to the entry of a preliminary injunction, why wouldn't that be equally binding? Patricia A. Millett: Because it is not a final resolution. Preliminary injunctions are important. They're of value to the parties. But there's a trade-off in getting it. The reason courts can give them is they aren't committed to final relief. They aren't committed to final obligation, and they can decide when-- John Paul Stevens: Well, they were able to go ahead with their one demonstration that precipitated the litigation, and they would have been able to do it the same way if they had a consent decree instead of having the other side not fight very vigorously in opposition to the preliminary. Patricia A. Millett: --The defendant who'S been fully vindicated at the end of the case shouldn't have to write checks to two attorneys instead of just their own. There's a fundamental fairness element here. But also on the judicial economy-- John Paul Stevens: But then why isn't the attorney... if there were a consent decree... I don't understand the difference. Patricia A. Millett: --Because the defendant's in the control of the fairness issue in the consent decree and is not in this situation. But the other situation, concern, is concern about judicial economy. And there's arguments in the amicus briefs on the other side that preliminary injunctions are common. But remember, this is... the central justification is that the plaintiff is a private attorney general who doesn't just do what they want to do, but either resolves the issue of law or obtains enduring changes in defendant's behavior that are of utility to the community at large. Contrary to-- Anthony M. Kennedy: We have when election season comes many, many requests for injunctions, and after the election is over the case just goes away. Nobody is interested. Patricia A. Millett: --That is not-- Anthony M. Kennedy: Under your position, all of these matters must be contested until final judgment before attorney's fees are available. Patricia A. Millett: --That is not the United States Government's experience when it's been involved in a lot of voting cases. Lots of them get fought until the end, and this Court's decision in Brown versus Choate recognizes these are capable of repetition, yet evading review. Now, if the private plaintiff doesn't want to do the work of a private attorney general, that's their choice. No one says you have to stay. It's just, if you want attorney's fees, you have to accept a preliminary injunction for what it is. It's very beneficial, but it is not a resolution on the merits that obligates the defendant to provide a form of final relief, not interim relief, to you. And this Court itself has expressed significant concerns about having voting cases being run up on preliminary injunctions at the last minute and the impact that can have on voting, and we shouldn't encourage that. John G. Roberts, Jr.: Ms. Millett, did I hear your legal test a while ago is an enduring change in the defendant's behavior? Is that your standard? Patricia A. Millett: Enduring more in... not in the transient sense of preliminary injunction. Obviously, things change on the outside world. But in the form of final relief and permanent relief, and that's what this Court's cases have said time and again. Not only must the defendant be a violator of Federal law, but in Ferrari, in Texas Teachers versus Darwin, in Hanrahan and Hewitt, the Court has made clear that it is final, a resolution of a dispute, a final judgment, the settling of a problem that makes someone a prevailing party. And "prevailing party", as this Court explained in Buckhannon, is a term of art. As we say on pages 11 to 12 of our brief, "That term of art, as defined in the relevant dictionaries at the time, was not just that you won something, but that you won at the end of the suit. " And that's a question of basic fundamental fairness to plaintiffs. Remember, there's going to be countervailing judicial economy concerns. If you tell governmental entities that they're going to have to take... may I finish... have to take emergency appeals from every interlocutory order and resist stays to avoid liability for attorney's fees. Thank you. John G. Roberts, Jr.: Thank you, Ms. Millett. Now we'll hear from you, Mr. Galanter. Seth M. Galanter: Mr. Chief Justice and may it please the Court: Respondents went into Federal court because State officials told them their protest would be illegal and they left Federal court with a preliminary injunction that prohibited State interference with their protest. John G. Roberts, Jr.: No, no. They left Federal court having lost on the permanent injunction. Seth M. Galanter: Well, Your Honor, 20-some months later they lost on another component of their case, where they were seeking permanent relief to enjoin the facial applicability of the regulations. John G. Roberts, Jr.: Their legal, their legal claim was that these regulations were invalid under the First Amendment. And they lost on that legal claim. Seth M. Galanter: At the end of the case, Your Honor, yes. But at the preliminary injunction stage, one... their claim for relief was a violation of the First Amendment and there was evidence at the preliminary injunction stage that-- John G. Roberts, Jr.: Well, they succeeded in filing their complaint as well, but they don't get attorney's fees for that, because they were successful at the filing complaint stage. Seth M. Galanter: --That's true, Your Honor. But what they obtained on February 13, 2003, was the relief they sought. Antonin Scalia: What if they got a TRO instead of a preliminary injunction? Seth M. Galanter: We're not suggesting that TROs-- Antonin Scalia: I know you aren't. Why not? Seth M. Galanter: --Well, there are structural differences between the two. Antonin Scalia: What are the two? I mean, they prevailed. They have a TRO here, something of value. Seth M. Galanter: There was not the adversariness that exists in a preliminary injunction. And I think the distinction-- Antonin Scalia: But it's just prevails. If you think TRO wouldn't qualify. Seth M. Galanter: --We're not suggesting that as the basic rule. What we are suggesting is that if you obtain a preliminary injunction, in part because Congress recognized the difference between TROs and preliminary injunctions and placed preliminary injunctions and permanent injunctions together as the kinds of orders that had-- Samuel A. Alito, Jr.: What if you get a preliminary injunction and then at the permanent injunction stage the basis for the preliminary injunction is reversed. Let's say the preliminary injunction here was based on the ground that the decision was content-based, a factual decision, and at the permanent injunction stage the court finds that it was not content-based. Seth M. Galanter: --Then we would not be prevailing. But I have to point out the district court in this case expressed-- Ruth Bader Ginsburg: Even though you got what you wanted? You got to put on the show. I thought that at the end of the line, the judge said your First Amendment rights have not been violated, the nudity ordnance can be enforced. If you had come back again, say the next week, and said, we want to do another peace symbol, after the court has ruled on the permanent injunction and you lost, you certainly couldn't prevail when you're coming back with another as-applied, when the court has said this ordnance is good and doesn't violate the First Amendment. Seth M. Galanter: That's correct. But if there were an intervening fact, if they permitted a performance of "Hair" and then said, but we'll enforce the nudity prohibition against your protest, then we would be able to come back. The final judgment in this case does not preclude future as-applied challenges, either content-based or arbitrary, and the district court recognized that when it made very clear that it did not reverse or repudiate its preliminary injunction ruling simply because we lost the permanent injunction. Ruth Bader Ginsburg: I thought this court said, and correct me if I'm wrong, that you wanted to put on a demonstration that would be like the plays, that would be hidden from public view because you have a curtain or whatever around it. And then the judge said, oh no, that's not what they wanted, they didn't want it to be hidden from you view, they wanted people to see their demonstration, so if that's what they want to do, they don't have any First Amendment protection. Seth M. Galanter: --That is what was at the end. I would just point out that at the preliminary injunction stage, you have to remember Ms. Wyner had been permitted to put on her play, not hiding it, several years before. There was testimony suggesting that one of the differences in the result, the refusal to allow the anti-war protest, was because it was an anti-war protest. And the district court makes it clear, in our brief in opposition appendix at page 4a. He says: "The court did not revisit or reverse its earlier decision regarding the same legal issue. " But I think all this just goes to the point for that this case presents some interesting issues, but that the per se rule that the Petitioners press, that you can never get-- Ruth Bader Ginsburg: Let's stay with this case because your interest is in getting fees in this case. Suppose you had lost the preliminary injunction and then you won at the end of the line. Certainly you would be prevailing throughout, right? Seth M. Galanter: --We would obviously be a prevailing party. But under Hensley-- Ruth Bader Ginsburg: Even though you lost on the preliminary injunction? Seth M. Galanter: --Yes. Under Hensley versus Eckert, this Court has made clear you can win on some claims, lose in others. John G. Roberts, Jr.: But you would get attorney's fees for the preliminary injunction work, even though you lost on that? Seth M. Galanter: We would get attorney's fees for the reasonable work that ended up leading to the success. District courts have for decades now parsed through these legal records, subject to review by the court of appeals. Ruth Bader Ginsburg: That parsing, is there any doubt that if you won on the main, in the main bout, that you would get your fees for your entire representation? Seth M. Galanter: Yes, there is doubt, Your Honor. The court does look for whether these fees are reasonable. Ruth Bader Ginsburg: Not that. But would you not get... would the judge say you don't get a penny for the effort you made to achieve the preliminary injunction because you lost, you lost it, even though in hindsight I could see that that was the wrong decision, you should have had it? Seth M. Galanter: Well, Your Honor, under Hensley you look to see whether they're related or unrelated claims. This Court has adopted-- Ruth Bader Ginsburg: They're obviously related. It's the same thing. I need... I have a short time to answer the preliminary injunction. The judge said: You haven't shown probability of success on the merits, or denies it. You win. I thought that there wasn't any doubt that you could get your fees for the successful result from the time you filed the complaint until the final judgment. Seth M. Galanter: --We would hope a court would find that an as-applied challenge and a facial challenge were sufficiently related that we'd be entitled to fees for both. But what I have to stress-- Antonin Scalia: Even though you lost on the preliminary injunction? The fees that you reasonably expended in seeking a preliminary injunction, even though you lost, you'd be able to charge to the other side? Seth M. Galanter: --If I had won the final-- Antonin Scalia: Yes or no? I think you can answer yes or no. Seth M. Galanter: --Yes. Antonin Scalia: Okay. Seth M. Galanter: But I would like to caution that that would be eligible for fees, but the court would go through it and say how much of this were related to your final win, was it reasonable. Antonin Scalia: No. How much of it related to the preliminary... you mean anything that related only to the preliminary injunction you would be denied? John G. Roberts, Jr.: All the work you did to show irreparable harm, balance of the equities, not on the merits, you're saying that's off the table? Seth M. Galanter: Well, it... no, Your Honor, because those very things are also needed at a permanent injunction. Samuel A. Alito, Jr.: But you've got five hours billed... you bill for five hours to write the brief that you submit at the preliminary injunction stage. You could get those fees later if you won at the permanent injunction stage, could you not? Seth M. Galanter: Probably. And we certainly would get the money we did for writing the complaint. And one of our counts for the complaint here was exactly for the preliminary injunction that we obtained. John G. Roberts, Jr.: Counsel, your approach, just as there are problems from the judicial economy perspective with your friend's approach, but doesn't your approach require the States to fight tooth and nail on the preliminary injunction because they're running the risk if they lose there, they're going to pay fees even if they prevail later? As opposed to, as is often the case, they might say, you know, we consent to the entry of the preliminary injunction or we don't... you know, we're going to save our energy. Doesn't it require them to fight every possible stage, including appeal and so on? Seth M. Galanter: Well, two things, Your Honor. As I think I made clear to Justice Alito, if the decision is reversed or repudiated by the district court, there would now... we would not be prevailing parties. We would simply have gotten this benefit. But-- Antonin Scalia: I don't know what you mean, if the decision on what? On the preliminary injunction? Seth M. Galanter: --Yes. Antonin Scalia: Is repudiated by the district... how is it repudiated? What do you envision? Seth M. Galanter: Well, in the hypothetical where the same facts, the same law, and the district court says I was wrong, that would be the kind of repudiation. Antonin Scalia: In a later case, you mean? Seth M. Galanter: In the course of the proceedings in the same case, Your Honor. But-- John G. Roberts, Jr.: Well, he doesn't have to say he's wrong. What often happens is as it is here, he say's I've got 24 hours, I don't have a brief from the other side, I kind of make the best guess I can. And then later on after an adversary presentation and an evidentiary hearing, he issues a different ruling. As here, he doesn't have to say I was wrong on my 24-hour off-the-cuff guess. It's just that I'm better informed. Is that repudiation or not? Seth M. Galanter: --No, Your Honor, it's not. And here, in fact he said the opposite. He said I wasn't wrong, these were based on different legal theories. And-- Ruth Bader Ginsburg: Where... can you... I thought what he said was... I thought they wanted a demonstration that was going to be secure from public view, and instead I understand now that's not... that wasn't what they wanted from the start. So on the premise on which I was operating, I was right, that they were going to do it just like the plays. But what they really planned to do, and did do, I was wrong because those facts were not before me. Had those facts been before me, they would have lost on the preliminary injunction. Seth M. Galanter: --I don't believe that that's the fairest reading of the district court's subsequent orders in this case. What the district court made clear was that his as-applied holding, that the plays and the war protests were being treated differently. Remember that it's-- John Paul Stevens: Yes, but assume the district court thought he was right at the preliminary injunction, and ruled otherwise at the permanent junction. But what if the court of appeals when it reviews the fee application, thinks he was wrong both times? Seth M. Galanter: --Well, Your Honor, we would suggest that the person in the best position to understand what the district court was doing-- John Paul Stevens: Is the district court. Seth M. Galanter: --Yes, Your Honor. John Paul Stevens: But maybe the court of appeals is in the best position to determine whether they made an error of law or not. Seth M. Galanter: Yes. And obviously they review errors of law, questions of law-- John Paul Stevens: And if they think he made an error of law, what should they do? Seth M. Galanter: --If he had made an error of law in the preliminary injunction ruling that, on de novo review, and reversed, then-- John Paul Stevens: No, there's no reverse. It's too late. They've had the demonstration so it's all over. But in reviewing the fee application, the court of appeals concludes that the district judge... the decision rested on an incorrect premise of law and therefore, he did make an error. Would that control or would the district judge's view of the validity of his own decision control? Seth M. Galanter: --We would suggest the latter, Your Honor, in part to avoid the fees on fees litigation problems. I mean, other than the per se rule of-- Anthony M. Kennedy: In other words, to avoid fees on fees, we do something that's wrong? Seth M. Galanter: --No, Your Honor. It's not wrong. It's consistent with the text and the policies underlying-- Stephen G. Breyer: I thought that it... am I wrong about that? I thought that if, A, he goes in, he gets a preliminary injunction, he says the law is da, da, da, the judge says you're right, that's what it is, preliminary injunction. And now it's continued up on appeal, the appellate court says you're wrong about the law. You got it, you had the event, but you're absolutely wrong, the law did not support you. I thought under those circumstances you were not prevailing and you couldn't get it. Is that the law or not? Seth M. Galanter: --It is the law, Your Honor. What I'm suggesting, though, is that-- Antonin Scalia: I thought the hypothetical was different, was, the case proceeds to final judgment on the merits; and at that point... okay... at that point, the issue of whether the preliminary injunction was valid or not comes up, not in the direct appeal from the preliminary injunction. Seth M. Galanter: --I-- Antonin Scalia: Assume you win on the merits. John Paul Stevens: It's a direct appeal on the fee issue. Seth M. Galanter: --Yes, Your Honor. What my... if I may, I agree with Justice Breyer's hypothetical that if you're appealing the merits and the court of appeals says something which shows that the... the preliminary injunction should not have been issued, we're not a prevailing party. I agree with Justice Scalia that if you're appealing from the preliminary injunction and the court of appeals reverses, then you're not the prevailing party. But Justice Stevens, what I would suggest to you and to Justice Kennedy was, we shouldn't be adjudicating whether the preliminary injunction was correctly entered at the fees stage. If there is-- Stephen G. Breyer: Is there any authority for that? Because it does seem to me wrong, that where a person has got a preliminary injunction and it's legally unsupportable, and then he gets the fee but then they appeal that and the court of appeals determines it's legally unsupportable, he never should have gotten it, I'd be surprised if there is a case that awards the fee in those circumstances, but maybe there is. What is it? Seth M. Galanter: --Well, I mean, the courts of appeals have adopted different standards. I can't point to one-- Stephen G. Breyer: Is there any case you can think of that under those circumstances let's him have the attorney's fees? Seth M. Galanter: --I can't point to one. Stephen G. Breyer: No, I would be surprised. Seth M. Galanter: But the-- Stephen G. Breyer: The other thing that I wonder about this case is, are you the prevailing party? And the reason I ask that is because when I look through the record it seems to me your clients are very interesting. They have their point of view. And their point of view, one of their points of view was that the state said you can have this demonstration, just wear a skimpy swimming suit. No. Well, you can have the demonstration maybe, I'm not sure of this, but we're going to put up a cloth so other people who don't want to see you don't have to see you. And there your client said, we won't pay any attention to the cloth. At least we didn't in the past. And then looking at that I thought, well, maybe what they got was, they got a preliminary injunction or a TRO, whatever you want to call it, but it didn't stop the State from putting up the cloth. It was pretty clear the State would, and it should have been pretty clear that they were going to ignore it, which they did. And why is this any different than having won an injunction to say okay, you can demonstrate, but in your swimming suit? In other words, they didn't want this. They didn't want what they got. Now, what's the response to that? Seth M. Galanter: --They did get what they wanted. They wanted to be nude. They wanted to make sure they weren't escorted off the beach or arrested. And that's exactly what happened. They had an order that protected that. Now, the screen was there, and there's material disputes of fact about what they were told about the screen by whom. But the court's order did not say stay behind the screen. They were not in violation of the court order. But I think this goes to the more general point, how can you tell when someone prevails, and this Court has already established that. You obtain some relief through a court award that materially changes the relationship. John G. Roberts, Jr.: Did the court order provide for a screen? Seth M. Galanter: The court order that... no. The court order said that the State was not prohibited from using the means it had in the past. So it clarified what the State was not prohibited from doing. It did not impose any requirement on the plaintiffs. Antonin Scalia: That included a screen. Seth M. Galanter: It did, Your Honor, but it didn't order the screen. Antonin Scalia: But your people didn't want a screen. Seth M. Galanter: That's correct, Your Honor. Antonin Scalia: So they didn't get what they asked for. Seth M. Galanter: They didn't get removed from the beach or arrested for being nude either, Your Honor, so they did get what they wanted. Antonin Scalia: Well, that's only because, I guess the other side didn't take the action that they could have taken if they didn't... if they didn't apply the screen. Seth M. Galanter: Your Honor, when you obtain the court award, just as if you obtain a court award to get on a ballot or to hold a parade, or to wear a tee shirt, I mean, you get that-- Antonin Scalia: Did they conduct the demonstration with a screen or without a screen? Seth M. Galanter: --I'm sorry? Antonin Scalia: Did they conduct the demonstration with or without a screen? Seth M. Galanter: They did not use the screen. Antonin Scalia: And since they didn't use the screen, the State was not prohibited from arresting them; is that correct? Seth M. Galanter: That's correct. Antonin Scalia: So they did not get what they asked for. Mainly a prohibition against the state interfering with the kind of demonstration they wanted, which was one without a screen. You say they didn't get that. Seth M. Galanter: They didn't get that, but they got something more than they had when they went in, which was, they got the right to be naked on the beach, which would have otherwise subjected them to arrest. And, I mean-- Antonin Scalia: The state had no problem with that. In the past the State had let them do that, as long as they had the screen. Seth M. Galanter: --It wouldn't let them do that this time even with the screen. It sent them a letter saying you may not appear on the beach nude. And I mean, obviously, at some times you don't get-- John G. Roberts, Jr.: So the State prevailed to some extent as well. They prevailed to the extent of getting in the order that they can do what they had done, which is erect a screen. Seth M. Galanter: --They... yes. They narrowed-- John G. Roberts, Jr.: So they're entitled to some... I mean, if... this is not a reciprocal switching thing, but I mean, it does go to the question of whether or not you are the prevailing party when your opponents have prevailed to a significant extent as well. Seth M. Galanter: --With respect, even if we had sought and obtained a permanent injunction that allowed us to protest but not behind the screen, we'd be a prevailing party, although the defendants by their successful advocacy would have narrowed the scope of the injunction. John Paul Stevens: Let me ask you this. Is it correct that an underlying principle of law that justified your claim for relief and your actual relief was that there's some First Amendment right to demonstrate in the nude? Seth M. Galanter: Yes, Your Honor, that was an underlying part of that. John Paul Stevens: And what is the support in our cases for that proposition, if any? Seth M. Galanter: Well, I think this Court's cases in Barnes, the nude dancing cases suggest that expressive activity combined with nudity is protected by the First Amendment. Judge Calabrese in the Second Circuit wrote an extensive opinion in a case called Tunic versus Zapper, where he surveys this Court's cases, and finds that occasionally there may be for artistic or political reasons a right to be nude as part of more expressive conduct. But I'd like to maybe-- Ruth Bader Ginsburg: But that was also a... that was the demonstration or the show arrangement under the... was it the Brooklyn Bridge or the Williamsburg Bridge? Seth M. Galanter: --It was on the streets of New York, Your Honor, yes. Ruth Bader Ginsburg: At 6 a.m.-- Seth M. Galanter: Yes, Your Honor. But to take this back just one step, to the notion that we either not need something that's sort of enduring or merits based in order to obtain relief. Maher versus Gagne suggested, a court doesn't need to resolve the merits in order for a party to be prevailing. Antonin Scalia: But see, it's so extraordinary for somebody to make the other side pay for his attorney. We don't even do that... we don't even do that for guilty people when they... when the other side wins. So they have violated the law. We still don't make them pay the other side's attorney's fees. Now you want us to pay your client's attorney's fees even though you're not dealing with a guilty party, because ultimately the court found no, there really, this person didn't violate the law. That is... you know, that's double indemnity. I mean, it's multiplying the extraordinary departure from our usual practice, which is that each side pays his own. It's one thing to say well, if you're a bad actor, in certain circumstances, civil rights cases, we'll make you pay the other side. But it's another thing to say if you're... if you're not a bad actor in a civil rights case but you're unlucky enough to get hit with a preliminary injunction, we'll make you pay for the other side. It just grates that that... it ain't fair. John Paul Stevens: It's not just a question of what we require, but what Congress intended when they wrote a statute authorizing these fees. Antonin Scalia: I assume that Congress doesn't often do things that are grossly unfair. And if there are various interpretations, one of which is not grossly unfair, that's the one we should-- John Paul Stevens: And these trump the literal language very definitely. Seth M. Galanter: Speaking of the language, we have here when Congress enacted 1970... 1998... in 1976, just two years before this Court had interpreted another civil rights attorney's fees statute. In that one, however, Congress had actually required a final order before attorney's fees would be awarded. Stephen G. Breyer: Well, before you leave that, I wonder if... there's one other thing floating around in my mind. I might as well bring it up. The word is prevailing, and if I go with you on the ground that it's flexible and can apply to all kinds of things, at least you have to really be prevailing, is there a good faith element in that? That is to say, if your clients when they went in to get this order and they got it, and at that time they had no intention of following what they had to do. Rather, they had every intention of going out and tearing down the curtain. Does that enter into the determination of whether they are really a prevailing party who ought to get their attorney's fees, if you're bringing the ethical element into it? Seth M. Galanter: I think, Your Honor, that... well, first of all, the preliminary injunction itself was an equitable remedy. Unclean hands could have gone into that question, and yes, in determining the amount of fees, again, equity can be considered. The good faith of the parties, just as the complete bad faith of a plaintiff, this Court has held, permits fees to be awarded for the defendants. John G. Roberts, Jr.: You can't go into court with the objective of just getting preliminary relief, can you? I mean, you have to have an underlying claim of illegality and, that seeks permanent relief, right? Seth M. Galanter: That's true, Your Honor. Although you can go into court knowing that-- John G. Roberts, Jr.: Knowing that-- Seth M. Galanter: --you're only going to be getting-- John G. Roberts, Jr.: --preliminary injunction. Seth M. Galanter: --And everyone here... excuse me. And everyone here knew that absent an appeal, this was the final word on the February 14th-- John G. Roberts, Jr.: On the February 14th, but your client sought further relief. Seth M. Galanter: --Yes. But it also sought it as a discrete claim for relief in the complaint, this very injunction. Ruth Bader Ginsburg: --You get costs? The phrase is "attorney's fees as part of costs. " So, do you get costs for up to the preliminary injunction? Seth M. Galanter: Yes, Your Honor. The district court in this case awarded us costs and also awarded the other side costs. And that's actually-- Ruth Bader Ginsburg: So you would split the costs? Seth M. Galanter: --He found we were both prevailing parties in the case. And that's also consistent with this Court's decision in Hensley, which says you look at a case and the unrelated claims; you can find that the plaintiffs are prevailing parties on some, the defendants are prevailing parties on others, and order cross awards of attorney's fees. Ruth Bader Ginsburg: So this defendant, having succeeded in being the winner in the whole case, didn't get costs for the whole case; is that what you're telling me? Seth M. Galanter: They were awarded... they sought and were awarded all their costs for the entire case, or they sought their costs for the entire case. It was reduced by the district court as a matter of equity. But they... not because... not parsing it out among various parties to the case. Ruth Bader Ginsburg: So they were entitled to costs for the entire case? Seth M. Galanter: Yes, they were, Your Honor. Ruth Bader Ginsburg: And attorney's fees under the statute are to be awarded as part of costs? Seth M. Galanter: Yes, Your Honor. Ruth Bader Ginsburg: So if you're not entitled to costs, if the defendant got the full costs, then how do you get entitled to attorney's fees when the statute puts them together? Because attorney's fees are part of costs. Seth M. Galanter: That's correct. And there are many cases where both parties end up getting awarded costs. Hensley was one that suggested it was possible. Ruth Bader Ginsburg: But this wasn't-- Seth M. Galanter: No. Ruth Bader Ginsburg: --This was one that the state got all of its costs from your client? Seth M. Galanter: Yes. And our client got costs from the state. There were counter awards... cross awards of cost, which is not unusual in civil litigation with multiple claims. But more importantly, I think, when we go back and we look at the purposes, not only do we have the language here, we also have the recognition, I think as I was mentioning to the Chief Justice, that there's going to be a lot of situations where core 1983 rights, core constitutional rights are at stake where you know you're not going to be able to obtain a permanent injunction. You may even, as my friends on the other side say, ask that the two be consolidated. Samuel A. Alito, Jr.: What if that's not the case, but the plaintiff after getting a preliminary injunction just voluntarily dismisses the case? Do they still get costs for the preliminary injunction? Seth M. Galanter: Oh, I think the answer is yes. And I think that that's actually something that should be encouraged. In this case, the preliminary injunction was relatively cheap, as litigation goes. To encourage them to continue, particularly since the core relief they sought had become moot. Yes, there was additional relief they sought, or it could, in a hypothetical could seek. But absent an appeal, that part of the case is over and there's no real need to continue to litigate it. John G. Roberts, Jr.: I know you were asked this question and your answer may have just slipped by me. Why, if you had asked for a TRO, why would you not be entitled to fees on that? Seth M. Galanter: We think that Congress's distinction as far as putting preliminary injunctions and permanent injunctions in one category and TROs in another for purposes of appealability, reflect kind of a congressional judgment about which is... which mechanism is intended to alter the kind of substantial rights. And absent the rights to appeal, absent the adversariness, the heavier focus on irreparable injuries, unlike at the preliminary injunction stage, those are all things that we think make TROs generally ineligible to affect prevailing party status. David H. Souter: Because the TRO case, characteristically the other side isn't heard, so you haven't prevailed. Seth M. Galanter: That is one way to view it, Your Honor. Without the adversariness at the hearing, there really was no one to prevail over. Whereas here-- John G. Roberts, Jr.: No. I thought you prevailed in the sense that you secured relief. That's how you articulated it up to this point. Seth M. Galanter: --Well, this Court has certainly described some relief as the threshold of prevailing. I'm simply suggesting that there may be other kinds of orders, as this Court suggested in Hanrahan versus Hampden, that are just not sufficiently... they don't have a sufficient change in the legal relationship between the parties to warrant prevailing party status, even though they do benefit the plaintiffs. Antonin Scalia: --Well, you surely wouldn't say that the fact that the other side never shows up means that you can't get your attorney's fees. Seth M. Galanter: No, Your Honor. What I'm suggesting-- Antonin Scalia: So you're a prevailing party whether there's an adversary on the other side or not. Seth M. Galanter: --What I'm saying is that the TRO anticipates that, which is in part why we're not suggesting TROs are-- John Paul Stevens: Yes. But in this very case, if you had gotten a TRO instead of a preliminary injunction, you'd have exactly the same practical situation. Seth M. Galanter: --Yes, Your Honor, but we were... we did have a preliminary injunction. The State therefore did have a right to appeal, and a lot of other consequences flow from the fact that there-- John G. Roberts, Jr.: The State did make a point, that they were kind of... this was short notice and they were doing the best they could on short notice. I mean, they showed up but only sort of. Seth M. Galanter: --With three attorneys, Your Honor. And yes... and we both have our stories about why there was short notice. Ours is they only told us a week before they weren't going to allow her to protest nude. And so we moved as quickly as we could. And this is what often happens in election cases, demonstrations, parades, religious exercise. John G. Roberts, Jr.: But the regulations told you weren't allowed to protest nude. Seth M. Galanter: Your Honor, those same regulations had been in effect the four previous times she had protested nude. And it was consistent with the stipulation they had entered into that her nudity was protected by the First Amendment. So again, she was certainly entitled to negotiate as she tried to do with the State. She was told one week before that she wouldn't be allowed to do this. She went to court. She got the very relief that she sought and she was able to protest in the nude. Now in the other cases, you're going to get someone who just finds they were denied the right to register or to get on the ballot, and that's going to be disposed of immediately. It won't be capable of repetition by evading review because the person is now registered, the election is now over. Maybe that candidate won't run again. So we have a whole core of First Amendment cases that will be affected if Petitioner's per se rule that preliminary injunction is never enough goes into play, because then States have the unfortunate incentive of pushing the decisions very close to the actual event deadline so that even if they lose in court, they won't have to pay attorney's fees. And I would add that in terms of the broader notion, here we have a midlevel state official sending a letter to an individual saying we don't think you have any First Amendment rights, and if you come, you'll be violating a law that's subject to criminal arrest, if you come and you're naked, you're going to be subject to criminal arrest. Absent Section 1998, it would be incredibly difficult for persons in Ms. Wyner's situation to find attorneys. Thank you, Your Honor. John G. Roberts, Jr.: Thank you, counsel. Ms. Seitz, you have three minutes remaining. Ruth Bader Ginsburg: Ms. Seitz, would you clarify that point about costs? Did your client have to pay costs? Virginia A. Seitz: The plaintiffs were awarded costs incurred on the preliminary injunction. My client was awarded a right to costs on the remainder of the litigation. Those costs were reduced to mirror the precise costs that the plaintiff was awarded on preliminary injunction, so in the end no one received any costs. But costs were allocated for plaintiffs for the preliminary injunction, and defendants for the remainder of the case. I just want to make one point about the timing. The time prior to the 2003 demonstration, in 2000 she wrote a letter requesting the right to protest nude and received a denial letter in response, similar to the one she received in 2003. So she was on notice as of 2000 that we were enforcing the nudity ban against her activities. Second, I want to say that the district court itself characterized its holding on summary judgment, quote, "as plaintiffs are unable to show actual success on the merits. " page 34a of the appendix. So there's no doubt that what even the court understood its own holding to be was that the prediction in the preliminary injunction had failed to materialize when the court considered the full case on the merits. And finally, I want to say that awarding fees, conferring fees for a plaintiff for obtaining a preliminary injunction essentially requires the State treasury to pay its opponents when, in fact, the State has done nothing but enforce a valid law. And we know that in this case because the case ended up getting litigated to conclusion. But simply because we don't know that in other cases involving preliminary injunctions doesn't mean it isn't true, and that's why it's fundamentally unfair to impose fees on State defendants and local governments that haven't had a full and fair opportunity to defend their legal position. Thank you. John G. Roberts, Jr.: Thank you, counsel. The case is submitted.

Warren E. Burger: We'll hear arguments next in 73-1908, Cort against Ash. Mr. Rome, you may proceed whenever you're ready. Edwin P. Rome: Mr. Chief Justice and may it please the Court. This case is here on writ of certiorari to the United States Court of Appeals for the Third Circuit. A three-judge panel of which in a divided opinion, reversed the grant of summary judgment which have been entered by Judge Troutman of the United States District Court for the Eastern District of Pennsylvania on behalf of the defendants, the petitioners here. Chief Judge Seitz writing for himself and also for Judge Hastie reversed the grant of summary judgment. Judge Aldisert wrote a dissent. The factual background of the case is the following. Mr. Ash filed a complaint just a little bit more than five weeks before the presidential election of November 1972 asserting a claim against Bethlehem Steel Corporation and 12 of its directors and senior executive officers claiming on behalf of himself as voter citizen and stockholder and derivatively on behalf of Bethlehem Steel Corporation itself, claiming a violation of 18 U.S.C. Section 610 on the basis of a charged plan by the defendants to violate 610 by utilizing the resources of Bethlehem Steel Corporation including the expenditure of corporate funds to bring about a republican victory in 1972. More specifically, there was asserted by the plaintiff below that corporate funds were expended for ads which appeared in magazines of national circulation and also, in newspapers which appeared in 19 towns where the company had plans which ads were said to be blatantly partisan. The ad in question only one which was attached to the complaint appears at A16 of the record and also reproduced at the end of the petitioner's brief here. There was also a second count under which pending jurisdiction was asserted based on an assertion of ultra vires and illegality under Delaware law. Going back again to the same element of expenditure of corporate funds. Injunctive relief including the corrective advertising to be placed at the expense of the individual defendants, compensatory in punitive damages as well as Attorney's fees and cause were sought. A temporary restraining order was sought which appears at page 17 of the record in which there was sought a prohibition against Bethlehem Steel Corporation from purchasing or paying for advertising, identical to or substantially similar to Exhibit A, that was refused and thereafter there was an application made for preliminary injunctive relief and I would invite and request Your Honors attention to the language of the prayer for preliminary injunction which appears 826 of the record because there the plaintiff sort to prohibit the individual defendants from causing Bethlehem to purchase or pay for any advertising in connection with any federal election. Including but not limited to advertisement, identical or substantially similar to Exhibit A. Prohibiting Bethlehem from purchasing or paying for any advertising in connects with any federal election including but not limited to advertisements identical to or substantially similar to Exhibit A. Directing Bethlehem Steel to cancel all advertising previously ordered in connection with any federal election including but not limited to advertisements identical to or substantially similar to Exhibit A. William H. Rehnquist: Mr. Rome, the Court of Appeals didn't in its opinion necessarily approve that form of relief, did it? Edwin P. Rome: I believe sir. The necessary consequence of the majority opinion is indeed not only to approve the form of relief but in actuality to sanction injunctive relief as a preferred remedy contrasting with the criminal remedy set out in the statute itself. And this thereby in our contention Mr. Justice Rehnquist, at once creating an entire problem of prior restraint because my purpose in reading this language to the Court is to show that there was in actuality, a prior restraint not only of the particular ad but indeed of ad that had not yet been prepared or published. William H. Rehnquist: Well, didn't the respondent seek damages also? Edwin P. Rome: Yes, Your Honor. Damages both compensatory and punitive were sought and the majority of the Court of Appeals below held that there was an implied rate of action on behalf not only of stockholders but also on behalf of all voters as a result of which in our submission there is an unparalleled implication of a private right of action in this case going far beyond anything which to our knowledge has ever occurred before. Most particularly, the majority paneled below concluded that it was not bound by this Court's decision in Amtrak but turned rather to Borak and although it held under Borak that the implication of a private remedy was appropriate to use Chief Judge Seitz words. He went on to conclude that it was appropriate for a variety of reasons including the availability of a more expeditious remedy, including the possibility of some sort of partisanship on the part of governmental authorities charged with the enforcement of the Act and also because it was appropriate and necessary to carry out the purposes of the statute. Judge Aldisert dissented based upon this Court's ruling in Amtrak saying indeed that the majority had defied this Court's ruling in Amtrak. The trial judge who was reversed by the majority panel had concluded on the basis of the advertising which was presented to him that there was not an implied right of action. That 610 had to be narrowly construed in order to avoid a constitutional infringement of the First Amendment and that as so construed the expenditures here involved did not come within active electioneering which would come within the prohibition of the Act. And he also said that to enjoin the expenditures here would raise the gravest constitutional issues under the First Amendment. Following the reversal, there was -- following the grant of denial of the preliminary injunction. There was an appeal to the Third Circuit which affirmed the denial of the preliminary injunction. Thereafter, there was an application for security for expenses below as the result of which the state pendent jurisdiction count was dropped out by my friends. And thereafter, there was a motion for summary judgment filed before Judge Troutman, on the basis of the fact that there is no implied private right action under 610. That 610 is inapplicable as a matter of law and that 610 is unconstitutional. There was a motion for evidentiary hearing which was denied because Judge Troutman found that on the basis of the language of the Act on the basis of the congressional history and the purpose of the Act. There was no implied right of action and he could rule that as a matter of law and summary judgment was then granted without opinion. I would urge Your Honors to examine the material that was published by Bethlehem admittedly which is attached to the brief and in the record. In our submission, an examination of that material was showed that it is not to be identified with any anti-social conduct. This kind of political speech, we submit, ought not to be characterized as a crime. It cannot be said to come from a corrupt or corrupting source. As a matter of fact, in our urgent submission to this Court, it comes within the language of Justice Reed and the CIO case if the earlier Provision 313 were construed to prohibit the publication by corporations in the regular cause of conducting their affairs. A periodical's advising their members, stockholders, and customers of danger or advantage to their interest from the adoption of measures or the election to offices of men espousing such measures, the gravest doubt would arise in our minds as to its constitutionality. In our contention here, the advertising the material that is before the Court represents nonpartisans sponsorship of issue oriented advertising, contrary to the viewed taking by Chief Judge Seitz for the majority below. We say there are an abundance of countervailing reasons why this Court should not conclude that the implication of a private right of action is necessary here. As Your Honors are aware, the Government has far than amicus brief in this case. It has not contended that the implication of a private right of action is necessary. Its here simply to support the constitutionality of Section 610, as a matter of fact the implication of a private right of action in our view would come within the bond suggested by the Nashville Milk case that such private right of action is subjected to great potential abuse because here we have as the result of the opinion by the Third Circuit. An ability on the part of the all of the voters of the United States, all of the stockholders of corporations to bring actions for injunctive relief and damages and what this would mean by way of an engulfment of the Court's throughout the country is plain to be seen because it lends itself to the possibility of conflicting judgments coming out of different courts on the same ads, a multitude of litigation coming through out the country, ultimately coming to this Court. Moreover, it is admitted in this case that there is nothing in the con -- the congressional history of the litigation which shows any intention on the part of the Congress to imply a private right of action. On the contrary as Your Honors are aware, this is legislation which has for over 50 years evoked the continuing repeated concern and attention of the Congress. It has been as Your Honors are aware recently amended not only in 71 but also in 74 and then our view, one of the countervailing reasons that militate against the implication of a private remedy is the fact that in the Amendment of 1974, although there was an Amendment which created a private right of action under Title 3 of the Act, there was no change by the Congress of that which appears in Title 2 of the Act and this comes within what Mr. Justice Stewart wrote in Amtrak with regard to the application of exclusio unius. In addition, there is nothing in the language of the Act itself which speaks or hints in terms of the implication of the private right of action and as a matter of fact, this legislation shows a carefully devised program elaborated by the Congress which now has set up a Federal Election Commission as the result of which there are procedures of available for remedies including criminal remedies as well as specific civil remedies. Under Mr. Justice Brennan's reference to the cross light in the Pipefitters case, we say that this kind of cross light is capable of being brought to bear upon Section 610 as the result of which it ought not to be held to imply a private right of action. In addition, normal principles of statutory construction, we suggest dictate the denial of the private right of action because there has to the best of our research and knowledge Your Honors, never had been a situation in which there has been the suggested implication of a private right of action which at once runs counter to First Amendment rights of the defendants, the petitioners here and carries with it inevitably, inescapably the possibility. The inevitability of prior restraint because I repeat, Chief Judge Seitz for the majority below literarily said that there was a much more expeditious remedy to be found particularly in the form of injunctive relief by the implication of a private right of action and how that could occur or come about without necessarily at ones leading to a prior restraint as its evidence by the nature of the language of the motion for preliminary injunction that was originally sort here is something that really belies reality. Now in addition to that, we have the situation that the rules laid down by this Court particularly in areas that impinge or intrude upon First Amendment rights call for a narrow construction, a restrictive construction in order to avoid or save the constitutional issue. But on the contrary, that which the Court below has done has been to produce the most expanded kind of interpretation of expenditure. Your Honors we'll recall that the rational back of the congressional legislation had to do with the thought of undue influence emanating from aggressions of wealth whether by corporations or unions, and a desire to protect the minority interest within corporations or labor unions. The reality of it is that the Expenditure Clause in 610 as interpreted by 591 which the court below did runs in the face of that kind of understanding for the reason that the interpretation means that the expenditure of one dollar even though, it had the consent unanimous consent of the stockholders or of members of a labor union would nevertheless come within the band of the statute. Moreover, our contention is that the ads on their face, the ad, the speech, the folder cannot be construed as representing active electioneering. They cannot be held because they do not mention the name of a single candidate nor that they mention the name of a political party. They cannot be held therefore to come within the language that Mr. Justice Frankfurter used in the UAW case as something that was intended to influence the public at large to vote for a particular candidate or a particular party. Byron R. White: Does your argument here, your making a constitutional argument now or your making a statutory construction on you? Edwin P. Rome: It runs both ways Mr. Justice White for the reason that in our contention their ought not to be an implication of a private right of action when constitutional infringement occurs and in addition, there is the constitutional argument in on of itself. Byron R. White: Yes. Well, but if the statute plainly covers these kinds of expenditures then you would reached your constitutional argument, -- Edwin P. Rome: Yes, sir. Byron R. White: But, but -- now, how about --did do -- does involve here in Section 591 I gather -- Edwin P. Rome: 610 and 591 both come into -- Byron R. White: You don't disagree -- you don't disagree that 591 standards are relevant to 610? Edwin P. Rome: Oh! No. No, sir I do not disagree. On the contrary, we say that 610 has to be interpreted and defined by reason of 591. Byron R. White: And so, you're saying that these expenditures are plainly covered by either Section? Edwin P. Rome: We say that, the Sections were never intended to cover this kind of issue oriented non-partisan advertising or communication because -- Byron R. White: And if not? I gather if you're correct in that, then the constitutional argument you make need not be -- they disappear? Edwin P. Rome: That's right sir. If there is no -- Byron R. White: But you're using the constitutional arguments as a reason for giving in the construction this expenditure argument? Edwin P. Rome: Yes, sir. Which is what has been done before a narrowed construction of expenditures, so as to avoid running counter to the constitutional principles that are -- William H. Rehnquist: And then you wouldn't have to decide whether there was a private right of action either if your narrow construction there's term expenditures is right? Edwin P. Rome: It would then reach the conclusion Mr. Justice Rehnquist that the complaint does not state the cause of action on its face because it does not then come within the band of expenditure as use in 610 and 591. William H. Rehnquist: But the criminal sanctions wouldn't be applicable on that? Edwin P. Rome: It would not be applicable because there would have been no wrongdoing committed by Bethlehem or the defendants. Byron R. White: Now, the courts of the Court of Appeals just to claim disagreed with you that as a matter of fact these particular expenditures were partisan? Edwin P. Rome: It held only Mr. Justice White that there was a disputed issue of fact as the result of which the grant of summary judgment was reversed and the case was remanded to the District Court for a trial with regard to that, although -- Byron R. White: Oh! I see. So, -- Edwin P. Rome: The earlier situation, excuse me sir. Byron R. White: Yes, I -- Edwin P. Rome: The earlier situation was one in which the trial judge himself as a matter of law had concluded that there was not a partisanship -- Byron R. White: I gather, yes. Edwin P. Rome: In the publications. One additional point that also emerges in this factual context is a denial by of equal protection of the laws because 610 is applicable only to corporations and labor unions and obviously, is not applicable to any of the other numerous groups that are as much capable of being permitted. And have the same rights to express there views so that the electorate may hear their views because that is where also the First Amendment right goes as well as on the part of the defendants, the petitioners here, to express their views. And Your Honors will recall that Mr. Justice Douglas in his dissenting opinion in UAW speaks in terms of unions, associations of manufacturers, retail and wholesale trade groups, consumer leagues, farmer's unions, religious groups, and every other association representing a segment of American life as having a First Amendment right to communicate their ideas and the electorate in turn having a right to hear those idea -- William H. Rehnquist: That was a dissenting opinion? Edwin P. Rome: Yes, sir. It was. It was indeed Mr. Justice Rehnquist. But it serves to point up the fact that in the face of repeated expressions by this Court raising red flags at least as to the constitutionality of Section 610. The court below instead of adopting a restricted interpretation of expenditure and the language of 610 for the purpose of influencing the nomination for election or the election to federal office, on the contrary, took a very expanded view so that there is no expenditure of any kind that could possibly come without the bond of the Act and the definition given by the majority of the court below. Our view is, that in actuality there is a denial of the equal protection of the laws because beyond mere problems of corporate aggregations of wealth. As Your Honors, I believe our well aware, there are some 50 entities that are not corporations which are traded to on the New York's stock exchange and there are all these other entities that are equally involved in the robust vigorous discussion that Your Honors have said was necessary in order to protect First Amendment rights. Byron R. White: A moment Mr. Rome. Edwin P. Rome: Yes, sir. Byron R. White: If we were to disagree with your view of the scope of expenditures but agree that there was no implied right of action. What happens to the constitutional question here? Edwin P. Rome: It is not then reached Your Honor. If there is no implied right of action here -- Byron R. White: That ends this lawsuit. Edwin P. Rome: Yes, it ends this lawsuit. Yes, sir. Byron R. White: And you say the constitutional idea to some criminal prosecutions here? Edwin P. Rome: Except Your Honor, may I bring to your attention in that regard, the fact that the Amendment to the FECA of 1974 has created the Federal Election Commission which is intending to get under way. We had a presidential election coming up and this comes within the language of Your Honor's decision in the Cox Broadcasting case. There are enormously important First Amendment rights which invite Your Honor's determination now, rather than the fact which has been the case that for 18 years there has been a miasmic cloud over this entire subject as the result of which. It is difficult for us to conclude other than that there is an extremely chilling effect on the right of free speech not only of corporation but all other entities as -- Byron R. White: What is law as the -- there is administrative agency that -- Edwin P. Rome: Yes, sir. Byron R. White: Possibility for enforcing -- Edwin P. Rome: There -- Byron R. White: This law? Edwin P. Rome: This law Your Honor -- the -- as amended by 1974 made up of -- Byron R. White: Is that -- this have cease and desist power, they didn't have to go court or what? Edwin P. Rome: It has the ability to bring civil action and there is also the continuing criminal remedy available. The Commission is made up of six members, the clerk of the Senate, the secretary of the Senate, the clerk of the House, and then four others. Byron R. White: Do you think that under the new law there would be an argument about there being obliged, don't they? Edwin P. Rome: I would think Your Honor that there is bound to be because this case in itself repre -- Byron R. White: There's nothing in the new statute that says, whatever this agency may do that it what may do is exclusive. Edwin P. Rome: It -- it -- Byron R. White: Well, but if Congress has it oppose the -- I don't remember that this -- agency which has civil remedies available? Edwin P. Rome: But that comes within Title 3 of the Act, Section 610 comes within Title 2 of the Act, sir. And this is why we say that, the cross-like to be brought to bear here indicates that Congress quite knowingly never intended that there be the implied private right of action because this is not the kind of statute that is just one's treated by the Congress. On the contrary, -- Byron R. White: But if your – it's certain if you, if you think you have strong argument under the old statute, it certainly has gone -- Edwin P. Rome: Indeed, Your Honor and this is one reason why since the matter is here and certiorari has been granted that covers because we did indeed raise the constitutional question. We hope and request that Your Honors would give consideration to the constitutional issue because it has ongoing enormous impact and inevitably there will be other cases that will follow or attempt to follow the President of the Third Circuit. With Your Honors' permission unless there are other questions, I would reserved my time -- Potter Stewart: What would you think the law means when it says, the Commission has primary jurisdiction with respect to the civil enforcement of such provisions and such provisions includes 610, doesn't it? Edwin P. Rome: Yes, sir. I think -- Potter Stewart: What does that mean? Edwin P. Rome: I think that there was an intent by Congress to create an administrative commission that would bring uniformity and a growing body of expertise to this problem. And thereby not intending to create a private right of action which would lead to a variety or diverse inevitably conflicting opinions because every District Court in the country would be engulfed by the possibility that every voter within that district as well as every shareholder of any corporation within that district would be able to go into Court and would not be barred by the fact that somebody else is going in on that same ad or material that is substantially identical to -- Byron R. White: I think if you petition for a -- you've raised questions here besides the Constitution -- Edwin P. Rome: Yes, sir. Byron R. White: But you don't want to subside it? Edwin P. Rome: Oh! I would hope that Your Honor would give consideration to all the issues that we have right -- Byron R. White: You have counter-elect on to win as long as you live? Edwin P. Rome: I want desperately to win Your Honor. [Laughter] Unless there other questions sir, I would reserve my time. Warren E. Burger: You may reserve the balance. Mr. Berger. David Berger: Mr. Chief Justice, may it please the Court. May I first answer Mr. Justice Stewart's question to respondent, to petitioner's counsel. It is true sir that the new Act uses the phrase “primary jurisdiction” and that is going to be a keystone of my argument. To the extent of which the new Act sheds any light cross or cross-eyed on this problem, it is in favor of the position which I advocate here today because as the Joint Committee Conference Report says and I've quoted it on page 35 of my brief. This was for the purpose of assuring that private citizens would exhaust their administrative remedies and as Congressman Bradimus (ph) put it first, which means of course, as a precondition to bringing a private right of action or cause of action. Now, may it please the Court? I disagree with my friend's characterization of what the lower court did here. The petitioner's argument proceeded it seemed to me as though the Court of Appeals for the Third Circuit had granted summary judgment in favor of the plaintiff below respondent here. It did no such thing. The Court of and may I say on the constitutional point as a footnote, the district judge never even mention the constitutionality much less passed on it or addressed the question. The Court of Appeals did not address the constitutional question so that there is before this Honorable Court now a decision which merely set remands the case to the trial court for a trial. There's not only is there an insufficient record with respect to the constitutional question, there's no record. May I further point out Your Honors that the posture of a case is extremely significant in addition to what I have just said, “My friend has correctly told you that the complaint averred a plan on the part of the defendants, Bethlehem Steel Corporation and its directors to use the vast resources of that corporation for the specific partisan political purpose of influencing the 1972 election for one of the candidates. That's what the complaint alleged and it said, using the good old lawyer's English inter alia, the actions taken pursuant to the plan included the ad which the petitioner have referred to. That ad was widely published throughout the United States. Pamphlets of Mr. Cort's speech, pamphlets were distributed and reprints of the speech were very widely distributed. It happens therefore, that because of the motion for preliminary injunction. We have not only the averments of the complaint but we also have admissions by the defendants of certain facts included within which are these publications which I have described. But I would put before Your Honors, the issue as follows. The first question is whether or not the complaint states a valid cause of action for violation of Section 610 of the Act. Secondly, whether the facts averting the complaint and already admitted make out a prima facie of a violation of Section 610; and thirdly, if Your Honor agrees -- if Your Honors agree with me on those first two questions, whether the Act Section 610 is unconstitutional facially or as applied by the Third Circuit. Your Honor, Mr. Justice Rehnquist was entirely correct in observing that the court below did not grant any relief nor did it emanate that whatever kind of relief that was requested by the plaintiffs in the District Court whether by way of injunction or otherwise was proper and correct and should be granted, all it said was let the matter go back to Judge Troutman for a full trial. I -- Lewis F. Powell, Jr.: Mr. Berger. David Berger: Yes, sir. Lewis F. Powell, Jr.: You mentioned and emphasized the size of Bethlehem Steel. Does not the Act apply to any corporation of any size? David Berger: Yes, sir. I emphasized that may I please Your Honor Justice Powell because I'm about to turn to the underlying policy of the statute and that is to prevent the application of vast resources improperly to influence the federal electoral process, that's why I emphasized. Lewis F. Powell, Jr.: Would the statute apply to the small one-man corporation with assets of a $1,000.00? David Berger: Yes, sir. Lewis F. Powell, Jr.: Would it apply to a nonprofit corporation? David Berger: I do not believe so. Lewis F. Powell, Jr.: Why? Is there any exception? David Berger: I don't find any exception but I find that this Court has put a gloss upon the interpretation that Mr. Justice Frankfurter has said in the UAW case. It's got to be active electioneering. I'm unaware of any nonprofit corporation which correctly could actively electioneer. Lewis F. Powell, Jr.: Are you familiar with League of Women's Voters? David Berger: To a certain extent, I am sir. Lewis F. Powell, Jr.: It may or may not be a corporation but it could be and if there large foundations in United States it might very well urge the public together to vote, would you considered that to come within the statute? David Berger: I would say that, if the League of Women Voters assuming it were a corporation and it sent these messages out to its own stockholders. If that what's Your Honors are telling me, then that is explicitly accepted by the Act, sir. Lewis F. Powell, Jr.: Suppose it ran an ad in the same publications? David Berger: If it could be arguably urge that that would violate, that's not this case. We do not have that case here Your Honor and I'm not asking Your Honors to make a decision on anything except the averments in this case. It may very well be that in that kind of case came up. There would be a reason for concluding that the Act, it was not within the Act's coverage but that's not this case. Warren E. Burger: To what extent is the content of the exhibits relevant to the case in its present posture in your view? David Berger: Only Mr. Chief Justice to the extent that they constitute admissions already of record but in my view of the case, it's the averments of the complaint that count. And these averments laid ad substance to these admissions add substance to the averments in the complaint. I must say, I quite agree with the opinion of the court below that taken in the context in which these ads, this speech, reprint of the speech, and the pamphlets appear that under all the circumstances, a jury and this was a request for a jury trial. A jury could reasonably conclude that this constituted act of electioneering for one of the candidates. Now, the argument made by the defendants in the court below proceeded on the theory that simply because the name of a name candidate was not mentioned there could be no violation of the Act. Nothing could be further from correct because as Chief Judge Seitz pointed out in the Third Circuit, you have to look at all the circumstances and if a reader of this material of average intelligence would perceive or could perceive that it was indeed a partisan proclamation on behalf of one of the two candidates, then simply because neither candidates name was mentioned would give no immunity from the violation of the Act or the coverage of the Act. Warren E. Burger: Would it be relevant to go and perhaps this from your point of view. We haven't reached this stage, yet. But would it be relevant at all that to inquire whether this content would be appropriate in a lecture of a political science professor? David Berger: Your Honors, anybody can say what was in these materials. Mr. Cort could say it. The corporation can say it. The shareholders can say it. The directors can say it. The officers can say that. All of this Act whose constitutionality you're asked to destroy today, thus, is to say that if they want to exercise that freedom of speech, let them use your own money and not the money of the shareholders. That's all this Act does. Now, may I proceed with Your Honor's permission -- Warren E. Burger: With the same -- the same might be said with reference to the lecture that I was suggesting by hypothetically that if the professor wants to make a particular speech. He can make it anywhere he wants but he can't make it -- he can't make it as professor in the lecture hall at the state supported university, is that -- David Berger: That maybe. But if the -- if -- if he will require to use of a different room and/or let say, if he -- if he had to make his speech on his own time instead among the school's time. I don't think that would call into play the First Amendment. Warren E. Burger: I take it your point is now that the content of this is really irrelevant in spite of what you said about its getting some support to your position? David Berger: Well, I wouldn't call it entirely irrelevant. I say two things about it. I say first, the case must be considered on the basis of the averments and the complaint, and the aver very clearly, and plainly, and give notice to the defendants under the federal rules that what is charged is precisely what this Court has said in Pipefitters for example, by Mr. Justice Brennan and Mr. Justice Powell, I believe agreed it to that extent would constitute a violation of Section 610. Now, what was admitted for the purpose of the preliminary injunction motion is relevant in showing that the complaint was not just something that was frivolous or thought up in somebody's head. There was serious basis for the averments. I may say another thing that in the posture of the procedure. In my judgment, what brought about the confusion here is that the lower court was under the impression. I'm talking now about the District Court that simply because the district judge denied the motion for preliminary injunction which was based essentially on the stipulation of facts which they admitted to that that foreclose the plaintiff from proving the whole case. As a matter of fact, pending before the Court of Appeals and still pending is the issue of the right of the plaintiff for full discovery and an evidentiary hearing. The district judge and the one paragraph order on page 887 denied the right to trial, denied the right to discovery, denied the right to evidentiary hearing, and simply summarily dismissed the case. Now, all the Third Circuit did was sent it back for trial. Now with Your Honor's permission, I would like to address the private cause of action point because I agree with Mr. Justice Brennan. That might be an easy way out but this Court has never been known to take the easy way out. Warren E. Burger: We'll, it's rarely -- Lewis F. Powell, Jr.: Do you -- Warren E. Burger: It's rarely known to decide constitutional questions from the -- David Berger: That's right and I would not ask Your Honors to decide it. I don't think it has to be decided today or in this record. Lewis F. Powell, Jr.: Constitutionally? David Berger: Need not be decided on this issue. All I ask -- Byron R. White: Assume we disagree with the other side on -- in private action -- David Berger: I think you should disagree with them or not -- Byron R. White: I know but -- David Berger: And in that event, I think you should agree with me that the averments of the complaint and the record as it is showing off to go the fact finder to determine whether there's been a violation of Section 610. And that kind of interpretation of the Act is not unconstitutional because it amounts to say that the Act is unconstitutional on its face. Byron R. White: Oh! Yes. But to solicit the -- I gather this Third Circuit held that if you prove what you claim, you can prove -- David Berger: Right. Byron R. White: That the 610 may prevent it. David Berger: I think that's correct. Byron R. White: Well, then they said that that's constitutional for -- David Berger: I did know that they didn't pass on --- Byron R. White: No. The reason -- David Berger: The Third Circuit didn't reach that point. They said, we're sending the whole thing back to Judge Troutman. Byron R. White: Because they'll be able -- they said it's not unconstitutional on its face? David Berger: They didn't reach the constitutional point Your Honor with the due deference, sir. Byron R. White: Well, what about it? How, how about the question of just overbreadth on it? David Berger: They didn't get into that. They got into the -- the real gist of it was the private cause of action, may it please the Court. And they said that the complaint avers a valid cause of action under 610. Byron R. White: Suppose you're right about all that? David Berger: Yes. Byron R. White: Sometime the constitutional question has got to be decided? David Berger: Well, I pretty know they didn't. Byron R. White: If we were to agree with you that they were right as far as they went. At least, shouldn't we sent it back and say, “Now, you address the constitutional questions?” David Berger: I think -- Byron R. White: Before you go trial? David Berger: I think -- Byron R. White: Because isn't there a facial claim? David Berger: Well, then I'm prepared to argue that it is constitutional. Byron R. White: I would think you would? David Berger: And I would like very briefly with Your Honor's permission, first, to cover their private cause of action. I heard the Government lawyer this morning gave his analysis of the cases. I'm relying on the same cases and they began with Texas and Rigsby. And Mr. Justice Stewart wanted to know when that was decided. It was 1916 Your Honor. Yes, sir. 241 U.S. Potter Stewart: The Safety Appliance Act? David Berger: Yes, sir. And my analysis of these cases going right on through case in Borak, Wyandotte, Bivens, and T.I.M.E. and Amtrak is this. It goes back to what Mr. Justice Pitney said in the Rigsby case, that where there is a federal statute and where has been a violation of that federal statute which imposes standards of conduct. This Court will fashion a remedy to write that wrong and there's nothing more, nothing startling about that. That's the old common law and indeed Judge Kirkpatrick in the Garden case, the Eastern District of Pennsylvania. In 1946, decided the Landmark decision on whether or not a private person could bring a private cause of action for violation of Section 10 (b). Now, that's heavily in grand denial law. But he addressed that question and went right back to Rigsby and cited the restatement of Torts. That's all it's involved and -- William H. Rehnquist: But aren't the federal court's jurisdiction isn't to really create common law, the way the state courts says? David Berger: No, quite aggrieve Mr. Justice Rehnquist. But this is base on a violence of federal statute's act. William H. Rehnquist: But you referred to it just like the common law. It isn't just like -- David Berger: No. The principle of the common law that where there is a violation which causes a wrong a corporal fashion and remedy, that's all I meant. Now, as I analyze these cases, they come down to this that the allowance that the Court will allow the person harmed by conduct which violates a federal statute which imposes standards of conduct. If the allowance of the private cause of action will effectuate the underlying purpose of the statute and there's nothing in the statute or the legislative history to preclude that. That's my analysis. Now, -- Warren E. Burger: Even if that means that you got to between 4 and 500 district judges who might be dealing separately and independently with the question? David Berger: I believe sir that the federal judicial system is capable of bringing uniformity in that kind of situation. And I think that's one of the basic reasons why the private right of action should be recognized. Warren E. Burger: Well ultimately, we bring the uniformity here, don't we? David Berger: Exactly. Yes, sir. Now, -- Warren E. Burger: I think that's quite a lot of expended effort before it happens. David Berger: Your Honor Chief Justice, a lot less effort than if you let it just go to 50 states. Now in CIO in 335 U.S. 1948, this Court told us what the policy of the Congress was and what the purposes of the Act 610 and its predecessors are. And there are twofold of an equal importance. The first is to protect the federal electoral process and the second equally important, to protect the shareholder or later a union member against the use of the company's funds which he contributed toward the union or those for partisan political purposes without the consent of the shareholder or the union member. Those are two congressional purposes which are involved. I -- Potter Stewart: Suppose, it wouldn't be hard to either discern from legislative history or to infer from one's reasoning processes that the purpose of almost any federal criminal statute and of which there are hundreds if not thousands. And I -- it seem to me that tests that you told us, you submitted to us is appropriate test would result in a private cause of action based on almost every criminal statute in 18 United States Code? David Berger: I -- Your Honor, I -- with all due deference I disagree. First, -- Potter Stewart: I hope you do. But I -- tell me about -- David Berger: First, we -- we're deciding this case that I'm going on a basis of the cases that came before this Court. It is not every criminal statute. It is a particular criminal statute had come here and I only analyze then. Potter Stewart: Yes. But let's apply your test. You have this very broad test of yours, you can't find anything a legislative history to the -- to the contrary that would militate against -- David Berger: Well, let me -- let me explain why -- Potter Stewart: A civil -- being a civil cause of action. Well, then why isn't they want to -- David Berger: Because in most instances the criminal penalty is adequate. In this, it is not. Potter Stewart: But who's to judge that? David Berger: This Court. Potter Stewart: You mean if it's if one dollar -- one year penitentiary offense is not adequate but if it is 10 years it is and then there's no civil cause of action? David Berger: Well, I mean that -- I mean what the specific right is that's violated. I can't take it on -- Potter Stewart: Let the Congress to say what the penalty, if it's criminal penalty -- David Berger: That's right. That Congress has done so -- Potter Stewart: And having done so? David Berger: And this Court -- Potter Stewart: By definition, it's adequate because that's what Congress has said? David Berger: Only to that extent. But if the underlying purpose of Congress can -- will be served only if you allow a private cause of action. That's when you allow it and that's what I'm arguing for. And I would like to explain why in this case you have to allow it. The criminal penalties here at $10,000.00 fine, that's not going to help the shareholder. That's a fine levied against its own corporation. I submit that the way you're going to satisfy the second purpose. Which by the way goes back to 1906, when President Theodore Roosevelt send his message to Congress and asking for the first of these statutes, and then this had been uniformly recognized by the three co-equal Branches of our Government, the co -- the Executive, the Legislative, and this Court itself. And I say that, the only way you can effectuate this very important purpose. We're not here dealing with this -- with just an ordinary run-of-the-mill criminal statute. The very foundation of our democracy, our Government has it exist depends on the purity of the federal electoral process. The very foundation of our system of an enterprise and business depends upon the recognition of what this Court has said is the moral right that officials of a corporation should not misuse the money of the corporation for purely partisan political purposes. That is the reason why I submit that in this case it was correct to have a private right of action, not only correct but absolutely necessary. Now, may I -- Warren E. Burger: Let's assume for a moment right on that that a corporate officer is found guilty of violating statute on 11 counts and the district judge imposes an $110,000.00 maximum penalty available. Do you suggest -- David Berger: The Government -- Warren E. Burger: Do you suggest that the stockhold -- a stockholder would not have a remedy to bring suit against him to make him reimburse the corporation for the fine imposed for his misconduct? David Berger: This is what we're doing in this case. Warren E. Burger: Well -- David Berger: We're saying right now, Your Honor -- Warren E. Burger: Not quite. David Berger: Well, but do that -- Warren E. Burger: You went cir -- you went to short circuit that process? David Berger: No, with due deference Chief Justice. We're saying, let the criminal process proceed but while that proceeds, let the stockholder make the people who violated at the law make restitution to the corporation. Warren E. Burger: At whose instance are you suggesting the criminal process proceed? David Berger: That's up to the Attorney General. Warren E. Burger: Well, but you wanted to go back to the district judge and -- David Berger: No, not for the criminal process sir. All I want for -- the -- Warren E. Burger: The present process? David Berger: Well, that's the district judge is the forum in which this will be tried. Warren E. Burger: I'm addressing my question to you on the basis of saying your statement that there is no remedy for the stockholder. There's quite a good remedy ultimately, isn't there? David Berger: Only, if Your Honors will agree with the Third Circuit that there -- this is an appropriate case to say that the private cause of action exist. It's just like in case in Borak. The SEC is the expert commission. There were criminal penalties Your Honor provided in the Securities in Exchange Laws, but in case in Borak, in Deckert, in the Affiliated Ute case, and the Superintendent Banking. This Court has constantly recognized that private stockholders have the right to bring actions for damages and indeed, if I could refer you to the brief that was argued this morning by the SEC itself. They recognized the validity of the principle I'm arguing for and they said that, where you have a kind of statutes such as this which prescribes standards of conduct. Its appropriate to have -- to recognize a private cause of action because that will stimulate the enforcement and this quarters repeatedly held that the private access by private stockholders is one of the most effective means of getting enforcement of that law. William H. Rehnquist: But what about the statute that makes it a crime to rob a federally insured bank. Do you think that bank has a civil action in the District Court under federal question jurisdiction to recover the money that was taken? David Berger: I would have to reveal that it might very well, but I'd have to reveal the entire history of the Act and see what the underlying purpose was. Now, -- Lewis F. Powell, Jr.: Mr. Berger. David Berger: Yes, sir. Lewis F. Powell, Jr.: The Third Circuit found that this right to be implied to register voters as well as to stockholders. David Berger: I don't think we have to go that far Mr. Justice Powell. Lewis F. Powell, Jr.: Well, I won't -- I would like to know your view of the statute. David Berger: Well -- Lewis F. Powell, Jr.: There are 75 to 90 million registered voters so the Third Circuit's opinion, it says that that many people could bring this suit? David Berger: Well, Mr. Justice Powell, I say and my position is that we only have to sustain Mr. Ash's right because he is a stockholder and stockholders have not drawn out to federal courts yet. Lewis F. Powell, Jr.: You would say that -- David Berger: Sec -- second, excuse me sir. I'm sorry. Lewis F. Powell, Jr.: You're defending here only the stockholders, right? David Berger: At this point, I say Your Honors. I only had to uphold that. We're not -- you don't have to confront the issue of registered voters. If you ask me personally, my candor would compel me to say that I think they do have the vote but you've got nothing to worry about because they do have a right cause of action. You have nothing to worry about. Your Honors are well aware of the tremendous cause of federal litigation and if you think that suddenly 200 million voters are going to rise to the federal courts and bring suits, believe me that's not going to happen in the real world. Byron R. White: If you had recovered any recovery from these people in the state courts? David Berger: I think that there is that possibility but I don't think that's -- Byron R. White: Can you go into your state courts and say these people have violated the federal statute in giving away this money? And that we want to recover it from them? David Berger: I think that is an arguable position Mr. Justice White but I believe sir that that -- Byron R. White: Well, is that -- David Berger: That would not be adequate. Byron R. White: You're an exp -- I didn't mention my question to you. My question to you, you're an experienced -- David Berger: Yes, sir. Byron R. White: Pennsylvanian lawyer -- David Berger: Yes, sir. Byron R. White: I just wondered if you would want -- David Berger: I would have to say that under Delaware law sir, that the doctor of ultra vires would permit such a state suit. But I don't think that -- Byron R. White: Now, that's an ultra vires? David Berger: Yes, sir. Byron R. White: Does that dependent at all on the application of federal statute? David Berger: It would -- it does. Byron R. White: It does, yes. David Berger: Yes, sir. Byron R. White: And so, there is a remedy in the state courts under the state law to vindicate his right. David Berger: Possible but it's inadequate in my submission that -- Byron R. White: Well, it's not only possible but you just said that its there. You -- David Berger: Well, I said that I believe that the state law could remedy it to a certain degree but I also agree suggests that you're not going to get uniformity. This involves a question of federal law and the expertise of a federal judiciary should be employed. In addition to which, you have a very serious problem that in most states, judges are elected. They're subject to the political process. One word if I may on Amtrak, I believe Amtrak and time fall on the other side of the line on private cause of action. I agree with Your Honors decision on Amtrak. In Amtrak, you did not have a statute which provided for recognized standards of conduct. You had a completely new scheme, a concept for running a written -- a National Rail -- Passenger Railroad. Now, in that context, not only with it not effectuate the purposes of the statute to give passengers the right to get discontinuances. It would have defeated the purposes of the Act. Because if every passenger could run in and get an injunction against the discontinuance, the --you would not be able to achieve that kind of rational rail passenger service including rational discontinuances. That is the reason why Amtrak falls outside of the line of cases without different from them, without overruling them, and why it is consistent. It's just totally distinguishable. Finally, I suggest that the case on its face, the statute on its face is constitutional. There is no restriction contrary to what Mr. Rome said on any free speech whether be the corporation and in our brief, we have pointed out how very carefully this statute was drawn. This Act, the 1971 which we're dealing with follows Your Honors' opinion in Pipefitters, Mr. Justice Brennan. Its and it codifies precisely what the Court has said on the traditional and constitutional limits. The federal government has very broad power to regulate federal elections particularly of the President and members of Congress. In doing so, the only question is -- was -- were reasonable means employed. I submit that when you have a narrowly drawn statute which allows the corporation to say anything it wants to its own stockholders and their families, including partisan political thing which allows the corporation to use its money, to solicit funds, and to administer separate segregated fund. And which allows nonpartisan, get out the vote and all that sort of thing but says that if you want to engage in active electioneering, you have to use your own money or get the segregated funds from voluntary contributions of shareholders. That doesn't present this horrendous picture which the petitioners try -- Lewis F. Powell, Jr.: That -- that's your answer to the constitutional argument? David Berger: Yes, sir. Lewis F. Powell, Jr.: That's you ought to do? David Berger: Yes, sir. And I say on the Fifth Amendment that everything that was done here has a rational basis to apply to the great aggregation of wealth of the corporation and the unions, and that there is no necessity to include all these other elements like the League of Women Voters and others in the coverage of the Act. I don't think there's any violation of Fifth Amendment at all. We submit that the Court of Appeals should be affirmed no matter go back to the District Court for full trial. Thank you, Your Honor. Warren E. Burger: Thank you, Mr. Berger. Mr. Rome. Edwin P. Rome: With Your Honors' permission, I would bring to your attention the fact that Judge Aldisert had earlier commented in the same way that Mr. Justice Stewart has suggested to imply a private right of action here he says, is to suggest that for every written volume of Title 18 United States Code. There is an unwritten volume of Title 28. In actuality, contrary to what Mr. Berger has said, the congressional history of this legislation shows that the Chairman of the House Conferees, Mr. Hay and this appears on page 32 and 33 of our brief, pointed out that there was an intention to assure that civil suits are not misuse in a partisan manner and that the complex and sensitive rights and duties stated in the Act are administered expertly and uniformly. And therefore, the private civil action was created via the Commission under Title 3 but not in Title 2. In actuality also, I urge upon Your Honors the recognition that what has been the heart of this case from the beginning has been, the speech, the ad, and the folder and that alone. There has been no doubt or dispute about that even to the point that my friends on the other side sought to have the Third Circuit rule as a matter of law on summary judgment that those documents in and of themselves constituted a violation. They weren't seeking to bring in any other plan or any other activity on the part of the defendants. I would also point out that to the extent that there is discovery sought here. I think that that is a blatant intrusion into First Amendment areas because you would -- under those circumstances the inquiring of the defe -- individual defendants here about their political ideas, their views, their party membership which in our submission is absolutely impermissible under the First Amendment. And in actuality, it is the fact that the district judge avoided coming to the constitutional issue only because he said, “that there was a mandate to narrowly restrict the interpretation and the definition of the expenditure so as to avoid that result. To enjoin the expenditures made by Bethlehem in connection with the advertisement, the speech, and the folder would prevent a corporation from seeking an honest campaign in election which is adverse to its interest. Thereby giving rise to grave First Amendment issues. That is what happened in the District Court and also the Court of Appeals touched upon the constitutional issue that and that appears at page 108 of the record. Thank you very much, sirs. Warren E. Burger: Thank you gentlemen. The case is submitted.

Warren E. Burger: At 1 o’clock, we will hear arguments in Matthews against the United States. Mrs. Shapiro, you may proceed whenever you are ready. Harriet S. Shapiro: Mr. Chief Justice, may it please the Court. This case is here on direct appeal by the Government from the decision of a Three-Judge District Court in the Southern district of Florida. Like the preceding case, it involves the challenge to the Federal Government’s power to classify on the basis of alienage. But this case challenges an illegitimate classification, which limits eligibility to a federal health insurance program for the elderly, Medicare part B or supplementary Medicare and medical insurance. Part B is part of the social security system. The major part of that system is of course old age and survivor's insurance. Eligibility for those benefits depends on age and past work and covered employment. It is equally available to aliens and citizens. This basic retirement insurance is supplemented by Medicare parts A, B. Part A provides hospitalization insurance, and B provides insurance covering certain other medical costs such as doctor’s fees and medicines. Since part A and B were intended to supplement the basic retirement systems, both are made available to anyone, alien or citizen who is entitled to social security benefits or indeed to railroad retirement benefits. Appellees’ complaint is that they are denied Equal Protection because sub part B is also available to citizens without regard to their work and covered employment, but to non-covered aliens, only if they have been admitted for permanent residence and lived her for five-years. Our principle answer to that complaint is that Equal Protection analysis is simply not relevant in considering the constitutional nullity of federal statutes, which distinguish between citizens and aliens in their status as aliens. And if Equal Protection analysis is relevant at all, the scope of judicial view in this case is extra ordinarily limited. Certainly, no more than the traditional rational basis test is appropriate. Our arguments along these lines were thoroughly discussed this morning and I do not plan to go over that ground again. Instead, I would like to focus on the Medicare statute and show that if a rational basis test is to be applied, the statute is clearly constitutional. But first, I want to speak briefly of the jurisdictional issues in light of this Court’s recent decision in Weinberger versus Salfi. The appellees are three aliens who brought this suit as a class action to challenge the Secretary’s refusal to enroll them in Medicare part B. Clara and Diaz are Cuban refugees who are allowed to enter the country in 1971 under special Immigration Act Provision permitting the temporary entry of people in emergencies. They are thus parolees and have not under the specific terms of the Immigration Act been admitted for permanent residence. Espinosa is a Colombian who was admitted for permanent residence in June of 1971, thus, none of the appellees are entitled to enroll simply on the basis of their residence in this country, as they would be if they were citizens. Clara and Diaz applied for enrollment. They were denied. Without asking for a rehearing, they brought this suit for judicial review of the denial, claiming jurisdiction under 42 U.S.C 405 (g). This of course is the same jurisdictional basis at it was involved in Salfi. Espinosa joined the suit and then filed a claim. The Three-Judge District Court found that the administrative exhaustion required by 405 (g) would be futile. It then certified as a class, all immigrants who have been or will be denied enrollment in sub-part B because they are not aliens lawfully admitted for permanent residence who have lived here for five-years. The Court also established subclass, which was represented only by the appellee Espinosa consisting of those who have been or will be denied enrollment solely because of their failure to meet the five-year residence requirement. William H. Rehnquist: Was that certification without regard to whether the members of the class had individually made application to the socials, the secretary or its delegates. Harriet S. Shapiro: Yes, necessarily because it had included those who will be denied. There is no, because that was before Salfi, there was no indication. The District Court then held the entire alien eligibility requirement for Medicare Part B unconstitutional and it permanently enjoined the Secretary from relying on that requirement to deny enrollment to the class members and after a short stay, the Order became effective in August 1973. So, the entire class was enrolled and has been insured since that time. As in Salfi, there was no allegation that the class members had even filed an application with the Secretary much less that he had not rendered any decision filing or otherwise, review of which was sought. Thus, as in Salfi, the class was improper. Speaker: Mrs. Harriet, if you could leave out the will be part of the class and just limit it to the have been, would there be anyone in the class other than the named plaintiffs? Harriet S. Shapiro: The record does not show --. Speaker: It would not; we have to assume as to them that there had been applications, which were denied? Harriet S. Shapiro: Yes, there certainly could have been, but there certainly was no -- the District Court made the determination themselves that itself that further review by the Secretary would have been futile and Salfi indicates that the Secretary must make that determination. Speaker: What I really want to know is, is your only objection of the class to the will be portion of it or do you object anything more than that? Harriet S. Shapiro: I do not really think that the class issue is a problem in this case. For one thing, because there was no stay, the class members have been being paid or have been enrolled and of course, the decision of this Court, because this Court has jurisdiction because the District Court held the statute unconstitutional same ways as it was in Salfi. The Secretary has determined as in Salfi again that there was jurisdiction because there was a final decision over Clara and Diaz, it was final administrative determination as to Clara and Diaz and this Court’s determination will bind the Secretary for the future as to everybody. Speaker: I thought you would argue with in any event the junction was not proper? I gather at least two of this three were proper before the district. Harriet S. Shapiro: Right. Speaker: But even assuming that they were entitled to relief, I gather your submission is that the only relief individually to have the Secretary’s termination reverse, is that right? And that under no circumstances where those two individuals entitled to injunction. Is that right? Harriet S. Shapiro: Yes. Well. Speaker: But suppose we disagree with you as to those two in saying that the three-judge court was right and in this circumstance what will we do, we affirm the injunction or not? Harriet S. Shapiro: As to those two. Speaker: This only concludes that the District Court correctly found the statute unconstitutional. In the cases of those two individuals Diaz and Clara, then what do we do? Harriet S. Shapiro: I do not think that we object so much to the form of the order if the statute was unconstitutional as to those two then they properly enrolled and -- Speaker: But the injunction and I gather is against the Secretary enforcing that provision as to anybody. Harriet S. Shapiro: The injunction is to his enforcing it specifically against the class members. Speaker: I mean you are content with that if be affirmed? Harriet S. Shapiro: As a practical matter, it does not really make any difference in this particular case. Our main point, I suppose on the class action aspect is, that the error, because the Order was not stated, the error has cost the Government about $2 million, something over $2 million for 1975 alone, but essentially that is water over the dam at this point. Speaker: But is that money been paid out on application, for benefits? Harriet S. Shapiro: The way that figure was arrived at, the Government pays $750.00 a month in premiums to match the $670.00 a month that is paid by each alien. And then at end of the year, the Government makes-up any deficit in Trust Fund that applies to this particular program and the total cost of both benefits and the premium payments and the make-up is $10.00 each. Speaker: What procedure by which the Government in order has to match, the aliens, the particular aliens except. Harriet S. Shapiro: That is the statute. Speaker: I know but how does the alien bring to the attention of the Secretary that there is a duty to match that 670. Harriet S. Shapiro: That is by virtue of his enrollment. Speaker: I see, just enrollment? William H. Rehnquist: Well, Mrs. Shapiro, I am still not clear, did the class include some persons who had in the past been denied what the District Court felt they were entitled to but who had not in the past made some sort of application to the secretary? Harriet S. Shapiro: The class definition is on page 50 and 51 of the appendix and it includes all immigrants residing in the United States who have attained the age of 65 and who have been or will be denied enrollment in the Supplemental Medical Insurance Program. So it does not say anything about when they have been denied. William H. Rehnquist: Nothing about whether or not they -- this action was brought within 60 days. Harriet S. Shapiro: Nothing about that, no. William H. Rehnquist: Well you object on that grounds then I take it. Harriet S. Shapiro: We think that the class was improper, yes on that ground. What happened after the state was dissolved, was that the social security, I mean ATW paid under the order everybody whose applications were in the pipeline at that time. They did not go back and pick-up people who had been denied more than 60 days before. I think when you are thinking about the retro-activity issue here and the whole class action issue, it is kind of important to remember that what is involved here is an application and then payment of a premium by the applicant and insurance from that point forward. So that to go back and say when you enrolled and we denied you but we are going to reopen it and then you have to pay us the monthly premiums and we get insurance for period when you may or may not had been sick. It is rather peculiar kind of a retro-activity problem. Warren E. Burger: You would not get many integers voluntarily would you? Harriet S. Shapiro: Not unless I have been sick. The situation as to Espinosa is little more complicated. He did not apply for enrollment until after he joined the suit. Because of the litigation and the District Court's injunction against denying him enrollment, his application has in fact never been adjudicated. It is rather hard to see how there kind have been a final decision as to him for meeting review under 405 (g). But the appellees point out that the secretary has nevertheless in effect stipulated that his claim had been finally denied. That may not be an entirely accurate reading of the stipulation originally made. But we do agree that the District Court and the parties assumed before Salfi that Espinosa’s application was to be treated as if it had been finally denied by the secretary. The secretary has concluded that but before the injunction, the application would have been denied solely because of Espinosa’s failure to meet the alien inter provisions. As a technical matter, we do not believe that the stipulation here cures the lack of any decision, not alone and a final one. But the circumstances of this particular case, especially the fact that it was litigated before Salfi may justify reading this stipulation liberally and concluding that the secretary has now foreclosed from denying that there had been a final denial of Espinosa’s claim sufficient to satisfy 405 (g). Perhaps the most important point here is the wisdom of Salfi’s emphasis on the need for final administrative decision. Because when adjudication of Espinosa’s application was interrupted, there was some indication that he was entitled to enroll because he had worked in covered employment. In fact, he had not, but Salfi recognizes that 405 (g) and H protect the Courts from being asked to consider constitutional issues until that kind of factual question has been finally settled administratively. It is important for the Court not to retreat from that principle here. Speaker: Well that is jurisdictional. Harriet S. Shapiro: It is jurisdictional. Speaker: If it is, unless stipulation the stipulation can really be read as having been a denial by the secretary, how can the District Court have jurisdiction of the Espinosa? Harriet S. Shapiro: Well, the record on the stipulation is really quite unclear and it is hard to read it as a stipulation that there has been a final denial but I as I say, I think that it could perhaps be done. And we would not object in this case, like the stipulation in that. Speaker: The effect to that Mrs. Shapiro be then like the efforts to confer jurisdiction by a stipulation? Harriet S. Shapiro: No, because what the stipulation -- what we would be doing would be reading the stipulation as a stipulation that there was a final decision. Speaker: Which is the factual premise -- Harriet S. Shapiro: Yes, yes. I turn now to the merits. This case – Speaker: Does it really matter, merits are here anyway and the other two cases are not there, in the Clara and Diaz cases. Harriet S. Shapiro: They are -- Speaker: Whether we reach it or not in Espinosa. Harriet S. Shapiro: The merits are either in Clara and Diaz that if Espinosa is out of the case then you have somewhat more leeway in how you – which ones of the various issues, there are that you can attack, you can decide and settle the case. This case involves both an alienage classification and social welfare legislation. The Solicitor General explained this morning, why we believe that alienage classifications of the sort involved here are simply not subject to attack on Equal Protection grounds. He argued alternatively, if they are subject to such an attack, only the most attenuated rational basis test is appropriate. And a narrow rational basis test is also appropriate here because the case involves social welfare legislation and Salfi is the most recent expression of that principle. In that connection, I want only to emphasis that under the test reaffirmed in Salfi and as Mr. Justice Stewart pointed out this morning. This Court need not consider whether the asserted justification actually motivated Congress in making the classification nor whether a different classification would have served equally well. The enrollment limitations here are rationally related to both legitimate immigration and social insurance policies. First, it is rational in terms of both policies to treat aliens lawfully admitted for permanent residence differently from others who have not expressed their intent to remain here indefinitely and have not submitted to the screening necessary to establish their right to do so. That distinction, we believe is self evidently reasonable when applied to most non-immigrant aliens. People like illegal entrants, diplomats, visitors, members of cruise of foreign ships. Certainly, Congress is not constitutionally required to provide subsidized medical insurance to such temporary residents in this country just because it does so for citizens. It is also reasonable for Congress to conclude that parolees like Clara and Diaz should be treated like temporary residents until they have been admitted for permanent residence. They were given refuge in this country without prior screening because of emergency conditions. The statute under which they entered specifically requires their return to the country from which they came when the emergency ends. They apparently wish to remain here permanently since they have applied for adjustment of their status to that of permanent immigrants, permanent resident immigrants. If they meet immigration standards, their status will be adjusted retroactive to the time at which they entered. But until that has been done, they are here at the discretion of the attorney general for the duration of the emergency and thus can reasonably be considered more like temporary visitors than permanent residents. The five-year residents requirement is also a rational expression of immigration policy. It is the essence of Congressional immigration policy to decide the extent to which immigration will be encouraged. A person considering immigration will normally consider the cost of living in this country. Part of that cost is the cost of medical care. If subsidized Government insurance is available, the cost will be lower than if it is not. If it is available after five-years, the cost is less than if it is not available at all. Immigration of the elderly has thus encouraged by making such insurance available to them but not encouraged as much as if it were available immediately on entry. Even more explicitly, the Immigration Act expresses the policy that aliens who are likely to become public chargers are not to be admitted as immigrants. The practical effect of that requirement for immigrants over 60 which is of course the people that are involved in the Medicare eligibility provision, is that they must either be economically independent or have someone here who will assume responsibility for their support. But the Medicare limitation simply defines the extent of that support obligation. So the effect of the immigration statute and the Medicare statute together is the same as if Congress had provided explicitly in the immigration Act that elderly immigrants must undertake to provide for their own medical care for five-years, either through private insurance or otherwise. Congress could certainly have done that directly through provisions in the Immigration Act. Congress has an equal right to do it indirectly through the Medicare Act. We believe this Court really need go no further than that to reject the petitioner’s claims. But the alien eligibility limitation also reflects valid social welfare policies. The fact that Medicare part B is available to all citizens over 65 means that it supplements all the retirement systems in the country. Principally, of course social security, also the Railroad Retirements Act, the civil service and even the military retirement provisions. Medicare cannot reasonably be considered apart from the systems, all our programs to provide for the elderly in their retirement years. All reflect a federal responsibility that to those who have contributed to the country over there working years. All are based in part on the individual contributions of the workers and impart on taxes. Since Medicare part B supplements all of them, the federal contributions reasonably come from general revenues rather than from taxes on individual employers, as I do in the individual systems. In any case, the mechanics of funding should not obscure the fact that what is involved here is a supplement to retirement systems. Supplementary medical insurance like the systems, which it supplements, is made available in recognition of past contributions to the economy. It is perfectly true that resident aliens like citizens pay taxes and contribute in many other ways to our economy. Citizens ordinarily do so over their working lives and when they become 65, they may enroll in Medicare part B. Congress concluded that an alien who has made similar contributions for only five years may also enroll in Medicare part B at 65. That is surely is not discriminating against the alien in the allocation of tax funds. The District Court was troubled by the fact that chronically indigent citizens who may never have paid taxes are contributing in any way to the economy are entitled to Medicare, while aliens like appellees are not. There are two answers to that concern. First, as Salfi reminds us, Congress may use broad classifications to avoid the administrative burden of case by case determinations of eligibility. Since entitlement to Medicare is fundamentally based on entirely to retirement benefits and citizens are far more likely to meet this requirement than aliens who are admitted within five years of their application. It is reasonable to require proof of eligibility only of the aliens and not of the citizens, even currently indigent citizens. But there is another justification for permitting the enrollment of indigent citizens and not recent immigrants. Both provisions protect State Welfare funds. The enrollment of indigents means that federal funds pay medical expenses, the States would otherwise have to pay. Denial of Medicare to recent immigrants discourages the entry of those most likely to become State charges. The fact that the immigration laws have the same effect with regard to the immigrants simply means that the two Acts are consistent. It certainly does not mean that either is irrational. Appellees emphasize that an elderly alien's need for subsidize medical insurance is likely to be as great as that of an elderly citizen, that is undoubtedly true. But they also claim that the only purpose of Medicare part B is to provide medical insurance to those who need it and that is not true. Legislative classifications in the social welfare field almost always are the result of many considerations. But no social welfare classification can be made without balancing needs against costs and these will vary from statute to statute. This of course means that the classifications made will vary from statute to statute. For instance, in the program providing for supplementary federal welfare payments for elderly, blind and disabled indigents, Congress provided more generously for aliens than it did in the Medicare statue, and there it included all aliens who are in this country under color of law that the needs and the costs that were being evaluated in the welfare statute that issued there were different. And so a different balance was struck. This Court has always recognized that making that balance is a legislative function not to be disturbed so long as there is a rational justification for it. Here, the underlying justification is that the needs of those with a substantial relation to the country are recognized. But the needs of those whose relationship is essentially temporary are not. Congress drew a line which is reasonable in terms of that justification. The District Court is changing of that line is now costing the Government over 2 million dollars annually. And that price would probably grow up in the future. Congress frequently reevaluates Medicare and it may someday decide that appellees needs to justify that burden on the treasury. It has not done so yet and that is not a decision for this Court. I would like to reserve the remainder of my time. Warren E. Burger: Mr. Rogow. Bruce S. Rogow: Mr. Chief Justice, May it please the court. The argument as to jurisdiction, is contained in our supplemental reply brief and I think after hearing Mrs. Shapiro this afternoon. I think we are basically in agreement, there is clearly jurisdiction as to Diaz and Clara and as I read Mrs. Shapiro’s position, there is a concession that the Government did stipulate to the finality of the decision regarding Mr. Espinosa and that stipulation as to finality. Therefore, means that the Court has jurisdiction as to Espinosa. The class matter, I think is not really very important if the statute falls in this case as to Espinosa than it falls as to everyone. But I think for the reasons that I have pointed out in my supplemental brief. If you read the class as those who have been denied, then Mr. Espinosa and others who have applied and been determined not eligible would be included. I think the important part of this case obviously has to do with whether or not Congress can treat aliens and discriminate against aliens in the way that the Government would like to have us believe. The Government attempts to cast this case as one in which Congress has exercised its plenary power over immigration and under the theory that the Government advances, this statutory resident’s requirements in this case are somehow linked to the plenary power over immigration. They encourage or discourage immigration. If the Government is right, everyone of the 200 and some odd statutes that they have listed in their appendix to the Wong brief must then be read as somehow encouraging or discouraging immigration. With nothing more, no other evidence should substantiate that merely because, they classify based upon alienage. What is fatal to the Government’s theory is that, that would require the Court to indulge the assumption that all of these statutory classifications based upon alienage are somehow attempting to regulate admission or exclusion of aliens and I give the Court one example, which I think, underscores the fallaciousness of that position. Mrs. Shapiro refers to the supplemental security income statute that is titled 42 United States code section 1382. In that statute which provides a, to the aged, blind and the disabled. The Government has not drawn a line that precludes aliens from receiving those benefits. People here under color of law, conditional entrance for parolees can receive those benefits using the Government’s logic. That would mean that that statute in some way is seeking to encourage immigration. Obviously not. At the most, what can be said for these statutes is that when they classify based upon alienage that classification perhaps is in someway related to the benefits that the Government is extending in this case for instance. I think quite frankly what the Government is doing, what the Congress has done in this classification is, it has said that aliens with some ties to this country would be entitled to certain welfare benefits, certain health care benefits. It has not said this is encouraging or discouraging immigration, it is not related at all to immigration and I think that if one then strips the constitutional cloak of immigration power, of plenary power from this case, we come up with the statute that in many ways resembles the statutes tracked down by this Court in Graham Versus Richardson. Statutes, which provide important welfare or health care benefits and then discriminate against a class of people, aliens. Warren E. Burger: Well, what would you have to say about class of people who are clearly illegally in the United States, smuggled in one way or another which various reports have indicated a very large number of people, whatever the figure maybe. Bruce S. Rogow: Mr. Chief Justice, those people certainly would not be included within those who would obtain benefits under the statute, they are not people whom— Warren E. Burger: Then they are discriminated against, are they not? Their pains and their needs are the same, are they not? Bruce S. Rogow: But those people are not in the country with any kind of legal status at all, they are illegal. Warren E. Burger: Well, then your people should talk about here now, are here by the status but qualified by the very process that admitted them, are they not? Bruce S. Rogow: Only Diaz and Clara, I believe you are speaking of, Mr. Chief Justice. That Mr. Espinosa is here lawfully admitted for permanent residents under the meaning of the immigration law. Warren E. Burger: I am speaking of the other two. Bruce S. Rogow: Yes sir, they are here in a special category. But it is certainly not the same category as those who sneak in the country and those who jump shift and come into the country, their category is one. Warren E. Burger: Would you put a considerable emphasis on the needs of people which you cannot distinguish between the needs of the illegal alien and one who is here under conditional grant, can you? Or one who is here with no conditions at all? Bruce S. Rogow: No sir, that the needs for medical care maybe the same but if we use the Government's position which is that there is some requirement that Congress can impose there being some tie to the country, those people could legitimately be excluded. People who fall in what is known as a non-immigrant categories, visitors, visiting journalists who are just on an assignment to this country, those people have no ties to the country and perhaps we would agree that it is legitimate for Congress to draw a line in that way. It is rationally related to the purpose of the program which is to provide medical care to those who have some ties. Warren E. Burger: What are the ties of this category of people who maybe ejected from the country when political conditions in their point of origin permitted? The ties of such people, they are temporary but the time frame is merely longer, is it not? Bruce S. Rogow: No. I do not think the ties – Warren E. Burger: Why are they different from a journalist who is over here to spend six months studying our welfare system? Bruce S. Rogow: Because the journalist has his home elsewhere. These people have their homes here, these people have their residences here. Warren E. Burger: You could say that but they have homes elsewhere too even though those homes may have been confiscated. Bruce S. Rogow: If one looks the definition of residents under the Title VIII Section 1101 of Immigration Law, residence means the place of general abode the principal actual dwelling place in fact without regard to intent by the way, but it is the actual dwelling place in fact and if one is going to look for definitions and one looks there that the refugees in this case have their principal places of abode here. But I do not want to get tied to Immigration Law in this case because it is not an immigration case. We are saying Mr. Chief Justice, with regard to those special people, Diaz and Clara. We are saying that the lawfully admitted provision as applied to them is unconstitutional because it is not rationally related to the purpose of the statute and the purpose of the statute is to provide medical care to the elderly who have some ties to the country. Diaz and Clara have ties to the country; they are excluded under the statute that exclusion is irrational given the purpose of the statute. Warren E. Burger: You say and then restate, they have ties to the country, their tie to the country is condition, is it not? By the fact that they are admitted as temporary political refugees subject to exclusion and return to Cuba when it is politically feasible for them to do so without danger, is that not a fair statement of their status here? Bruce S. Rogow: Technically it is a fair statement as – Warren E. Burger: No, non technically then with – Bruce S. Rogow: I do not think it is a fair statement, I do not think that the Government – Warren E. Burger: Why not? Bruce S. Rogow: Because I do not think that the Cuban refugees who have a very unique status in this country, there are many, many statutes providing all kind of benefits, resettlement benefits to them, placement benefits, job training benefits to them. Warren E. Burger: To their own expressed actions, are they not? Bruce S. Rogow: Yes Mr. Chief Justice. Warren E. Burger: Do you have an expression action that cuts the other way if – Bruce S. Rogow: It does not cut directly the other way as applied to them. It precludes them but in response to your question Mr. Chief Justice which is, are these people temporarily here and will they be excluded, the hypothetical you gave me, requires me to indulge the assumption, they will be excluded when political conditions change in Cuba. I do not think that I can agree with that assumption.I do not think that Mr. Diaz who is 80 years old and that Mr. Clara are going to be excluded from the country, if the Castro regime falls in Cuba. I just do not think that it is a practical matter. Warren E. Burger: How did you know that? Bruce S. Rogow: I do not know that but – Warren E. Burger: Then we cannot know it either. Bruce S. Rogow: I agree but as your question Mr. Chief Justice is whether not they are here temporarily and are going to be excluded and I cannot agree that I know that they will be excluded. My point is they are here, their home is here, their ties are here and if we take the Government's submission to the Court as being the proper one that the Government is requiring some ties. These people have the ties. Now, I must say that, that is only one part, there are two classes involved here. There are aliens who have not been here for five years who are not in the same category as Mrs. Diaz and Clara. I think that all of these people are entitled to the constitutional protections of the Fifth Amendment and I think that when one looks at Graham versus Richardson, the reason why they are entitled to it becomes obvious. Because these people who are in the country under color of law are the prime example of a discreet and insolent minority. That is the suspect classification test. We think the suspect classification test is right. We think that is one that should be applied to this group of aliens. And Mr. Bork this morning, I think tried to frighten the Court away from adopting the suspect classification test by saying that all of these statutes listed in his appendix to the Wong brief might then fall. I think Mr. Bork was wrong and I think Mr. Bork’s fears that were unfounded. Many of those statutes maybe justified as exercises of the power over Foreign Affairs, as exercises of Power to protect National Security, as exercises of the power to protect vital resources and so I do not think that utilizing suspect classification will result a fortiori in the destruction of the constitutionality of those statutes. Now, even if the rational basis test is the test that ought to be used in this case. We think that these statutory classifications do not pass constitutional master. Weinberger versus Salfi has been cited this afternoon and Weinberger versus Salfi is the case, the most recent case, which talks about the rational basis test and how it is utilized. And I think that when one looks at Weinberger versus Salfi and compares it to this case. One sees why the statutory residents requirements here fall and they did not fall in Salfi. For instance in Salfi, there was a long legislative history, which show that Congress was concerned with abuses of the Social Security system that resulted from Sham Marriages. Salfi involved the duration of relationship requirement. One had to be married for nine months in order to secure a social security benefits if one's spouse died. There was a presumption that if you are married for more than nine months. It was not a marriage entered into, for the purpose of securing those benefits. So there is that long legislative history that there had been – William H. Rehnquist: Had been the long legislative history all, is that recalls you by a paragraph, does it not? Bruce S. Rogow: My impression form your opinion Mr. Justice Rehnquist, is that you certainly found that there was much testimony in the Congressional hearings that there had been abuses and people were entering into sham marriages. William H. Rehnquist: Well, that factor was there but I think it was dealt with fairly shortly in the legislative history. Bruce S. Rogow: But no matter how long it was, there was a legislative history that showed there were abuses and Congress was seeking to protect the system against those abuses. William H. Rehnquist: Do you disagree then with the import of Mr. Justice Stewart's question in the earlier case that, that test is – is there any conceivable set of facts that would support this distinction? You say that Congress must have manifested its concern. Bruce S. Rogow: I say that because in every case, the Court has looked to see if there is some way to conclude that Congress had some concern. I am not saying that Congress must have manifested it by coming out with a long preamble to a statute which says this is why we did it. But there must be something in the record that justifies the Congressional classification. William H. Rehnquist: Well, but what do you do with the test and cases like McGowan against Maryland which simply says, if on any conceivable hypothetical state of facts, this discrimination can be justified, it survives the Equal Protection test. Bruce S. Rogow: McGowan versus Maryland as I recall is a Sunday closing law case and one distinction that I would make between McGowan versus Maryland is that, one, we have a little different -- two different things to consider here. One is that there are people, aliens, a class that is affected and it is not the same kind of thing that was being affected in McGowan versus Maryland – William H. Rehnquist: Are you saying that the rational basis test when applied to people as you conceive it to be is not the same test as when it is applied to merchants who have to close on Sundays? Bruce S. Rogow: I see the difficulties in taking that position, but quite candidly, I think that there must be, the rational basis is not a very précised test. One cannot apply it mechanically to everything. I think one must take into consideration the factors that come into play and I think yes, the fact that there are people involved here and there are aliens. And the fact that their important health care benefits involved here that maybe essential to the very life of those people. William H. Rehnquist: Are there merchants somehow that were forced to close in McGowan less people than the aliens here? Bruce S. Rogow: No, they are not less people but they do not form a class that this Court has in the past looked at very carefully, whenever legislation has been implemented to dealing it. William H. Rehnquist: Well, but by hypothesis, when you are applying the rational basis test, you have already said that it is not a suspect classification. If it is a suspect classification, presumably you do not have to defend on the rational basis test. Bruce S. Rogow: I agree, but I think that ones want to recedes, if the Court says it is not a suspect classification. I still think there can be some heightened judicial solicit to -- William H. Rehnquist: You recede only step by step. Bruce S. Rogow: Yes sir, I do. Warren E. Burger: (Inaudible) stores who close on Sunday, had they no injury? Are they entitled to no consideration? Bruce S. Rogow: I think that they could shop another days other than Sunday and so the harm that befalls them is perhaps not a substantial as those who were denied important health care benefits when they are over 65 and need those benefits in order to protect their very life. I think there is a difference. Warren E. Burger: You do not think there are any substantial number of people who really cannot do there shopping except on Sunday. Bruce S. Rogow: For there maybe a number of people. I do not know how substantial Mr. Chief Justice but once again, I do not think – Warren E. Burger: Apparent, it is enough to justify most of the supermarkets staying open on Sundays now. Bruce S. Rogow: I think it is. I think the purpose of that obviously is not only to satisfy the needs of those people. But the economic needs of the supermarkets. When one looks again at Salfi and I think Salfi is very important in making our argument here. In Salfi, there were other objective evidences which could be shown to avoid the presumption that the marriage was not a sham. That does not appear in this case at all. In other words, in Salfi if a person had children by the marriage or had adopted children by the marriage, no matter how short how may have been before the death of the spouse. Then there was a way around that irrebuttable presumption is Salfi. In this case, there is not way around it. People who do have ties to the country, people who have come here have to wait five years no matter how strong ties are to the country and so once again, we have an example that Congress has not really been very precise in trying to meet the legitimate legislative goals that maybe involved. And one final example of the preciseness in Salfi, which I believe that this Court to uphold the statute in Salfi, is that Congress had reduced the requirement, the marriage requirement from one year to nine months. Because there had been evidence that some people who have been married for more than nine months but less than a year were being excluded from Social Security benefits even though the marriages were not sham. Another example of Congress trying to be precise and while it has power to draw lines. The Court looked at that power and said the power was exercised in a very precise and definite way and the lines that were drawn were not irrational. We think that using that analysis and applying it to this case, one must come to the conclusion that the lines are far too broad. Cut much too harshly and are therefore, irrational. The argument we make which is an argument really based upon the – John Paul Stevens: Let me interrupt at this point. Bruce S. Rogow: Yes Mr. Justice Stevens. John Paul Stevens: I want to be sure I understood your colloquy with the Chief Justice. As I understand that you would not have the attacked the first requirement of lawfully admitted for permanent residents, if it were not for the words for permanent residents. You would agree that Congress could rationally distinguish between illegal and legal, illegally present aliens. Bruce S. Rogow: Yes Mr. Justice Stevens. John Paul Stevens: And as to the five-years, I take it you would agree that Congress could have drawn line at, say, six months? Bruce S. Rogow: I think the six month requirement was much more difficult for me to try to overcome. John Paul Stevens: Well would you agree that they could have drawn it on thirty days? Bruce S. Rogow: Yes. John Paul Stevens: You would agree we could draw some line. Bruce S. Rogow: Yes I think. John Paul Stevens: And that line would be equally precise with the one that they did draw. Just be a shorter lines. Bruce S. Rogow: But we would then be able to come to the conclusion that the line was drawn with some concern for the people who are going to be entitled to those benefits. Requiring thirty days for instance, would perhaps show that Congress was trying to draw a fine line so that it would not harm people who were elderly who would come to this country lawfully and were indeed -- John Paul Stevens: It would just harm fewer people, because of the difference in five-years and thirty-days. Bruce S. Rogow: That is right Mr. Justice Stevens and in Salfi, there were some people who obviously were married less than nine months but were still going to be precluded. Congress does not have to meet every need of every person but it must at least draw a line in a narrow way so that it does not engage in the whole sale kind of exclusions which are here. John Paul Stevens: But the test as I understand you is the significance of the relationship between this country and the aliens. Thirty days is alright that a longer -- it is still the same yardstick, is it not? Bruce S. Rogow: I am not happy with thirty-days. I mean, I would have a great deal of difficulty in standing before the Court and objecting to the thirty-day requirement. I think there is another way that could accomplish the purpose or just would be for Congress to do but for instance, one could draw the line between -- one could draw the line at those listed in the non-immigrant category under immigration law, which by definition would exclude all of those temporary people. But if instead Congress drew the line at thirty-days, I would then have to say that in thirty-days of course, you probably could not even get enrolled within thirty-day period so that might not be such a bad luck. John Paul Stevens: But within the thirty-days, they do become persons entitled of the protection of the Fifth Amendment. Bruce S. Rogow: Within one day of being admitted, they become persons. Yes Mr. Justice Stevens. The argument we are making is not – Warren E. Burger: There on the First Amendment of the first hour of the first day on your theory, you have to say they are entitled of protection – Bruce S. Rogow: I certainly believe Mr. Chief Justice that a person who immigrates to this country. Who on the moment he leaves Ellis Island and steps into New York for instance and says I have cut off all ties with my homeland and this is my new land and I will make it my only land for the rest of my life. That person has substantial and enduring ties, does Congress have to draw the line there if—it would be nice of they did. It would most accurately reflect what the purpose that the Government is suggesting is. But if it did not draw the line quite there, I would not be able to say it would totally irrational and of course, all of this discussion is premised on the assumption that irrational basis test is appropriate one and not the compelling interest test, the point which I do not of course agree with. The argument we are making is not a novel one. In 1886, in Yick Wo versus Hopkins, the Court held that aliens were entitled to the benefits of the Fourteenth Amendment. In 1896, in Wong Wing versus United States, the Court held that aliens were entitled to the benefits of the Fifth Amendment. Our argument is the amalgam of the Fourteenth and Fifth Amendments and we are saying that aliens today ought to be entitled to the constitutions just as aliens of a past century that were entitled to the benefits of the constitution. And we believe that the cases that this Court has decided recently dealing with aliens are most persuasive in affirming the decision of the Court below. Warren E. Burger: Thank you Mr. Rogow. Do you have any further Mrs. Shapiro? Harriet S. Shapiro: No, Your Honor. Warren E. Burger: Thank you. The case is submitted.

Raphael H. Weissman: .Mr. Chief Justice, and may it please the Court. This is an appeal from contempt of court convictions made by a New York State Supreme Court justice, conducting a judicial inquiry into alleged so called ambulance chasing in Kings County, Brooklyn, New York. The appellants were sentenced 30 days to sit in prison for refusal to answer questions. Each appellant served two days and they are both enlarged in bail pending the determination of the appeal. Their refusal to answer these questions was based upon the fact that the justice denied or refused to allow their counsel to be present in the courtroom while they were being questioned. And the appellants now make a claim on this appeal that the denial of their counsel's presence in the courtroom while they were being questioned and the appellants now make the claim on this appeal that the denial of their counsel presence in the courtroom where they were being question was a denial to them of their Fourteenth Amendment due process rights. The order of this Court of November was from the consideration of jurisdiction until the argument of the case on appeal. Our position on that jurisdictional aspect is that appeal does lie here as a matter of technical right, and in any event a substantial question being presented that the Court can make the decision of the question by the route of certiorari if for technical reasons, appeal fails. Now, on the right to come here by way of appeal, the appellants take the position that Section 90 subdivision 10 of our local judiciary law in the State of New York, as construed and applied in this case, denied them their Fourteenth Amendment due process. The section in brief provides for conduct of investigations by the appellate division of the conduct of attorneys at law. And one of the provisions is that until a certain stage is reached, these investigations must be made privately. Now in this case, the review of the commitments on the local law has to be taken by so called Article 78 proceedings, the equivalent of a common law certiorari and where a justice of the Supreme Court is involved as a party, the proceeding must be initiated in the intermediate appellate court or the appellate division of the Supreme Court of the State of New York. So that the instant case started by original petitions in the appellate division of the Supreme Court for a review of these commitments. The appellate division in this case, dismissed the petition on the ground that there was no distinction between the case we presented and a prior case which we designate as a companion case, which had then recently been decided by the appellate division and needs to appeal had been denied by the Court of Appeals. In our case, the essential part of the ruling on this point is stated on page 10 of our brief and the appellate division said that we contented that our case was different from Anonymous M from the so called companion case. They cite the Anonymous M case and they find that there was no difference and therefore our petitions were dismissed. Now the Anonymous M case, the opinion on that or the essential portion on jurisdiction is printed on page 15 of our brief and there we say that the appellate division construed the right of the justice conducting the inquiry to exclude counsel to come out of this Section 90 subdivision 10. The excerpt of this is a short one, it's central, and I'll read it. The order also provided, this is from the companion case, that for the purposes of protecting the reputation of innocent persons, the said inquiry and investigation shall be conducted in private pursuant to the provisions of the judiciary law Section 90, Subdivision 10. Then I have omitted certain portions and they conclude, it was not an abuse of discretion for the additional special term to exclude petitioner's attorney from the room while petitioner was being questioned. Now was it a violation of his constitutional rights? Citing a local case which has nothing to do with it and matter of Groban then recently decided in this Court in judiciary law Section 90, so that we say that our petitions were dismissed in the appellate division on the ground that this local statute authorized the exclusion of counsel in order to maintain the statutory privacy. Now after the dismissal of our petitions in the intermediary appellate court, we took an appeal as a matter of a right to the Court of Appeals to higher State Court of New York on the ground that a constitutional question was involved. Then counsel for respondent made a motion in that court to dismiss on the ground that no substantial constitutional question was involved and the Court of Appeals granted the motion to dismiss on the ground that no substantial constitutional question was involved. It should be no different if there was no challenge to the form in which we took our appeal. It was the substance of our appeal that was thus adjudicated and we say that under the decisions of this Court that adjudication by the Court of Appeals at least for the purposes of jurisdiction is an affirmance of what was done in the appellate division. Now with that as the premise, this is the way we start out our right to appeal as a technical matter under the decisions of this Court. This Court will not review a construction of the statute of the state, especially in its constitutional aspect unless the court -- the higher State Court itself either had an opportunity to construe it in relation to the constitutional challenge or in fact they construe it in relation to the constitutional challenge. Now we say that the appellate division decision went up to the Court of Appeals which the Court of Appeals in effect did affirm, gave a full and complete notice that what was done here was done under this local statute, that it was challenged on the ground that would be unconstitutionality that is to say that it would deny due process. And that the Court of Appeals had ample opportunity to say what it wanted to say in point of construction of that statute so that we say as a technical legal manner that appeal lies here because we have satisfied the rule, laid down on the cases of this Court that the highest State Court either did construe it or had a chance to construe it. Speaker: Do you specifically advise the statute -- constitutionality of the statute? Raphael H. Weissman: I did not, not in the appellate division. The point I am making here is there is a bifocal approach. Either the necessity for the challenge in the State Court as I see it Your Honor is to give the highest State Court an opportunity to construe the statute, but if even without anybody raising the question, the record as a whole shows that the decision in the higher State Court was an affirmance of our position taken on the basis of a statute, then we have the substantial or real equivalent of a decision by the higher State Court that this statute authorizes exclusion and we are here as a matter of right by route of appeal. Felix Frankfurter: Do I hear correctly that do you think the companion case Anonymous M was a different case from your case and did not govern your case, isn't it? Raphael H. Weissman: Only -- not in respect -- my answer should be no sir. Only in respect of a local matter, there was a question of discretion involved. The appellate division had decided two things. The appellant division didn't say that all must, all counsel must be excluded. The appellate division there said that the justice at the inquiry had the right to exclude counsel over discretion to admit him. The fuller text of that opinion shows that. Now the distinction we make -- Felix Frankfurter: I thought, read it actually somewhere that you indicated the circumstances in the companion case, Anonymous M, were different from circumstances in this case, that is correct, isn't it? Raphael H. Weissman: That is correct in respect -- Felix Frankfurter: And in this case, your claim is that he is not merely a witness as to the conduct of others but potentially he himself was or the defendant or may, may become a defendant that was not true in the companion case, was it? Raphael H. Weissman: That's right. Felix Frankfurter: And therefore you say the misconception, it wasn't misconception, the appellate division to find Anonymous M controlling from which I draw the inference, you tell me if it were just as I believe that the statute as such does not -- does not violate or offend the Fourteenth Amendment, but the application made of it to the particular circumstances of the case which you are arguing, am I right about that? Raphael H. Weissman: We have -- perhaps one qualification -- I think Your Honor is right on that as to our position. We take the traditional position that the statute as construed and applied to our particular case. Felix Frankfurter: That is true of every statute which is as it were arbitrarily applied to a particular situation makes them appeal although the statute continues to stand, continues to be enforceable and tomorrow after the effects of decision it just as operated as it was the day before? Raphael H. Weissman: That could be. On the other hand there are statutes by their face upon a mere reading so far impinge upon constitutional limitation. Felix Frankfurter: That is in this case. Raphael H. Weissman: No because that statute was dragged in here by the heels. It was never intended to cover a so called ambulance chasing investigation. The statute has a long history, but that of course is not for this Court. Those were some of the collateral matters that we argued in the local court. We were -- Felix Frankfurter: What becomes then, the underlying basis of the action of, what this judge authorized was this order to investigate ambulance case, wasn't it? Raphael H. Weissman: Yes. Felix Frankfurter: That gave him his jurisdiction. Raphael H. Weissman: Yes sir. Felix Frankfurter: So that is the real, the real offence here is whether under that order he could do what is denied to him? Raphael H. Weissman: Only in one way, he didn't act only under the order. He was authorized by the order to act under the law. He applied the law. He was authorized by the order to undo the statute to exclude people so as to maintain the privacy. The statute is right in the crux of this problem. Felix Frankfurter: Didn't the order accorded at a special term -- set forth that in order to protect the innocent people he may exclusively hold the hearings in camera. Raphael H. Weissman: Yes and it referred to this section of the statute. The statute is right there. Felix Frankfurter: But because if flowed from that order, is it not? Raphael H. Weissman: His appointment flowed from the order, but he applied the law, he applied the statute. Now on this question of the jurisdiction, we, he didn't detain the case much longer because in any event I think the question as to whether or not we presented a substantial question is, subsumed in the court's decision that the problem be postponed, the jurisdictional problem for the argument of the case on the merit. So even if for technical reasons we failed on this question of right of appeal, I think the Court can decide the question by way of certiorari and the problem is really here without any serious impediment and now to the merits. This was an order to investigate alleged malpractice by attorneys and others associated with them in Kings County. The appellants here are not attorneys. They are licensed investigators and they are just that. They are licensed by the State of New York. They have a defined function in the scheme of negligence, litigation and settlement. Now they were subpoenaed to come before this investigation of the judicial inquiry. They came with counsel and they repeatedly pointed out to the judge that before they had come in for the actual questioning, they and their counsel had been informed by a member of inquiry staff that enough evidence had already been gathered against them to submit to the district attorney, that the enquiry doesn't intend to pussyfoot with them and that is if they come clean so to speak, that will be taken into consideration. The testimony that was given by this member of the staff is found on page 115 and 116 in the record. The way he came to give the testimony was that these parties repeatedly turned to the judge and said, we are not here as witnesses, we are here as prospective defendants, we are here as targets of this investigation. We need the advice of counsel, and we were threatened they said. And so the judge for the integrity of this process I suppose held a hearing to find out who threatened and when he was told especially that a member of the inquiry staff did it. And so he heard testimony about one or two other witnesses and then came to the particular member of the staff and questioned and he was told you heard what was said and what you say about it. And Your Honor see here, there on the page, that he tells his part of the story and he goes on to say, I don't know my exact language, but I indicated that we did not intend to pussyfoot with them. We were not trying to trap them in any manner, but the testimony and evidence have come before us in the course of our investigation that someone and the employer Gotham Claims Service, these appellants did business on their partnership name of Gotham Claims Service, had with some frequency obtained statements from defendants holding themselves out to be from defendants carriers and also holding themselves out to be from other agencies and in one instance the district attorney's office. That our investigation had disclosed that these statements had been tampered with and that it was these statements -- and that it was relative to this that we wish to speak to them to find out if these statements were actually taken by Gotham Claims service for what attorneys these statements were taken, and whether the tampering was done by them or their employees, or a direction of some attorney. And then he says something else, he finally says, I further stated that in my opinion there was prima facie evidence in the event that the clients decided to plead the Fifth Amendment to refer the matter to the district attorney's office. All this had happened before these people were called into the courtroom to be questioned and in light of this they repeatedly made their protest to the judge that they want the help of counsel while they were being questioned and he nevertheless denied. Speaker: Were they indicted (Inaudible) Raphael H. Weissman: No Your Honor they weren't yet. Their further investigation is being held up pending this litigation. Now -- Felix Frankfurter: Did the appellant claim immunity under the New York constitution? Did they refuse, did they object to the whole inquiry and not merely decide a counsel -- Raphael H. Weissman: Now they faced their refusal solely on the ground that their counsel was not allowed to be present? Felix Frankfurter: They did not invoke the state constitution of immunity, did they? Raphael H. Weissman: They did not. Felix Frankfurter: Or contest against the constitutionality of the proceeding in its entirely? Raphael H. Weissman: No sir. There is no other questions in this case that whether or not the denial to them or the presence of their own counsel during the questioning in the courtroom so vitiated the process as to render this commitment void, that's the sole question before this Court. Now what actually is done with this evidence that is gathered at the judicial inquiry is disclosed now by a report made, an interim report by Mr. Justice Arkwright to the appellate division. In quotations from that report in our brief, he says how many doctors the evidence that the doctors sent up for a prosecution before the medical board, how many are sent to the District Attorney's office and it shows the closest liaison between this office and the District Attorney's office, it's right there in his own report, it's just as though they were in an anteroom of the District Attorney's office once you take people after they are examined, right into the other room for presentation for indictment, I said you take people, I mean you take their evidence. Now, the reason for emphasizing this is that the brief for appellee and the position of Mr. Justice Arkwright in his answer, made very light of the whole thing. They preceded on as though (Inaudible) as though this was something else, as though they were just conducting some sort of preliminary inquiry and thereafter a report is made for the appellate division and the appellate division then says what to do with it. Now, in words that of course is so but in reality and there is own report shows, that isn't anymore so than if the people here involved were clerks in the District Attorney's office gathering the information so as to bring it into the Grand Jury room. Charles E. Whittaker: Mr. Weissman. Raphael H. Weissman: Yes, Your Honor. Charles E. Whittaker: I'm not sure I understand what happens after this investigation conducted by the special term is completed and he makes a report I understand to the justices. Raphael H. Weissman: Yes Your Honor. Charles E. Whittaker: Now then must if any further proceedings are to be taken against an individual, a separate judicial proceeding be instituted? Raphael H. Weissman: Yes sir, a separate judicial proceeding or a separate administrative proceeding because doctors are involved as well as lawyer, the firemen or prosecution for crime. Yes, those are all separate technically separate steps. Charles E. Whittaker: No judgment is rendered upon any findings made by the special term? Raphael H. Weissman: None except as a recommendation from a justice of the Supreme Court is called what, this is a judicial inquiry. It may be not the traditional judgment of conviction. It may not be the traditional order of disbarment, and what is the recommendation by a justice of the Supreme Court who has taken testimony and considered it judicially and comes to a conclusion. Technically Your Honor when Mr. Justice Arkwright gets through, he does nothing more then send his report to the appellate division, but that's only technically. It's as if the clerk and the anteroom in the District Attorney's office, when he gets through examining somebody, and develops a case against him, he doesn't himself make a judgment of conviction he takes it in for the further steps. Substantially what happens is that here is where these people are being tried. Charles E. Whittaker: Does it amount, does the report to the special term amount in effect to a determination of further or not there is probable cause to initiate some further proceedings? Raphael H. Weissman: Yes at least for that end (Inaudible) and the recommendation that certain things be done. We have in the record here an excerpt from the report which indicates what the appellate division authorized Mr. Justice Arkwright and Mr. Hurley to do with these things. It's only formal approval by the appellate division. Speaker: This is a standard procedure and all of these investigations (Inaudible) Raphael H. Weissman: Well, standard in the sense that the two or three we've had before have -- I'm afraid I can't answer that, I don't what they did in the others, but the orders seemed to be the same thing. There is nothing standard of this because there is no statute, there is no rule, there has been one decision by our Court of Appeals, the old Carlen case. This is breaking new ground in this respect. This problem of representation by a counsel didn't arise in the earlier investigations we had in New York. Now Your Honors -- I beg your pardon. Felix Frankfurter: (Inaudible) which validated this proceeding (Inaudible) Raphael H. Weissman: Procedure. Felix Frankfurter: That the proceeding (Inaudible) the appellate division into a generally inquiry (Inaudible) and they have to recognize that, unless I'm wrong about it, that such procedure, such inquiry maybe had either in camera or public, and in camera in order to protect its people, this is in the very words of the order, isn't it? Raphael H. Weissman: Yes. Now in -- Felix Frankfurter: (Inaudible) Raphael H. Weissman: And yes what Your Honor said is true, but it doesn't reach this point. Felix Frankfurter: I'm just suggesting it, I'm suggesting that this inquiry has been (Inaudible) in Chief Justice Cardozo's opinion (Inaudible) just for the proceeding by the appellate division. Raphael H. Weissman: Yes Your Honor. Except that, that decision left open the question as, for whose benefit privacy is to be maintained. This order and the proceedings here, the record here showed that the privacy is maintained for the benefit of the appellate. They were the ones being questioned and secondly aside from that, there wasn't any question in any one of the prior investigations as to whether or not privacy reaches to the point, when a man accused in every realistic sense of the word cannot come in with his counsel. Counsel under common law traditions have been entrusted with the lives, the secrets of the lives and fortunes of human beings for centuries. Felix Frankfurter: He could have stopped this whole inquiry couldn't he by saying I'm a potential criminal defendant and thereby don't propose to answer these questions, could he not? Raphael H. Weissman: Well that would have been a little more difficult because -- Felix Frankfurter: Why would that be difficult? Raphael H. Weissman: Because before the Grand Jury you could do it, the statutes and the decisions were not so clear and the difficulty is manifested by the fact that he was clamped into jail here when he said I don't want to answer without my attorney being present, that was his difficulty. Speaker: I'm putting to you a different question, I cannot conceive it is possible that a claim of a immunity may before a judicial proceeding, such as this was is not subject to same rights of a claim of immunity for any other judicial, and he could have stopped this whole inquiry by saying, I am a potential defendant, or I may turn out to be a defendant as a result of this inquiry and therefore I don't suppose to begin answering questions, couldn't he? Raphael H. Weissman: He'd have difficulty under our state law for this reason. He was not before a Grand Jury. Felix Frankfurter: I thought he was the judge of the Supreme Court. Raphael H. Weissman: The judge didn't look at it that way. That was his difficulty. The judge kept saying all through the hearing I advise you or I rule that you are only a witness. Felix Frankfurter: Yes but he never claimed immunity which he can invoke under the New York constitution (Inaudible) Raphael H. Weissman: That's right. Felix Frankfurter: And this before a man who was sitting in special term as a Supreme Court Judge in Brooklyn. Raphael H. Weissman: There are two answers to that, he never did, he never got to it, in the first place. We say that he being a potential defendant had all his constitutional rights, among them the right in the first place to be represented by counsel and that -- Felix Frankfurter: So is that the Fourteenth Amendment? Raphael H. Weissman: Under the Fourteenth Amendment. Felix Frankfurter: Why he, under the Fourteenth Amendment he could be prosecuted for a crime and not be entitled to the defense of counsel. Raphael H. Weissman: Well that depends upon the -- yes there are situations, but in this case he had the right as a potential defendant to representation in a criminal case by -- a potentially (Inaudible) by a counsel. In our state we allow counsel in all criminal cases. Now, getting back to the question or the implications as I get them from Your Honor's question, about he could have invoked the state privilege against self incrimination, of course he could have, but does the existence of one constitutional right constitute a basis for the denial of another? Felix Frankfurter: Not if he has it. Raphael H. Weissman: Not if he has it, now of course we claim he had, now the second thing is, these were laymen. There are difficulties about invoking constitutional rights. There are intricate angles of waiver, depends upon how much you say, and what attitude you take and whether you do it on the affirmative. Felix Frankfurter: Could he go out in the hall and consult his counsel? Raphael H. Weissman: Yes he could go out in the hall and consult his counsel and that only emphasizes the violation of his constitutional rights. In this case the judge below at certain junctures told them that they may consult their counsel outside. Now Your Honor will surely know, the counsel outside cannot know the course of proceedings, the conjunction at which a man is asked the question. Felix Frankfurter: But he could tell him don't answer anything. Raphael H. Weissman: He could tell him -- Felix Frankfurter: (Inaudible) Raphael H. Weissman: It all depends upon whether or not counsel wants to act clumsily or whether he wants to act to the best of his ability with full knowledge. Now counsel outside doesn't know exactly what's happening. Here is a (Inaudible) layman who comes out and tells him, the judge told me this or that. That has happened. I have been outside with trials there. It's the most difficult thing in the world to get it from them whether layman or lawyer to get the exact conjunction at which whatever question arouse. Felix Frankfurter: Mr. Weissman but your case here if it doesn't (Inaudible) finds great support from the fact that a member of the staff told him we are not going to pussyfoot with you, you could have reported that. That's not a clumsy problem. Even the layman in this business would understand that, wouldn't he? Raphael H. Weissman: Yeah. Felix Frankfurter: Indeed your claim is that that would make your case different from Anonymous M? Raphael H. Weissman: Yeah. He didn't have to resort to that. Every man doesn't have to claim -- Felix Frankfurter: Now but the question is whether it violates the federal constitution, whether – that he wasn't allowed to have a lawyer in although he could have protected himself (Inaudible) by not having him in? Raphael H. Weissman: He could not -- if he could have protected -- I will say two things. In the first place he could not have protected himself and plead no reason adequately if he didn't have his lawyer in there. And then in second place even if he could, if he faced is a criminal trial, he is entitled to be presented in pretrial proceedings by counsel and he doesn't have to have counsel on an as-if basis, counsel standing outside to get information from him in a frightened condition or otherwise. If counsel is going to represent somebody, if he has a right to representation by counsel, it must be then and there. There's another consideration as was indicated by the dissenting opinion of Mr. Justice Black in the Groban case. This in an in-camera proceeding. While it's been sanctioned in the Karlin case and never taken up higher, this is still an in-camera proceeding with all the invidious and unfortunate consequences that in-camera proceedings have to this day. An in-camera proceeding is not only vicious when it was conducted in history, it is infinitely more vicious in these more civilized times. Now in such a situation it is a very comfort and great protection for a man when he is being grilled by a judge, a large staff of counsel in the courtroom to have the guiding hand of counsel and he is entitled to it. Now we say Your Honors that that the decisions below were rested on the misapprehension of the reach of the decision of this case in matter of Groban. And while dissecting precedence is hardly a profitable undertaking in most times, in this case it will help to focus the problem down, the considerations in relation to this problem were fully developed by the three opinions in matter of Groban and we say that in substantial, realistic respect, the case of matter of Groban is based upon considerations that do not apply here and entirely different from the considerations that apply here and that in this case the man was entitled to his counsel. Now there were the three opinions, one by Mr. Justice Reed and there was a concurring opinion by Mr. Justice Frankfurter and there was the dissenting opinion by Mr. Justice Black. First I think it is profitable to see that the considerations that moved the prevailing opinion of Mr. Justice Reed are entirely absent and different here and I shall show that even the concurring opinion was based on considerations that has applied to the circumstances of this case would warrant a holding here, require a holding here, the counsel should have been allowed. In the first place, we had in the Groban case, a fire marshal making an investigation of causes of a fire. Perhaps the situation as you view it as a whole (Inaudible), but practically through the imagination you could see that one cannot compare, considerations applying to the investigation of a fire by a fire marshal to hearing in the courtroom, the old appellate division courtroom with bench as long as this, Judge in a courtroom outside as lighted up as this courtroom with a large staff of counsel on one side having a man in there and he is not to be represented. The situations are entirely different in the, and the difference is even shown in the very open book of our language. People say what's your hurry where is the fire. The fire marshal is in a hurry. He has to do things quickly. It didn't happen to be in that case that it was done in such a hurry but the ruling had to be made on a basis that he would exercise his power this way and that way Your Honors kind of made a ruling for every hour of these function, but he was a fire marshal. He may have to run with some people right down and while things are smoldering and find out what's the cause of the fire and in such circumstances to require representation and perhaps some reasonable time for preparation. It violates the essential function involved. We have no such problem here and this is a long investigation, judicial investigation, hearings in a courtroom presided over by a judge. We don't have that kind of hurry. Now in the Groban case it was prominently stated both in the majority opinion and Mr. Justice Frankfurter's concurring opinion that all that you had there was that the man who came here to this Court and complained, said that he suspected or that there was a suspicion against him. And both Mr. Justice Reed's opinion and Mr. Justice Frankfurter's opinion had worded to the fact that this was not anything aimed at a man who have been accused. There was a suspicion and Mr. Justice Reed pointed out in that case that the suspicion that was -- they had argued before this Court, was without even any (Inaudible) or any proof or any affidavit to sustain the fact that the fire marshal had any suspicion against the man involved in Groban. And you have no such problem here because before the questioning commenced, the very judge was informed in that proceeding that his assistant had already told the man that they had gathered against him evidence, prima facie evidence sufficient to make out a crime and we won't pussyfoot with you. If you don't play ball we'll send it to the district attorney. So that in the Groban case you had a suspicion, and here you have a man who in every real sense of the word and its meaning in the English language was accused. The brief for appellee and that's the argument we'll talk about accusation in the technical sense. Speaker: Suppose in the New York statute or the Judge Arkwright said, one man grand jury, would that be of any difference to your position? Raphael H. Weissman: Well as I remember the Murchison case which I didn't cite here I don't think that there'd be much difference but I am not in a position to say, difficult enough to focus on the one problem and perhaps the analogy might be misleading and I have really haven't considered it from that point of view. There is another aspect of the investigation and will involve the Murchison situation because this judge sits in a dual capacity explicitly under the (Inaudible). He is both investigator and justice of the Supreme Court. He investigates and he adjudicates, but that problem is not involved in this. This is solely the question of right of representation by counsel. Now in another point that was made in the prevailing opinion in Groban was that in any event, if anything was done unfairly to extract evidence from the person who ultimately is charged with crime that can be shown upon a subsequent prosecution at the prosecution level as a basis for a plea to exclude like in the general considerations of the forced evidence or involuntary evidence of whether there was something on there. Now that's the very important thing to remember because in this case these people had no such chance whatever, these people are called to give evidence before a justice of the Supreme Court and under our local practice act and under the common law everywhere, when you give evidence in court (Inaudible) that's it, you have no more defenses. You can't impeach that in any subsequent trial except on relevancy, but I mean as to it's -- the genuineness of the evidence that was given. Now in the concurring opinion written by Mr. Justice Frankfurter, emphasis was laid on the fact that the statute there was not aimed at suspect and the thought was developed from which I rely here to some extent, that if there are differences, as I read the opinion, the concurring opinion it reserved on the decision made and the concurring opinion as I read it, and this sounds probably I'm sure to Mr. Justice Frankfurter, because he knows what he wrote and I'm just reading it and imagining the (Inaudible). That was no general warrant in the Groban case to investigate people without counsel, no matter how near you get to the suspect line and so on. And Mr. Justice Frankfurter there wrote the sentence that if there are differences in degree a due regard for due process requires that those differences be given their significance. Now here we don't have any differences of degree. We have a substantially different situation. We have a court process and not a fire marshal's investigation or anybody else's investigation. This is called an investigation, but it's made by a court. A court in all its aspects functions judicially. A court has administrative functions, but in the whole, in the gross and scope of their judicial functions, administrative aspects of judicial functions. Potter Stewart: I don't find at all the distinction that you are making. As I understand that your -- you of course have to accept the Groban decision because there it is, and as I understand the distinction you have been making, it suggests that there is less danger of unfairness in the case of a man not represented by counsel if the hearing officer is a fire marshal than there is for a man unrepresented by counsel if the hearing officer is a judge, do I gather that correctly? Raphael H. Weissman: Well I'm sorry if you got that impression it's my fault. I think the danger maybe as great perhaps of one case as in the other. I point out that in fact according to that record and this the danger here was infinitely greater than it was there and then I point out as a matter of law, the judicial process that the court has to take account of the way things are done in life, that what the court may have to reluctantly yield to a fire marshal it doesn't at all have to either reluctantly or yield to a judge. Those things happen all the time in the judicial process, and then they are all like a mathematical formula. You first take account of realities, and I think that pervading the whole Groban opinion and this language shows it was, that the majority side, was that this was a fire marshal. We are dealing with fires. Fires need expedi -- Potter Stewart: The fire was over in that case, wasn't it? Raphael H. Weissman: In there, I said before in that case, it happened that the fire was over, but it is hardly to be expected that this Court will make a decision for a fire marshal when he is at the fire and then what happens a half hour later or a half hour before or a half hour or a day later, those things are done that way. Maybe if a fire marshal comes back here or a fire marshal's case where the thing had been over for six or eight weeks, maybe Your Honors might think that the considerations of fine even to a fire marshal should not apply to a situation six or eight weeks later. I do not say that our man was in less danger, if he were before one or another. What I said about the fire marshal was try to read the considerations that the judicial process has to wrestle with in concrete situations. Now what it says about a fire marshal is one thing, what it says about a judge, holding a hearing in an open court with a large staff of counsel on another side is another thing. But further my distinctions go in showing that in point of fact the facts disclosed by that record showed an infinitely less situation of danger requiring protection than ours. Potter Stewart: Well I understand of course your point about the suspicion in that case as contrasted to the statement of the investigator? Hugo L. Black: What (Inaudible) Raphael H. Weissman: What Your Honor? Hugo L. Black: What action is present in this hearing? Raphael H. Weissman: In the hearing room, the presiding justice and several members of the staff of counsel. Hugo L. Black: Counsel for whom? Raphael H. Weissman: For the judicial -- for him, for the judge. This order points to -- Hugo L. Black: Employed by whom? Raphael H. Weissman: Huh? Hugo L. Black: Employed by whom? Raphael H. Weissman: By the judge, appointed by the appellant division and employed by the -- Hugo L. Black: Paid by the state? Raphael H. Weissman: Yes, there's a charge on the city budget. Hugo L. Black: For the whole city attorneys or county attorneys or what? Raphael H. Weissman: No, they are just called under the judiciary law counsel appointed to aid in the investigation. Charles E. Whittaker: Were the private lawyers appointed by the (Inaudible) Raphael H. Weissman: The private lawyer -- Charles E. Whittaker: (Inaudible) Raphael H. Weissman: Practicing publicly, but the got their appointment, they have their appointment, they are public officials in that sense of the word. They are like (Inaudible). They are investigating attorneys, they (Inaudible) the District Attorney's office. Hugo L. Black: Is the statute printed under which they were appointed? Raphael H. Weissman: No Your Honor but the order is printed and that refers to the statute. The order of the appellate division appointed the judge to hold the term. It also appointed him to be the investigator and then it also appointed Mr. Hurley as counsel to aid the judge, not as the attorney, to aid the judge in the investigation and then it gives him authority to appoint a staff and they get a budget, and it's like a temporary special prosecutor. The judge himself is paid his own judicial salary, he gets no more. Hugo L. Black: And what happens under the law if the charge is made by the judge? Raphael H. Weissman: It goes back to the appellate division, gets its approval and then it goes to the District Attorney for prosecution or for disbarment or if a doctor is involved to the medical board, and the record does contain the statement as to what had been done with the evidence gathered at or about the time that this situation arose. Hugo L. Black: The special prosecutor's (Inaudible), does it with the report made by the judge? Raphael H. Weissman: The judge himself of the special prosecution. Hugo L. Black: Well, I mean the -- Raphael H. Weissman: Yes. Hugo L. Black: -- the assistants to the judge -- the special prosecutor, is that (Inaudible) in when the judge makes the report to the District Attorney? Raphael H. Weissman: Well, now for whatever we see in the record that maybe so, but in the reality and in accordance with newspaper items that I've also included in the record, they cooperate with the District Attorney's office and Mr. Hurley is in-charge of that staff and he could tell us more. They really do not in any realistic sense of the word end. They just carry on. They take that evidence, we know in Brooklyn and we read it in the papers all the time. They cooperate with Mr. Aaron Cooter who is an assistant of Mr. Silva, the District Attorney and they carry through the prosecution though the disbarment or whatever it is that happens to be recommended. It is not a confined function that the judge -- Hugo L. Black: As I understand you, the only ones present for the judge. Raphael H. Weissman: The judge -- Hugo L. Black: Special prosecutor, special attorney. Raphael H. Weissman: Yes and the stenographer. Hugo L. Black: The stenographer. Raphael H. Weissman: And some of his investigators. Hugo L. Black: And the witness -- Raphael H. Weissman: And the witness. Now from time to time, and at one time in this -- Hugo L. Black: Any other officials there, are permitted to be there? Raphael H. Weissman: I don't know whether any others were there, but -- and I don't know whether they are permitted to be there. I was there on one occasion and I saw about 12 people sitting around. Hugo L. Black: You were inside? Raphael H. Weissman: I was inside. Hugo L. Black: Were you permitted to stay inside? Raphael H. Weissman: Now that was in connection with a special motion on another case, yes sir. Hugo L. Black: In another case? Raphael H. Weissman: Yes sir, not in this case and in the other case I was permitted to come in because again the witness refused to answer questions unless his counsel was present and the judge after this Court had granted certiorari permitted me to come in the one case, but that was another case. Hugo L. Black: The charge here is based solely on the practices that he declined to testify without telling his lawyer there that -- Raphael H. Weissman: Yes. Hugo L. Black: Is that the -- Raphael H. Weissman: Yes Your Honor, there is no question about it. The appellate division memorandum makes that perfectly clear that the whole case -- Felix Frankfurter: Just in the interest of accuracy, I suppose your brother would tell us, but isn't this like the many instances to which Chief Judge Cardozo referred where the whole proceeding is initiated by a bar association, it makes the petitions to the appellate division and the appellate division then decides whether the representations are of sufficient gravity to call for an inquiry and when it finds a sufficient gravity as it did in the Karlin case, it then designates a special justice of the Supreme Court to sit in as the hearing master, a report to it, and the hearing master (Inaudible) Supreme Court of either the first division or the second or any of the other four divisions in New York, is then assisted by a lawyer designated by the petition in bar association, isn't that correct? Raphael H. Weissman: Substantially Your Honor. Hugo L. Black: That's what occurred here, did the bar association name the (Inaudible) special judge or the -- Raphael H. Weissman: No. Felix Frankfurter: Not the judge? Raphael H. Weissman: Not the judge. Hugo L. Black: So the lawyer -- Raphael H. Weissman: They nominate the lawyer because I think it's a requirement under the statute. They nominated the lawyer and they nominated a distinguished lawyer Mr. Hurley of (Inaudible). Earl Warren: Mr. Weissman. Raphael H. Weissman: Yes Your Honor. Earl Warren: I understood you to say that the order gave the judge the discretion of either permitting counsel or keeping counsel out, is that correct? Raphael H. Weissman: Yes Your Honor. Earl Warren: Now does that refer back to any language in any statute? Is there any statute that gives the right to do that? Raphael H. Weissman: No Your Honor. It's the same statute. Earl Warren: Yes. Raphael H. Weissman: The appellate division did that in a decision. If I answer Your Honor inadvertently here and perhaps mislead you, the appellate division enjoined privacy in the older, but in another decision which we have included in our brief, they indicated that since in that case, this companion case, the matter of M. Anonymous, the person who came before the justice was not a mere witness as to act of somebody else, but was himself a target of the investigation that the judge might well -- very well have exercised his discretion to allow counsel with him in courtroom while he was being questioned. Earl Warren: I see. It is not in the order itself, is that correct? Raphael H. Weissman: Yes sir. In the order it just enjoined to maintain privacy and that refers to the statute. Earl Warren: Yes, yes. May I ask this as a matter of interest? Was there any discretion used prior to your case that you know in excluding or admitting counsel? Raphael H. Weissman: There are opinions which we've referred to in our brief that show that counsel had been uniformly excluded, except for the one instance after certiorari was granted in this case -- Earl Warren: Yes. Raphael H. Weissman: -- where I appeared with another witness who again refused, that time he was (Inaudible) to go in without counsel and I was permitted and that was the only instance and the judge himself told me that, that was the only exception, but theretofore he had maintained a rigid adherence to exclusion. Earl Warren: Yes. Raphael H. Weissman: Now Your Honors there are two cases that the filed brief mentions, at the end of term this Court had two cases involving the denial of counsel during a period of preliminary police investigation, and I just want to point out briefly that those cases have nothing to do with this kind of situation. In those cases it was pointed out, in both opinions that whatever was said to the prosecuting authorities was said voluntarily, whereas here the people were brought in under compulsion, to be raised by their heals if they refused to answer, and secondly you have the feature in those two cases, the (Inaudible) case that if there were some abuse involved in procuring the evidence that maybe shown for the purposes of later exclusion, which I've shown before does not exist here. Once they give their evidence they are gone. Now, there has been some attempt to equate this with a Grand Jury procedure and I need only refer to what Mr. Justice Black said in the dissenting opinion, in Groban about the attempt to do that. This of course is not anything like a Grand Jury procedure, certainly not in our state. They couldn't get him to come in and testify without giving him immunity, if he is a target of the investigation. Felix Frankfurter: He would have to claim it, wouldn't he? Raphael H. Weissman: Well he would have to claim it, but he'd get immunity. Felix Frankfurter: Yes. Raphael H. Weissman: And they'd change in the statute. Formally if they ask him questions he got immunity. Now -- William J. Brennan, Jr.: Mr. Weissman do you have prosecution of information in New York, do you not? Raphael H. Weissman: I'm sorry? William J. Brennan, Jr.: Prosecution on information, rather that on indictment. Raphael H. Weissman: There are for minor crimes. William J. Brennan, Jr.: Well might, for example on the basis of testimony taken before the judge, the District Attorney prosecute by information, say your client is -- Raphael H. Weissman: Indeed. My client didn't testify, but others who do indeed. That's one of the functions and purposes of this. If a crime discloses one that could be prosecuted by information, you pick it up from here, you bring in there, you prosecute, that's all there is to it. And then one other point I want to mention is this that some attempt has been made in the brief heretofore and I think obliquely or briefly in this brief, to say that this right of representation by counsel in the criminal case doesn't apply until you have practically called the man up for trial. And verbally that was arguable before the end of term of this Court, and now even verbally that is not arguable. If a man has a right to be represented by a counsel, he has the right to have him when it is most important. If a man goes in before this judge and gives his evidence and has no counsel, then it doesn't matter if had John W. Davis represent him at the prosecution. He is a goner, because all his rights are gone and there is no way to reclaim, and one of those preliminary police investigation cases Your Honors made clear in the opinion by Mr. Justice Clark, that the right for counsel commences at the point in free trial, I think the word was proceedings, but in the scope of the setting, I take it to mean that at the pre-trial action whatever it is, where the man comes in for jeopardy. In this case if the man didn't have his counsel while he was before the judge, he will have been prosecuted later on, if they had as they say they have a case against him for crime without ever having effective representation of counsel. This case Your Honors was in the court. I am aware that I have made this point in several aspects. This was in the courtroom conducted by a judge. This was part of the judicial process, and I say to Your Honors that the Court is the one place in this world where the denial to a person charged to refuse of counsel, should not be allowed. Earl Warren: Mr. Hurley. Denis M. Hurley: Mr. Chief Justice, may it please the Court. I think I can probably clarify some of the questions that the Court has been asking by a brief reference to the order of the appellate division establishing this judicial inquiry and investigation. For the convenience of the Court, I have set out the order in an appendix, Appendix A at page 27 of my brief. And there briefly this order was made on the 21st of January 1957 by the court and signed by the presiding justice of the appellate division. And Your Honors will note that it's in the matter of the petition of the Brooklyn Bar Association that this investigation was launched into unprofessional conduct by attorneys and others acting in concert with them in Kings County. Now there's the order on page 27. Then on page 28, the order sets forth the scope of the inquiry, and the scope of the inquiry as set forth therein under the various paragraphs one, two, three, four with respect to alleged improper practices and abuses by attorneys and counselors at law, with respect to alleged, corrupt and unethical practices including the practice of solicitation in obtaining retainers, and in the subsequent prosecution and disposition of claims with respect to any other practice involving professional misconduct, fraud, deceit corruption, crime, misdemeanor and so on. Then the order provides that Judge Arkwright be appointed to conduct this additional special term with full power to compel the attendance of witnesses, their testimony under oath, the production of books and papers. That it was to begin on the 22nd of January 57, and then – I, an attorney and counselor at law, who has been duly designated by the Brooklyn Bar Association is designated to aid the justice in the conduct of the inquiry and in the prosecution of the investigation pursuant to the provisions of the judiciary law set forth. Then the last paragraph concerning privacy as you will notice from the introductory words is for the purpose of protecting the reputation of innocent persons. Now immediately following the order – oh and the one other very important factor, the last directory paragraph states that upon the conclusion of the inquiry and investigation, the justice shall make and file with this Court, that is with the appellate division, his report setting forth his proceedings, his findings and his recommendations. In other words, going back to very first case in New York that I know of where such an inquiry was ordered on the application of the association of the bar of the City of New York in the first department in 1928, in that case the appellate division said and I cited the case in my brief, Matter of Association of the Bar, that is the leading case, and in that case, the court said that the -- it had inherent power to order this investigation, but it also had statutory power to order such an inquiry, a preliminary investigation as this. And the court said, that because the appellate division by virtue of Section 90 of the judiciary law, which is printed in my brief for the convenience of the court immediately following the order Appendix B on page 30, in this statute in the judiciary law Section 90, plenary power as I can see that is vested in the appellate division although the conduct of attorneys they have regulatory control, disciplinary control over attorneys, which incidentally as I understand it from Judge Cardozo's opinion goes back to some 300 years in England, with the Inns of Court where the justices delegated their power to the members of the Inns of Court, all of which is very elaborately set forth in Chief Judge Cardozo's opinion in the Karlin case that's been referred to here. Earl Warren: Mr. Hurley. Denis M. Hurley: Yes Your Honor. Earl Warren: May I ask you one question? Under this order, that you have just been reading, did the judge have the authority to grant immunity to any witness who might come before him? Denis M. Hurley: No Your Honor, that is very interesting question and we have found that there is no such power in the justice to grant immunity. In New York it must be granted -- it must be granted by special statute to each separate court or commission or body that may exercise the power. Recently -- Felix Frankfurter: You mean the immunity if it justifies or must he -- maybe -- must he respect a claim of immunity against self incrimination? Denis M. Hurley: Oh, he must definitely respect the claim. In other words, if a witness said I claim my – I invoke my constitution the court will have to uphold it. Felix Frankfurter: I thought you probably -- Denis M. Hurley: But I thought Your Honor was talking about whether the -- Earl Warren: I did that was the question I -- that is the question I asked. Denis M. Hurley: In other words as I understand the question, and the judge here, Judge Arkwright, had not right to grant the witness immunity from prosecution and compel him into court. Earl Warren: Yes. Denis M. Hurley: As a matter of fact for the benefit of such an inquiry as this, and because we had had up to the date of this particular proceeding, we had 60 witnesses invoke their privilege, 24 of whom were attorneys and these attorneys over the last three years or so had some 9500 cases and with their plea of immunity we just can't find out, we can't get the facts from these attorneys. We have been trying to get the state legislature to pass legislation so that a judge presiding with such an inquiry as this may have the power to grant the witness immunity and thereby compel him to talk. Felix Frankfurter: Let me be clear of what you are saying? Denis M. Hurley: Yes, Your Honor. Felix Frankfurter: If a witness claimed privilege to keep quiet at an end of the inquiry that Mr. Justice Arkwright – Justice confronted in this case -- Denis M. Hurley: Yes, Your Honor. Felix Frankfurter: That is he is not given because the grant of immunity for prosecution is something else which in New York and other state is carefully guarded as to who can be given and who can't. Denis M. Hurley: That's right Your Honor. Felix Frankfurter: If this witness had claimed privilege not to testify, that would have been at the end of inquiry as to him. Denis M. Hurley: Yes, Your Honor. Earl Warren: By claiming that it would incriminate him, is that -- Denis M. Hurley: If he claimed that he would be incriminated by -- that would be the end of it. Earl Warren: Well, that's not exactly what I was -- Denis M. Hurley: We could go no further and the judge repeatedly in this case has upheld witnesses who invoked their constitutional privilege against self incrimination. Earl Warren: Yes. Now what I am getting at is this, suppose there was this in the proceeding and nothing else? Witness was asked a question and he said, judge if I answer any questions I demand immunity, what would happen then? Denis M. Hurley: The judge wouldn't have the power to grant him immunity from prosecution. Earl Warren: All right, suppose it ended right -- Denis M. Hurley: We haven't got that right. Earl Warren: All right suppose it ended right there, what would happen insofar as the witness was concerned, what would happen then? Would you proceed or would you dismiss the witness? Denis M. Hurley: We proceed Your Honor. Earl Warren: You would proceed? Denis M. Hurley: We would proceed. Earl Warren: In other words you would not recognize his demand that if he testifies, he is entitled to immunity, you would compel him to go further and claim his privilege against incrimination? Denis M. Hurley: That's right Your Honor. Felix Frankfurter: But Mr. Hurley nobody can claim immunity from prosecution merely by asking for it. He can only claim that in answer to or as an equivalent to his privilege against self incrimination. Denis M. Hurley: That's right Your Honor. Felix Frankfurter: Witness can say Your Honor; I want immunity before I talk. Well, the judge says what are you claiming immunity for, immunity from prosecution? You can't claim immunity for prosecution unless you claim the privilege against self incrimination. Denis M. Hurley: That's right Your Honor. Earl Warren: As I understand (Inaudible) that too. The only thing I understood a little while ago from the question that if he had just walked in there and had demanded immunity and nothing else, he could have been excused -- Denis M. Hurley: No, he had to claim his privilege. Earl Warren: I think Justice Frankfurter you and I are not in disagreement. Felix Frankfurter: He can't do that before a regular court, Mr. Hurley, can he? Earl Warren: No, you can't do that in any court. Hugo L. Black: He would have to claim immunity and he would have claim privilege on each question that was asked no matter how many -- Denis M. Hurley: That's right Your Honor. Hugo L. Black: He would be in there without a lawyer. Denis M. Hurley: That's right. Hugo L. Black: Now you don't mean to say that do you, that by just refusing to answer the first question on the ground it might incriminate him, you would be let alone until you're going out? Denis M. Hurley: Oh, no we would ask a series of questions. Hugo L. Black: Continue to ask questions. Denis M. Hurley: I continue to -- Hugo L. Black: Somewhat like it's done usually when a witness gets on the stand and they make him claim his privilege, and claim his privilege and keep on claiming his privilege. Denis M. Hurley: That's right and then I have usually ended with a sort of anomalous question Mr. Jones -- as I take it from your answers, you are going to make the same claim with respect to every question I ask you. No matter what the question is, you are going to claim -- you are going to invoke your privilege against self incrimination. Felix Frankfurter: Well, just as a matter, can we ask you – Denis M. Hurley: Yes Your Honor. Felix Frankfurter: Justice Arkwright or any other judges in New York allow you to go on and put substantially the same question which to his mind is clearly relevant to the claim of the privilege forever for hours? Denis M. Hurley: Oh! No, no, as a matter of act -- oh as a matter of fact. Felix Frankfurter: (Inaudible) Denis M. Hurley: Well, in this particular case without the claim of immunity, but claiming that he shouldn't be compelled to testify because his counsel wasn't in the courtroom. I think in one case the Judge held him in contempt on 16 questions and in the other case on 24 questions. It was probably all over in each instance in -- William O. Douglas: You have the rule of New York that if a witness answered one question and he has waived all of the his right to protest to -- Denis M. Hurley: As to that, as to that particular matter we have the matter of waiving? William O. Douglas: Like the Rogers case in this Court? Denis M. Hurley: Yes it maybe waived, it maybe waived by answering relevant questions as possible. William J. Brennan, Jr.: Well Mr. Hurley have you had occasion then when a witness has answered and then later evoked the privilege to have the judge rule that he could not? Denis M. Hurley: No we haven't, we haven't had that. It's either been an outright invocation of the privilege or the witness has testified. William J. Brennan, Jr.: Well in other words you have never raised with the judge the question whether in fact the privilege was available as to the particular question to the witness? Denis M. Hurley: I don't follow you on that Your Honor. William J. Brennan, Jr.: What's your name, I plead the – privilege against self incrimination, have you ever challenged that to the judge at that time. Denis M. Hurley: No, the judge -- the Judge Arkwright and now Judge Baker has upheld every witness the way they've invoked a privilege. William J. Brennan, Jr.: Without regard to what the question was? Denis M. Hurley: That without regard to what the question is. He is -- both judges are very conscious of this rule about the link in the chain. Earl Warren: While that matter is true, why -- why did they ask 16 questions in one case and 24 in another before the witness is excused or before a general question was about -- concerning his refusal to testify was given, why 24 questions. Denis M. Hurley: Well it was a matter of probably another 10 minutes Your Honor. And as a matter of fact it maybe, as I recall it, I think that with respect to these witnesses, there might have been different counsel questioning them. I think I, one of my assistants started with one and then I added some other questions, he was sick, he wasn't well and he has to be relieved and I took over. Earl Warren: He left -- Denis M. Hurley: Frankly I wasn't satisfied with the questions my assistant had asked so then I asked these others. Earl Warren: Do you let more than one person interrogate the witness in those proceedings? Denis M. Hurley: Only in this, only in this particular case, and in this particular instance where this assistant of mine happened to get sick. He -- judge couldn't hear me. He said he had a terrible cold and he asked me if I please take over and ask the questions. Now referring if Your Honors please to the statute this will answer some more questions, I think I was up to the point of saying that the appellate division has full control of the lawyers. And this order that I have just referred to is a statutory order in this sense that it follows almost literally and in some cases verbatim Section 90 of our judiciary law. And beginning on page 30 I set forth the pertinent parts of the judiciary law pertaining to such a proceeding as this. And then if you get down to about the middle of page 31, you'll see that there is language there to the effect that the presiding justice of the appellate division to which charges of professional misconduct against an attorney and counsel at law had been presented may make an order directing, and then it talks about expenses, how the expenses have to be paid, and then down below that that would as to a specific disciplinary proceeding against attorney A. Then down below that the presiding judge may also make an order directing the expense of a preliminary investigation in such charge, to such charges to be paid by the county treasurer of the county and so forth within the judicial department. And the subdivision 7, that it shall be the duty of any district attorney within the department when so designated by the presiding judge to prosecute all proceedings for the removal or suspension of attorneys, and down below that, or in county's of a certain size that presiding justice may appoint an attorney and counsel at law designated by a duly incorporated bar association approved by him to prosecute any such proceedings and so on. Then we come to subdivision 10 which is the statute which my friend attacks as I say for the first time in this Court, never, never raised in the courts below. Now if Your Honors would glance through subdivision 10 of Section 90 set forth in full on page 32 about any statute or rule to the contrary not withstanding all papers, records and documents upon the application or examination of any person for admission to the bar and so forth or in any compliant, on any compliant, inquiry, investigation all these papers shall be sealed and deemed private and confidential and then it goes into the question that the court may on good cause show, divulge these papers and so forth. William J. Brennan, Jr.: Now those are only papers related to admission? Denis M. Hurley: No, admission of above and then it gets into and upon any complaint inquiry, investigation, or proceeding. William J. Brennan, Jr.: May I ask there Mr. Hurley, I notice that the order makes provision for findings as well as recommendations? Denis M. Hurley: That's right, findings. William J. Brennan, Jr.: Would findings include the for example some finding as to witness or does findings relate only to findings as to lawyers under -- Denis M. Hurley: We think both and judges have so acted. In other words, if a doctor, we find a doctor, who is just as bad as a lawyer or if a insurance adjuster we find for example an insurance adjuster for an insurance company, suppose he is taking bribes and we have evidence of that that he is being bribed in these cases. William J. Brennan, Jr.: Well does this mean this time then as to the appellants here, there might be finding say that they were dropped in someway, are those findings under Section 10 might be released at the discretion of the appellate division even though they may never have been prosecuted for the crimes suggested by the findings? Denis M. Hurley: Yes that's -- you see the duty of the judge and my duty I think this answers another question of the court, our job ends when judge, when the judge reports his proceedings, his findings and his recommendations. Now in answering a question before my friend said, maybe I could elaborate on that. Well what the appellate division, what the judge has done so far is to with respect to lawyers? Well that breaks down into two categories, if there is an adverse report. It breaks down, was there some evidence of criminality here on the part of the lawyer and the appellate division has decided under the judiciary law to send the whole package as it were to the district attorney, they say the district attorney has it now for criminal investigation, he may as well have it for disciplinary proceedings too and under the statute I've just read the district attorney maybe designated to conduct a disciplinary-- William J. Brennan, Jr.: When you said for a criminal investigation did I correctly understand that maybe that on the basis of the findings and evidence alone there could be a prosecution and information without further criminal investigation? Denis M. Hurley: I don't concede -- I don't understand it that way Your Honor, because what we do, what Judge Arkwright does in this preliminary investigation -- he listens to the witnesses, he listens to the proof and the exhibits we give and when we are all through he sends out, he sends these the stenographer's minutes, the exhibits, he sends the whole kit and caboodle to the appellate division with recommendations. William J. Brennan, Jr.: Well now suppose the appellate division sends as you say the package to the -- Denis M. Hurley: Well then -- the appellate division has been very careful about what it does in these matters. It doesn't appear here but what it does is this. It looks over what the judge submits, conferences in the court with the seven judges, and then they determine whether or not follow the recommendations of Judge Arkwright. They always -- in some cases they haven't followed them. They haven't followed them. In one case where I recall he recommended criminal proceedings they didn't follow that, they just sent it for disciplinary proceedings. Now then if the criminality involved and when it goes to the district attorney. The appellate division has been very careful not in saying that it would refer the material to the district attorney, but they make an order first they made resolutions and now they make orders in this way. And they say that Mr. Justice Arkwright and then necessarily the counsel may in their discretion if they see fit turn over material to the district attorney. In other words, they are being, as I understand, they're being very careful there because since Kings county is in the second judicial department if there should be criminal prosecutions later, the matter may eventually get back on a criminal appeal to that court and the appellate division doesn't want to be put in a position of having prejudged the matter. So that they just do it by this resolution and grant us permission to tell the matter is over. Felix Frankfurter: You interested me as an old New Yorker in saying that the district attorney begins -- conduct disciplinary proceedings and (Inaudible) New York.-- Denis M. Hurley: Oh, it's through the whole state Your Honor, under the -- Felix Frankfurter: (Inaudible) New York on the mechanism of the Bar Association. Denis M. Hurley: Usually it is. This is -- I don't think it's -- as far as I know it's never been done before. I think this is the first time that the appellate division has done it this way and I asked them why they were doing it way, and they put it upon the basis that he gets the criminal -- if it's criminal he goes ahead with criminal, if he doesn't find enough to indict or to obtain information in one of the lower courts, then he goes ahead with disciplinary proceedings. It's the first time it has been done and then I asked him why, in addition to that, and they said they wanted to save money. In other words, if they designate a lawyer appointed by the Bar -- recommended by the Bar Association, he does the work, he keeps track of his hours and he eventually submits his bill with a big long affidavit to the -- Felix Frankfurter: You also have to balance a budget, do you? Denis M. Hurley: Beg your pardon? Felix Frankfurter: You also have to balance a budget. Denis M. Hurley: Oh yes indeed, yes indeed. We're held to strict accountability for that. We have – we have to account to the comptroller and the City of New York for every penny that's spent there. William J. Brennan, Jr.: Well Mr. Hurley, have you a case in exercise or been given this discretion to turned over to the district -- Denis M. Hurley: Oh yes, we've done that. William J. Brennan, Jr.: And you have done it. Denis M. Hurley: Oh yes. William J. Brennan, Jr.: Now in those instances where you have done it, has there been an independent criminal investigation or have there been -- Denis M. Hurley: Independent -- that's what I was going to say as to our limitations. We find the facts, Judge Arkwright and now Judge Baker finds the facts and reports to the appellate division. The appellate division has to study it, and then it's the appellate division that takes some action or doesn't take any action. If they say it goes to the District Attorney, then the District Attorney considers the whole thing de novo. He's an independent elected official. He decides whether there is a crime here and frankly I'm sure my opponent will go along with me as a practical proposition, there haven't been many criminal prosecutions and those if there have been, they very frankly too haven't been too successful. The jury seemed to be very sympathetic to lawyers and to others in this type of matter. Felix Frankfurter: The potential offenses, the potential that may arise out of your investigation are not so petty and casual that they do not require a Grand Jury proceedings, do they? The order must require -- Denis M. Hurley: Oh yes indeed. Felix Frankfurter: So that the District Attorney must make submissions to Grand Jury to get an indictment. Denis M. Hurley: I was going to come to that. Our matters go to the appellate division, the appellate division to the District Attorney, if there is any criminal aspect from the District Attorney, he's got to decide what he wants to do with it and then he in turn must go before a Grand Jury and present the matter, and then it's up to the Grand Jury whether or not to indict. William J. Brennan, Jr.: Not so if it's the kind of offense that maybe prosecuted under information though? Denis M. Hurley: Well, he could do it on information, but that's as to misdemeanors conducted on what we call our Court of Special Sessions. Felix Frankfurter: That's what I meant these are not -- I'm not asking of that order, if there is a case, it's an important case, isn't it? Denis M. Hurley: We've tried to keep it that way, in other words -- Earl Warren: Is barratry – is barratry an indictable offense in New York? Denis M. Hurley: I think it is Your Honor, but I don't think I've heard it -- I've ever heard anybody indicted for it. As I recall that story up litigation, I've never heard of an indictment for it. Earl Warren: (Inaudible) appeal to me Mr. Hurley. If you bring -- if in these investigations, you bring a witness before the judge with the idea in mind of making findings against him, accusing him either of criminal offense or some professional offense, and if that record, with those findings is to be given to the lawyer who prosecutes this man while he is on the witness stand, why in reason shouldn't that man be entitled to have someone present in court to represent him, while this proceeding is going on? If you are to make a finding that may even result in his going to jail or in destroying his professional reputation, isn't it consistent with due process and legal proceedings of all kinds to give that man an opportunity to be represented by counsel? Denis M. Hurley: Well of course that question Mr. Chief Justice goes to the very heart of this case. Earl Warren: Yes. Well I ask you -- Denis M. Hurley: It goes to very heart of the case. Now of course, I'm in such thorough disagreement with my worthy advisory here, that I wouldn't know where to begin to answer him. I disagree with him on the facts, on the law, on jurisdiction, on the precise questions to be determined here are not everything. Felix Frankfurter: You've got a package too haven't you? Denis M. Hurley: I have a real package in order to answer my opponent and that comes down to answering the question of the Chief Justice. But Justice Harlan asked my opponent a little while ago about whether this was the substandard procedure and my friend said in a few cases. Well I can think off hand of about nine or ten such proceedings, that before I got into this one, frankly two years ago I had nothing, never had anything to do with a disciplinary proceeding and had no idea what this was all about. I looked at the precedents and I found them in Kings County and Queens County and Westchester County and Nassau County, in New York County, presiding Justice Botine, I think it was in 1940 as an Assistant District Attorney had conducted just such a proceeding as this. There were proceedings all over the state, and as a matter of fact, this particular matter is being watched with great interest, because there is one about to be launched in Nassau County on Long Island and they have been in constant touch with me from Buffalo from the Fourth Department that they're thinking of an investigation up there. Earl Warren: Now if you can't answer that question that I asked you, would you mind answering this one? Does the judge have the power to determine whether counsel can be permitted to enter or whether he shall be kept out? Denis M. Hurley: Well the appellate division put that in the matter of Anonymous case as a matter of this discretion. Personally my own view is that there he was according that he would be according the witness of privilege, that the witness would have no right to it strictly. In other words – in other words, I take the position -- Earl Warren: He has the discretion then to either admit them or reject them? Denis M. Hurley: That's right Your Honor. Earl Warren: Well that's all I ask. Denis M. Hurley: Yes. Now as to the other question I was coming -- Speaker: (Inaudible) Denis M. Hurley: No Your Honor, I'm sorry, but as I read it, and it's a matter of practice, it's not mandatory. That didn't to be in the order. It doesn't need to be conducted in private and as a matter of fact in the very first case that I referred to before, Association of the Bar, the City of New York in 222 Appellate Division and that's the case the investigation where this matter of Karlan went to the Court of Appeals, there, there was no privacy. There was nothing in the order about conducting it in camera or in secret. So what Judge Wasable did there, and I think very wisely, when an attorney was called in and was to testify, Judge wasable, who said counselor, your conduct is going to be looked into here, we're going to inquire about all these negligence cases you have, do you want a public hearing or do you want it in private? Speaker: He gave them an option. Denis M. Hurley: He gave them an option, and if they took the option, whichever option they took that was it. Felix Frankfurter: Well Cardozo request that? Denis M. Hurley: Yes that's in the Karlan matter. Earl Warren: That is not in this case. Denis M. Hurley: No here the appellate division directed in its order that it be conducted in private. Now to come to -- Tom C. Clark: (Inaudible) Denis M. Hurley: He did Your Honor. Tom C. Clark: He was the investigative justice also, was he not? Denis M. Hurley: Yes Your Honor. Tom C. Clark: Are you familiar with Henry Oliver case out of Michigan (Inaudible) Denis M. Hurley: I am Your Honor Tom C. Clark: Does that have any bearing on that? Denis M. Hurley: Well I don't think so for this reason, this was a summary contempt, criminal contempt as we call it committed in the presence of the justice. Everything had happened before Judge Arkwright and what I was going to come to, except that it's been taking so much time to get across the statutory provisions in the order, is that the time factor here was -- is I think of vital consideration. The interesting thing here is that these witnesses were first called in as witnesses on December 4, 1957 they were called in. And on the plea of their attorney, there was different counsel at the special time, the matter was adjourned, that testimony was adjourned, pending this appeal in matter of Anonymous, which was then pending in the appellate division. Now the -- that was an unrelated matter to this particular situation except on the sense it arose out of this inquiry and M. Anonymous involved an attorney. Now my friend says it's -- his case is so different and the appellate division didn't find itself. As a matter of fact there was so much criminality in the M. Anonymous case that he was later indicated by the grand jury in King's county and tried in the county court. But on that day December 24 -- December 4th there was the attorney for the appellants who in the presence of the appellants walked up to my assistant counsel as soon as they got the adjournment and came out of the courtroom, and these were his words according to the record, counsel for the appellants wanted to know from my assistant exactly what was wanted of his clients in this matter. And then it was that my assistant without any previous authorization or consultation with me or the judge or anybody else off the record and as a favor to them, for which he was thanked, gave his views as to what evidence we had available that are concerning them and there was his language that's been quoted in both briefs about a sufficient evidence to present to the grand jury. Earl Warren: Was it truthful, the statement that he made? Denis M. Hurley: As far as I am concerned Your Honor, if Your Honor please it was a truth -- Earl Warren: Well you said it was without authorization and so forth and so -- Denis M. Hurley: Yes, well it -- Earl Warren: I wanted -- is it -- you take it as truth? Denis M. Hurley: It was his, it was his opinion, it was his opinion of what the evidence that we had available at that moment would show. Felix Frankfurter: (Inaudible) Denis M. Hurley: Oh no. Felix Frankfurter: All right, all right. Denis M. Hurley: The only, the only point that I make with reference to it is that when my assistant said and this was his view, he told it preliminarily-- Earl Warren: Where is his testimony? Denis M. Hurley: This is -- I am picking up my adversary's brief, he's got it quoted at page 89. Felix Frankfurter: Record at 115? Denis M. Hurley: Record 115. Earl Warren: 115, yes I have it here. Denis M. Hurley: The point that I'd like to make in that connection is where my assistant said first he talked about the fact that we were interested primarily in attorneys, we were looking into the conduct of attorneys. And he wanted to know whether these young men, licensed private detectives, whether they had taken these statements, for what attorney's statements were taken, and whether the tampering was done by them or their employees or at the direction of some attorney. So that he was indicating that we were primarily interested in lawyers and what lawyers did. Then he goes on and he says I further stated that in my opinion there was prima facie evidence in the event that the clients decided to plead the Fifth Amendment to refer this matter to the district attorney. Now my friend in this Court and courts below and the other attorney for these appellants in the courts below say that that was a threat of prosecution by the district attorney. Well I think if you study that language carefully and honestly this is what I believe my assistant had in mind since we were concerned with the conduct of these attorneys. I further stated in my opinion it was prima facie evidence in the event the clients decided to plead the Fifth Amendment invoked their, rather than it should have been the New Yorker constitution, but to invoke that constitutional privilege to refer the matter to the district attorney for prosecution, I don't think so. We wanted these men to talk and I think that that language is far more susceptible. Though I am going to take, I am going to take for granted in this argument what my, what my adversary says it means but I think it's far more susceptible of the proposition that these young men would probably say to the district attorney in order to obtain immunity from prosecution rather than, rather than they were going to be sent there to be convicted for crime, because that wouldn't do our inquiry any good. Earl Warren: Well it seems to me that the language at the beginning of his answers is a little more cryptic and a little more challenging than you suggest what you have read. His answer was, my recollection of the facts as they took place on December 4th was that following Mr. Zangara, this is on top of page 115, was that following Mr. Zangara being before the court and asking for an adjournment that he and his clients approached me in the outer foyer outside the courtroom and Mr. Zangara as spokesman for the group, asked me exactly what was wanted of his clients in this matter. I, at that time, told Mr. Zangara that all, I don't know my exact language, but I indicated that we did not intend to pussyfoot with them. Now that's pretty -- that's rather strong language it seems to me if taken together with the rest of it. It isn't -- it isn't just I'll do you a favor and I'll be glad to tell you what to, what we have got here and so forth and -- Denis M. Hurley: Your Honor please, the point where I say that favor was involved, is that my assistant talked at all. He had a -- he had this lawyer Zangara -- Earl Warren: He should have had counsel too and talk with these people outside of the court room. Denis M. Hurley: He had Zangara their lawyer and these two appellants, these two licensed private detectives, who -- who were so fearful of what might happen that that -- that the reason they ultimately said that they wouldn't testify without the presence of counsel after the court and I had repeatedly told them the matter had been decided by the appellate division and leave to appeal had been denied in the Court of Appeals, one of these young man said, this to the court, the court if you wish to go out I will suspend for a few minutes and let you go out and here is the answer of this witness, the witness, no Your Honor because I understand the United States Supreme Court has not ruled on it yet. Now these were not ignorant layman as my friend would have you believe. He is a licensed private detective and they are also insurance brokers. Felix Frankfurter: Have you ever heard claiming the privilege against self incrimination, these detectives? Denis M. Hurley: I'd like to come to that Your Honor -- Your Honor please I really think that that's what that's what they are concerned about that if they pleaded, they maybe in trouble with the State of New York on their licenses. They don't want to plead it and this is the device that they are using to avoid having to plead. Hugo L. Black: Why would there be in trouble with the State of New York where they are licensed? Denis M. Hurley: I beg Your Honors pardon. Hugo L. Black: Why would they be in trouble with the State of New York with their licenses if they claimed the constitutional privilege? Denis M. Hurley: Well I think I don't -- I haven't got the specific case in mind if Your Honor please as to what the licensing department would do here, but I am sure there would be a very serious question if a young man comes in to be a licensed private detective that he certainly got to answer any proper questions that the authorities would put to him. I don't say it's strictly analogous with this Court's recent decision in Lerner against Casey and in the matter of the Philadelphia school teacher, but I would say if they are asking for the privilege of a license from the State of New York, they certainly got to answer any questions that the authority wants to put to them. Felix Frankfurter: But it's analogous to the case of a policeman claiming a privilege and still wanting to be a policeman? Denis M. Hurley: And still wanting to remain on the police force, I think it's the same thing. May I say this -- Hugo L. Black: You mean, as I understand it, that if the man had, he is not allowed to have a lawyer there, apparently he can't refuse to testify on that ground and if he claimed the privilege, he would be denied a license, to continue in the business, if he claimed the constitutional privilege. Denis M. Hurley: Well of course it's not strictly on that ground Your Honor. It's refusing to answer the questions of his superior and to answer them with candor. I think that's going to be, as a matter of fact that's probably going to be one the problems that we have in this case, with all of the attorneys claiming their privilege here. It's going to be the same sort of thing. Felix Frankfurter: Mr. Hurley your time is – running on the New York time and I hope you can come in back with Chief Justice's question, which you say that heart of this case -- Denis M. Hurley: Yes. May I just in answer to that question paraphrase or reword the question as I see it that's before this Court and this will sum up everything I think. In other words, the question as I see it is do these appellants, as mere witnesses, have a constitutional right to the presence of their counsel in the hearing room in what has been called by the Court of Appeals as a quasi administrative proceeding. In other words, the appellate division could have conducted this investigation itself and Judge Arkwright and now Judge Baker is merely the nominee of the appellate division and I am assisting the judges. It's a quasi administrative in that sense. It's non-adversary. It's non accusatory, it's non-prosecutorial and it's a preliminary fact finding inquiry that doesn't end in any judgment or decree and establishes the rights of no persons whatsoever. Now I would like, I don't know whether I got time. Earl Warren: That wasn't my question and that's going to be your question and I don't -- you are right to answer it your way. Denis M. Hurley: Now that's the question, on the merits as to that Your Honor. Earl Warren: The question that I -- Denis M. Hurley: I'd like to give you a three fold answer in capsule form, one we rely upon the decisional law of the State of New York as to the right of a witness to counsel which has remained unchallenged for 73 years. I am going back to a case that was decided by the Court of Appeals in 1885 and the right of a witness to counsel didn't come up again, until came up in this proceeding in matter of Anonymous. That is 73 years unchallenged in the State of New York till it was challenged in matter of Anonymous and now here again. We rely upon the decision of this Court in matter of Groban, decided two years ago. And thirdly I don't want to sit down without saying this Your Honors that we rely upon the public policy of the State of New York expressed by the people through their legislatures that witnesses in such an inquiry as this have no right to counsel. In the back of my brief, in the back of my brief Your Honors, the very last pages, you will find on page 41 Appendix E, the Civil Rights Law of the State of New York. There on page 41, 73 five different agencies are given, are defined as agencies where a witness is given the limited or restricted right to be accompanied by counsel and then judicial inquiries were not included there. That was in 54. So in 1958, a bill was introduced which I have set forth in the last two pages of my brief page 43 and 44. A bill was introduced in the legislature in New York to amend the civil rights law in relation to the right of representation by counsel of persons called as witnesses in certain inquires and investigations. That bill would have answered this case and would have answered the contention of my opponent, because it doesn't allow, even the bill doesn't allow in a judicial inquiry or another investigation, it doesn't allow witnesses in blanket form, every witness, the right to counsel but only witnesses whose testimony, and I am reading from the bill, may tend to involve himself or other persons in any subsequent criminal or quasi criminal prosecution. I submit that on that basis -- Earl Warren: Was that bill enacted? Denis M. Hurley: That bill was not enacted Your Honor, if Your Honor please. Felix Frankfurter: May I ask you this Mr. Hurley -- Earl Warren: What is its relevance here? Denis M. Hurley: I say that the people of the State of New York having enacted the civil rights law and having granted in five different investigations by five different agencies, the right to counsel to witnesses in limited form, then when the, the assemblymen came along and introduced the measure that would have amended that and allowed counsel in a judicial inquiry under certain circumstances and that failed a passage that this matter is very much of a great concern to the people of the State of New York through their legislators. And I submit that as a proposition of whether with that consideration going on in the State of New York, this Court should intervene or interfere and overrule and predetermine for the people what has been decided now as a matter of policy. Felix Frankfurter: How long have you been stating (Inaudible) Denis M. Hurley: Since it started Your Honor, since January 1957. Felix Frankfurter: Would you mind stating what you regard to be the practical difference if every witness is summoned before in this enquiry to bring his lawyer along. Denis M. Hurley: Your Honor please quickly we had 2500 witnesses up to the time we called these witnesses in. We examined 2500 witnesses in private. This is an immense proposition and I have set forth more pertinent parts of Judge Arkwright's report on page 33 of my brief. Just think Your Honors in -- between 53 and 57, 122933 statements have retainer filed in Kings County, how can we possibly even spot check that number, but we -- Speaker: (Inaudible) Denis M. Hurley: What – Speaker: (Inaudible) Denis M. Hurley: Most of the – most of the witnesses, it is hard for me to say, I would say one to four, or one to five, in other words every witness -- if we call five witnesses, it would be one lawyer in the five. In other words, we have to call in plaintiffs and claimants, and doctors, and police, and labor delegates and so forth. I suggest this to Your Honors that of these witnesses, we examined 726 in court up to June 11th, by the time that this matter broke and if witnesses were allowed -- counsel was allowed for witnesses in these 100s of cases, it seems to me, as was pointed out in the opinion of the Groban case, that we have -- to say that there would be delay, that this would be cumbersome, that this would be unwieldy, and add unduly to the cost of this well. I just don't see any possibility of our ever getting through and I might suggest to Your Honors that up to this very moment, the expenses have run over $200,000 a year where -- the City of New York has paid over $400,000 to date and if witnesses were allowed counsel, it would just make it that much more cumbersome and make just that much more delay and I don't know when we have to get through with the investigation. Earl Warren: Well I suppose if there are four lay witness who run for the lawyers that the numbers, the numbers that you gave us isn't the sort of materials might otherwise be, because I suppose most of those and a great many of them are voluntary witnesses who would have no case and have a lawyer who were not under investigation, but how many people are potential defendants among those that you examined? Denis M. Hurley: Well, that's very difficult to say. I'd say before we get through we have got -- if we only examine into lawyers who filed say a 100 statements of retainer a year, now that's about a two a week allowing two weeks of vacation and we file a prima facie, lawyers just do not get two cases a weekly legitimately. If the appellate division goes along with the thinking that is prima facie course for investigation, for inquiry. We call them up and say how did you get a 100 -- how do you get two cases a week. The law firms in the city go along and they don't get ten, they don't get 12, they don't half a dozen in negligence cases and these lawyers are not experts. Some of them had never tried a case in their lives. They are settlers and what this investigation as Judge Arkwright's report will show, what the y are actually doing is they are conspiring with doctors, with collision shop and with others all -- and then they bribe the man in the insurance company so that it is all coming around to get to these golden reserves of the insurance companies. Earl Warren: Well, I am sure you realize Mr. Hurley that no one on this Court would be out of sympathy with an investigation of such matters because they have been involved with some experience with that situation, and what we're interested in only is whether the individual who is called before a secret investigation at that time has his federal rights protected under the constitution, and that's what these questions at least I have asked are directed to them (Inaudible) sympathy investigation of this kind to determine what to -- Denis M. Hurley: I can readily understand that Your Honor. Now my friend in concluding says that with the last place that – of all places the witness was -- should have the right to counsel in before a justice of the Supreme Court and before a court. I take this as a contrary view. It seems to me that the last place where a witness, a lay witness particularly should need counsel is in before a justice of the Supreme Court of the State of New York. Now I say that on this basis that I conceive it to be the duty of a justice of the court, and I know that judges always exercise it persistently in every case that I ever heard of, they turn around and protect the witnesses the minute the witness is beginning to get into danger. I regard that as a duty of the judge to look, to see to it that the witnesses are fully protected. Felix Frankfurter: May I ask you this? Denis M. Hurley: Yes. Felix Frankfurter: As a matter of practice the witness says Your Honor I would like to go outside and talk to my lawyer. Denis M. Hurley: Yes Your Honor. Felix Frankfurter: Would that request be granted in the matter of course? Denis M. Hurley: Yes Your Honor. Felix Frankfurter: Would it be granted more than once in the course of his enquiry? Denis M. Hurley: Yes, Your Honor. Felix Frankfurter: So that difference really unless he'd say not only would he have a -- unless the claim is and I haven't heard him say that not only may he have counsel sitting next to him, but counsel may not merely -- he may not merely be entitled to have the advice of his client – of his counsel but he may have the right of examination through his client, what difference is there between going out when he wants to (Inaudible) than having him sit next to him? Denis M. Hurley: I don't see any difference Your Honor. Hugo L. Black: Do you think Mr. Hurley if we can decide this case as to the principle that's before us on the basis of the fact that you with your idea of ethics and so forth will let a lawyer -- let a man go out and talk to your lawyer, does the law require that he be granted that privilege? Denis M. Hurley: No Your Honor. Hugo L. Black: Does that depend entirely on the judge and the lawyers who are conducting the investigation? Denis M. Hurley: I would say so. Hugo L. Black: Would you say that all judges are precisely the same in connection with their treatment of witnesses and defendants? Denis M. Hurley: No, but I don't think -- I don't think, I certainly wouldn't make any presumptions as to it or I presume that any such thing. Hugo L. Black: I am convinced that you wouldn't. I am convinced that you wouldn't, but we can go on the basis if the – of power in that realm, that a judge and the prosecutor can't deny the right even to go to see their counsel? Can we decide the case on the basis, within the instance that which you are permitted, you have permitted that to be done? Denis M. Hurley: Well, I certainly think you can decide it in this case Judge Black -- Hugo L. Black: Well, I -- Denis M. Hurley: You have got a complete record here -- Hugo L. Black: (Inaudible) Denis M. Hurley: Every word taken down by an official reporter there isn't a thing that happened in this case that isn't contained in this record. Felix Frankfurter: Mr. Weissman claimed -- Denis M. Hurley: Every word of it. Felix Frankfurter: Mr. Weissman claimed that he can come here on appeal on the basis of how this statute was construed in his client's case, not in some abstract client case. Denis M. Hurley: Well, so far as this -- that's true, and I am not going to talk too much because I haven't got time now, but I wouldn't have too much time to talk about jurisdiction. I think Your Honors will look in vain through subdivision 10, the statute he attacks to find anything about depravation of right of counsel. There is no such thing in the statute. So he takes it direct appeal on the theory that this statute -- he is claiming this statute is unconstitutional and he is claiming it for the first time in this Court. There is no word and he is so conceded here there isn't word in this record at the additional special term, the appellate division, the Court of Appeals anywhere that he ever claimed that this statute was unconstitutional and there isn't a word in it that deprives a witness of the right to counsel. I submit Your Honor that both on jurisdiction and on the merits we should prevail. Raphael H. Weissman: Mr. Chief Justice, I have reserved 5 minutes in my (Inaudible) Earl Warren: Well, of course whatever time you have left the record show you have one minute, but you may have your one minute, whatever the time is, you want to take it right now, you may or it -- Raphael H. Weissman: Well, I do it very quickly perhaps (Inaudible). I want to make answers to unfinished questions from bench, first to say that every witness would come with a counsel that's partially (Inaudible). It isn't to claim that every witness would come. If every witness came with the counsel this investigation would never be finished. That doesn't help this problem. It's only such a witness as becomes the target of the investigation who then becomes really a defendant who has the right for counsel. And that brings the numbers down so that the significance of all the figures given, disappear. The claim that the New York Court of Appeals decided that a witness hasn't got right to counsel is true, but that has nothing to do with this, if this man weren't in a position of a witness these appellants, to what somebody else did, I wouldn't claim their right to counsel and they wouldn't have it. Only when it became apparent that they no longer witnesses, but defendants, targets of the investigation, then they were entitled to counsel. And as Mr. Justice Whittaker asked the question that, it had been cleared up and this is the most important thing. It is Mr. Hurley and the judge now who without discretion on the part of the appellate division referred these matters to the district attorney for prosecution. Now I was handicapped. I suspected that myself. Mr. Justice Arkwright filed his final report and I wrote a letter for appellate division en banc asking for a copy of that report for transmission to this Court in eight of the pending cases and the court met in en banc and denied my request. I think the counsel ought to produce here for the information of this Court the final report of Mr. Justice Arkwright, and that will tell you precisely the number of witnesses, the number of people who were targets of the investigation, what can they do with the evidence and how it is done. And it will clarify the question asked by Mr. Justice Whittaker as to whether there is some intervening discretion involved. Even if they were, the case is not much weaker than it was, but now it been made perfectly clear, and I think the report ought to be produced so the Court should have it, that there is no intervening discretion. As Mr. Hurley and the judge themselves are a norm of the prosecution. Thanks. Earl Warren: Mr. Hurley is that report – would that report will be available to the Court? Denis M. Hurley: I would say it would be appellate division -- if the appellate division would release it and as a matter of act I have put in my brief as Appendix C the report of Mr. Justice Arkwright that was right up-to-date at the time this thing happened. This came about in April, the examinations were in April and these young men were held in contempt and Judge Arkwright report was dated June the 11th, published June 23-- Felix Frankfurter: That's earlier report. Denis M. Hurley: Now he is talking about a report that was just made the end of the year while all this was going on, it would certainly -- Felix Frankfurter: Were all the reports made for the appellate division? Denis M. Hurley: All reports -- Felix Frankfurter: Well they are not made directly the Kings – Mr. Silver, the Kings County -- Denis M. Hurley: Oh! No we just report to the appellate division. Felix Frankfurter: And they can do what they please with it. Denis M. Hurley: And the appellate division that -- Earl Warren: If they are available it might be helpful otherwise not – Denis M. Hurley: I shall take that to the appellate division.

Warren E. Burger: We will hear arguments next in the United States v. Ward and others. Mr. Kneedler, you may proceed when you are ready. Edwin S. Kneedler: Mr. Chief Justice, and may it please the Court. This case is before the Court on a writ of certiorari to the United States Court of Appeals for the Tenth Circuit. The question presented is whether a proceeding to recover a civil penalty under the Federal Water Pollution Control Act for an oil spill is a criminal case within the meaning of the Self-Incrimination Clause of the Fifth Amendment. The issue arises because of the interplay in this case between the reporting and penalty provisions of Section 311 of the Act, which I shall briefly described. The Federal Water Pollution Control Act which is now commonly known as the Clean Water Act establishes a comprehensive program for restoring and maintaining the integrity of the Nation's waters. Section 311 is specifically directed to the problem of oil spills and discharges of hazardous substances. This provision was first enacted in roughly its present form in 1970, principally in response to the widely publicized oil spill in the Santa Barbara Channel and the break-up of the tanker Torrey Canyon which caused extensive damage to the coast of England and cost better than $8 million to clean up. Section 311(b)(3) states the basic prohibition which is against the discharge of harmful quantities of oil and hazardous substances into navigable waters of the United States, adjoining shorelines or into the seas contiguous to the United States. The Act provides for a national contingency plan to deal with oil spills and hazardous substance discharges when they occur and it also authorizes the President to provide for the clean up of those discharges unless the President is satisfied that the owner/operator of the vessel or facility where the discharge occurs will adequately clean it up. In order that the Federal Government can insure that these clean up and mitigation measures are taken promptly and thereby limit the ensuing damage, Section 311(b)(5), one of the sections in which the issue in this case centers, requires the person in charge of the vessel or facility to notify the appropriate agency of the Federal Government immediately when a prohibitive discharge occurs. The failure to do so is a criminal offense. Congress was sensitive to the Fifth Amendment concerns of this reporting requirement, however, and expressly provided in it that the notification to the appropriate agency of the Government and information derived from exploitation of that notice may not be used in any criminal case except in a prosecution for perjury or for submitting a false statement. While the Government does clean up the discharge rather than leaving it to the individual owner/operator to do the Government can in return recover the cost of the clean-up from the responsible owner/operator, except that the owner/operator has statutory defense as to liability in certain cases such as where the discharge was caused by God or an act of war, it was the responsibility of the United States or the third party. Moneys recovered from the owners/operators for the Government's clean-up costs are then in turn paid into a special statutory revolving fund established under the Act and this revolving fund is then used to clean up other oil spills and is in turn replenished when the owners and operators pay back in. The owner/operator may also be liable under State or other provisions of Federal law for damages to private property resulting from an oil spill, and aside from the question of clean up. Byron R. White: $500 doesn't go very far in cleaning up oil spills. Is there much in it? Edwin S. Kneedler: I do not know the present balance. I do know that when the Act was initially passed appropriated funds were placed into it and the authorization at the original time was $35 million. I would also point out that based on the 1973 statistics that we put in the petition for certiorari it appeared that there were 14,000 oil spills that the Government was aware of under this Act and something like 8,000 of those cases the Government was able to trace the spill to a particular source. So while the penalty in a particular case, in this case for example $250, might be small in an individual case those penalties would accumulate and make up a substantial portion of the Funds in this statutory fund. In addition to the liability to the United States for clean-up and possible liability to third parties for damages to property Section 311(b)(6), the other provision that is specifically involved here, provides that the owner or operator or the person in charge of the facility -- anyone of these -- shall be assessed a civil penalty in an amount not exceeding $5,000 whenever a prohibited discharge occurs. The Coast Guard has construed this statute to require that at least some penalty be assessed in every case but the statute itself requires that the amount of the penalty within that $5,000 range be tailored according to the gravity of the particular violation, the size of the business concerned and the effect of the penalty on the ability of the owner/operator to remain in business. The civil penalty case now before the Court resulted from an oil spill at Respondent's property near Enid, Oklahoma on March 23, 1975. At that time about 20 barrels of combination oil and mud apparently escaped from the retention pit at the drilling facility. On March 25 the sanitarian with the State Health Department was conducting a routine inspection for other purposes nearby and noticed that oil had seeped out of the retention pit, had run down a gully and into a stream by the name of Boggie Creek. Respondent does not contest in this Court that Boggie Creek is a navigable water within the meaning of the Act or that the amount of oil discharged in this case is harmful for purposes of the Act. On the same day that the State sanitarian observed the spill the State Health Department notified Respondent of the spill, Respondent notified EPA of the spill eight days later as he was required to do order Section 311(b)(5). On June 25 Respondent submitted a more complete report pursuant to an EPA request under another provision of the Clean Water Act administered by EPA. EPA then forwarded these reports to the Coast Guard which relied upon them in assessing a civil penalty against Respondent in the amount of $500. Respondent filed an administrative appeal from this assessment, contending that the use of the required reports to assess the civil penalty constituted a violation of the Fifth Amendment privilege against compelled self-incrimination but this appeal was denied. Respondent then filed an action in District Court seeking to enjoin enforcement of these provisions and enjoin collection of the civil penalty. The Government soon thereafter filed a collection action to recover the unpaid civil penalty. The District Court consolidated these two cases and denied Respondent's motion for summary judgment, again raising the Fifth Amendment issue. The court then determined that Respondent -- that the oil spill at Respondent's property had violated the Act but reduced the civil penalty that had been assessed in the amount of $500 by the Coast Guard to $250, for two reasons. One, what the court believed to be the relatively insubstantial amount of oil that had been spilled, although it was still a violation of the Act. And, secondly, taking into account what the court believed was Respondent's diligence in cleaning up the discharge. The Court of Appeals reversed the award of the civil penalty to the United States. Despite Congress' expressed designation of the penalty as civil the Court of Appeals perceived certain punitive aspects to it and therefore determined that it was criminal. The court did not enjoin enforcement of the civil penalty provision or the required notice provision of the Act but simply applied immunity providing that the required notice and information derived from that notice could not be used in assessing either the liability for or the amount of the civil penalty. William H. Rehnquist: Did the Court of Appeals make any effort to distinguish Helvering v. Mitchell, the Justice Brandeis opinion? Edwin S. Kneedler: Right. It did not -- I do not recall if it was mentioned. William H. Rehnquist: I was just looking through it and it seemed to me it did not really mention it. Edwin S. Kneedler: I frankly do not recall if it was specifically mentioned. It did mention several of the prior decisions of this Court and of course in Helvering the Court was dealing with a civil penalty of 50 percent for fraud against the United States. William H. Rehnquist: But it was also dealing with the self-reporting requirement of income tax. Edwin S. Kneedler: That is right. Well, no, I am sorry, the Helvering -- right -- I suppose that could have been indirectly implicated. But in Helvering the question was whether that was a violation of the double jeopardy clause, because the defendant in Helvering had been acquitted of criminal fraud against the United States and then the question came whether the Government was barred by double jeopardy from -- by the double jeopardy clause from recovering the penalty. William H. Rehnquist: Well, let me read you this language from Helvering v. Mitchell on page 309 of 303 U.S. "In assessing income taxes the Government relies primarily upon the disclosure by the taxpayer of the relevant facts. This disclosure requires him to make in his annual return to insure full and honest disclosure to discourage fraudulent attempts to evade the Act Congress imposes sanctions. Such sanctions may confessedly be either criminal or civil." Doesn't that strike you as somewhat resembling the scheme here? Edwin S. Kneedler: Yes, in that sense it does. I guess I was focusing on the particular constitutional right that was involved there. But to that extent it certainly does, that the liability was based on the information in the tax return that was fraudulent. And in fact I think one of the implications of the Court's decision here, although it does not precisely explain what the scope of the decision was, is that it could have a disturbing impact on the wide number of both Federal and State statutes that are now moving more and more toward the use of civil penalties as an integral part of the regulatory scheme. And of course the provision for assessment of civil penalties under the tax statutes is one of the longstanding examples of that. And it is being used more frequently in regulatory statutes, for instance the Occupational Safety and Health Act with safety provisions. John Paul Stevens: The tax statute that Mr. Justice Rehnquist referred to, of course the disclosure of information is required in order to decide the tax liability and the tax consequences. Do you know of any cases like this in which the disclosure requirement is simply for the purpose of existing enforcement of the statute? Edwin S. Kneedler: Not specifically. The case of California v. Byers comes to mind as being somewhat on point. In that case the purpose of the reporting requirement was to identity persons involved in automobile accidents and that was seen primarily in aid of adjusting private liability. It was not for instance a reporting requirement that was intended solely in order to bring an action against someone. Warren E. Burger: Did the Court of Appeals cite California v. Byers? I don't find it in their opinion. Edwin S. Kneedler: Not to my recollection. Warren E. Burger: They also said that that is primarily related to that that statute in California v. Byers is related to the civil aspects. Isn't it something more than that, isn't it related to the State's overall responsibility for safety on the highway? Edwin S. Kneedler: To be sure. Many States, for example, might count an accident, for example a certain number of points, to deprive someone of -- Warren E. Burger: The judgment in Byers is that the citizens of California rare compelled to leave their name and address if they had an automobile accident, and then that could be used against them in either civil or criminal. Edwin S. Kneedler: That is right, that is right. There were really two separate discussions of the Fifth Amendment privilege in Byers, one that it had to a certain extent this purpose of identifying persons involved in accidents for purposes of private liability. And then, secondly, the Court described the fact that the information was not in some respect -- it was not testimonial in nature. Warren E. Burger: I suppose you have no way of knowing now whether the California v. Byers was called to the attention of the Tenth Circuit. Edwin S. Kneedler: I don't know whether it was cited in our brief. Warren E. Burger: I would assume that the United States Attorney presenting it would have been aware of that case, wouldn't you? Edwin S. Kneedler: It was cited. Warren E. Burger: It was cited? Edwin S. Kneedler: Yes. As I mentioned, the Government is somewhat concerned about the potential implications of the decision, not just with respect to the self-incrimination clause but if it were to be given a broader reading as it may affect the application of other rights under the Fifth and Sixth Amendments that normally attach in criminal proceedings. And in this case the Court of Appeals approach, which disregards the Congress' clear designation of this particular penalty as civil and substitutes instead a judicially-fashioned standard of when a penalty is sufficiently punitive, that the court believes it should be regarded as criminal. We think it would embark the courts on a difficult course of line drawing in trying to distinguish which particular statutes might carry attributes that in the abstract might seem punitive even though the statute was designated by Congress as being civil. And specifically with respect to the Fifth Amendment privilege the language of the privileges provides that no person should be compelled in any criminal case to be a witness against himself and the debates on the proposal in the Bill of Rights in the House in 1789 indicate that the limitation to criminal cases was deliberately inserted in the Bill of Rights at that time. The term "criminal" of course appears in the Sixth Amendment as well in identifying those prosecutions in which Sixth Amendment rights attach and there is no reason to think that the first Congress intends to distinguish between the two. And the recommendations of the four State ratifying conventions that proposed the conclusion of a privilege similar to the privilege against self-incrimination in the Bill of Rights also were limited in their concerns to the criminal context. And while this Court has over the years repeatedly held that the privilege may be asserted in proceedings that are civil it has done so in the context where the testimony or evidence given in the civil or other proceeding would expose the person to criminal liability. The Court has not departed from the text of the amendment referring to a criminal case. John Paul Stevens: Well, was the claim made -- I suppose the Respondent here made the self-incrimination claim very early in the proceeding. Edwin S. Kneedler: Right. He made the claim before the Coast Guard. John Paul Stevens: But -- when what? When he was asked -- when he was assigned or what? Edwin S. Kneedler: Right. The procedure is that the Coast Guard assesses -- looks at all the factors and assesses what it believes to be the appropriate standard, the administrative appeal from that, at that point Respondent did argue that the required reports could not be used for purposes of assessing the civil penalty. John Paul Stevens: Well, in the tax laws if someone wants -- isn't it the rule that if you want to claim your Fifth Amendment privilege you should claim it in connection with the matter that you don't want to report? Edwin S. Kneedler: Well, in this particular case the provision requiring a report under Section 311(b)(5) contains an expressed immunity clause similar in language to other immunity provisions although in this case it is self-executing, there is no requirement. John Paul Stevens: So you automatically are -- you cannot be convicted at all. Edwin S. Kneedler: It says it shall not be used in a criminal case. And then the question becomes what is a criminal case. And of course the language "criminal case" is directly parallel to the language in the Fifth Amendment. So the assumption would be that Congress intended then to have the similar scope. Warren E. Burger: Well, in filing a tax return it is not unknown, is it, that certain expenses and deductions will be claimed, have been claimed but the detailed explanation is reserved on Fifth Amendment grounds. Edwin S. Kneedler: I think that would be an appropriate -- Warren E. Burger: Now, that of course might arouse the interest of an Internal Revenue agent somewhat but that is the way to go about it. Edwin S. Kneedler: That is right. Well, in this case there is a report form in the appendix indicating the information given by Respondent in the course of a telephone conversation with a person at EPA. And in this case he did indicate that the U.S. spill had occurred on his premises. This Court has repeatedly stated that the question of whether a given sanction of his criminal or civil is a question of statutory interpretation. In the present case Congress could not have been clear in manifesting its intent that the sanction be civil. It is designated as civil and the procedure for its collection is civil, a factor which the Court found persuasive in Helvering v. Mitchell. We must therefore assume that Congress used the term "civil" advisedly and that it affirmatively decided the attainment of a monetary penalty under the Clean Water Act should not carry with it the usual stigma that attaches to someone who is convicted of a criminal offense. Indeed the administrative conference and the drafters of the model penal code and others have suggested that civil penalties be utilized instead of criminal provisions in regulatory statutes such as this for exactly that reason, to avoid the problem of exposing persons unnecessarily to the the use of the criminal process and to avoid stigmatizing persons who are exposed to the criminal process to the fact of criminal conviction when society at large would not usually regard the conduct of being worthy or deserving of that kind of punishment. We do not believe in the present case, for example, that the oil spill on Respondent's property would ordinarily be of the type that would warrant bringing a criminal prosecution under some other statute such as the Rivers and Harbors Act and we do not understand that Respondent would suggest otherwise. The civil penalty provision in Section 311(b)(5) can be contrasted we think instructively in this regard with the -- excuse me, Section 311(b)(6) can be contrasted with the criminal sanctions in Section 311(b)(5) for failing to report an oil spill to the Government, even where the owner/operator is wholly innocent with respect to the spill in the sense of not having been negligent or wilfull. Congress evidently believed that even where the person in charge of the vessel or facility had not been negligent in causing the spill that the public interest in requiring prompt notification was sufficiently strong in order to prevent damages to third parties and prevent damage to the environment that the failure to report should carry criminal consequences. The civil nature of this, the penalty involved here is further underscored by the fact mentioned earlier that the civil penalties are paid along with the recoveries from persons responsible for spills into this statutory revolving fund, it has the effect of paying the Government's clean-up costs for those particular spills in which the cost cannot be recovered from the owner/operator who is responsible for the particular spill. The penalty can also be viewed as compensation to the Government acting parens patriae for the people of the Nation for what Congress "presumably believed was the damage to the environment in the waters that would occur even when an oil spill was cleaned up relatively promptly. It would be a transitory damage to the environment and in some cases an oil spill could not be entirely cleaned up. John Paul Stevens: Mr. Kneedler, is it correct however that even if the oil spill were entirely cleaned up by the person who reported it be nevertheless might have a penalty assessed against him? Edwin S. Kneedler: Yes, indeed -- excuse me. The Coast Guard has construed the statute to require that that a penalty be paid in all cases. But one of the factors to be taken into account is the gravity of violation. Respondent does rely on the fact that the subsequent clean-up cannot be taken into account but in this case that reliance is wholly misplaced because the District Court in fact cut the penalty in half because of what the District Court believed was the diligence of the Respondent cleaning up. And I have been informed that the Coast Guard has acquiesced in that position of the District Court now and others. And now it does take into account the administrative assessment, the clean-up. John Paul Stevens: As far as the legal issue is concerned, I understand the amount of the penalty can now be larger than at the time. Edwin S. Kneedler: Yes. One point should be clarified. The EPA has taken -- it is the EPA who enforces that new provision, although I do not know that this as yet has become final -- the EPA has expressed an opinion in earlier regulations that that is intended principally for hazardous substances, not for oil, hazardous substances, chemicals and other -- John Paul Stevens: But as a matter of statutorial or constitutional power I would suppose that if the agency thought it were extremely serious and they wanted to deter future carelessness, even though there were no harm in the particular case, they could assess a penalty of $150,000 and we would have exactly the same legal issue, wouldn't we? Edwin S. Kneedler: Yes, I think -- it is essentially the same legal issue although several of this Court's decisions, I think most recently in One Lot Emerald Cut Stones, has suggested that the penalty is so disproportionate to the conduct for which the penalty is attached that at that point it might be regarded as criminal. John Paul Stevens: Punitive. Edwin S. Kneedler: But the statutory language both in the civil penalty provision involved here and also in the new one enacted in 1978 both specifically provide that the penalty should be tailored to the gravity of the offense. So if that standard is rigidly applied, then there should not be an occasion where the penalty would end up being -- John Paul Stevens: Mr. Kneedler, do you think it would be constitutional for the Congress to pass a law requiring motorists to report every time they exceeded the 55-mile limit and to pay a civil penalty of $5 a mile for the excess and say that the report could not be used in any criminal case against them? Edwin S. Kneedler: Well, I think in terms of the self-incrimination clause there would be no constitutional question because of the specific language of the -- John Paul Stevens: Certainly there is as great an interest in preventing death on the highway, I suppose, as there is in preventing oil spills. Edwin S. Kneedler: That is right. John Paul Stevens: I should think your rationale would justify such a statute. Edwin S. Kneedler: Yes, I am trying -- I am not sure what the constitutional objection would be outside of the self-incrimination clause. I mean I don't know whether there might be some Fourth Amendment issue at some point. But it might be possible, for example, with sophisticated technology, I suppose, to have a monitor on speedometers in automobiles that would measure that, which would have the effect of recording on behalf of the individual. One other point I would like to make at this point is that the Respondent relies to a considerable extent on one of the factors mentioned in this Court's decision in Mendoza-Martinez. In that case the Court held that an expatriation provision under the Immigration Act for persons who departed the country to avoid military service was criminal and one of the factors mentioned in Mendoza-Martinez that could be looked to in discerning congressional intent is to whether a statute is criminal is whether the conduct regulated by the ostensibly regulatory or civil sanction is otherwise made criminal. We agree that this can be a relevant factor but in this case it happens to cut the other way, because this Court has said on a number of occasions the Congress -- as it has under the tax laws and others for example -- can attach both criminal and civil sanctions to the same conduct. And so where here Congress in the Refusa Act of 1899 has made the discharge of pollutants criminal and then in this particular statute designates the penalty as civil I think the inference can only be that Congress meant what it said. Warren E. Burger: Tell me again, what happens if you don't file the report at all? Edwin S. Kneedler: If you don't file the report, you are subject to criminal liabilities for non-filing. Right, yes, it is. William H. Rehnquist: Failure to file an income tax return? Edwin S. Kneedler: Right. And in Mendoza-Martinez, on the other hand, the fact that the conduct was otherwise made in criminal and in fact cut the other way because Mendoza-Martinez, the statute involved there was concerned with people who had violated the Selective Service laws were criminally liable but had left the country and were beyond the reach of criminal prosecution. And the legislative history of the statute made it unmistakably clear that what Congress intended to do was fill a gap in the criminal punishments under that statute by saying any citizen has left the country and we cannot prosecute him, then we will do the alternative of taking away his citizenship. And so while that is a factor, it is necessary to look at which way it cuts in a particular case. Warren E. Burger: Going back to Mr. Justice Stevens' hypothetical, suppose the statute provided that anyone going over 55 miles an hour had to make a report saying exactly what his speed was and his average point to point and $50 or $5 for each mile over 55; but that failure to file a report at all would be a $500 fine -- not criminal, $500 civil penalty. Do you think that would pass muster under your argument? Edwin S. Kneedler: Yes. Again, I don't think this raises self-incrimination problem, because it wouldn't be criminal. But I think the limitation as to where one would probably be a due process limitation if the sanction for failure to report at some point was so disproportionate to the offense of not reporting. I can imagine a situation for example in which a serious oil shortage, it was imperative that no one go over a certain speed and there would obviously be a strong public interest in insuring that all citizens obeyed that particular provision. Warren E. Burger: Should the civil penalty reach dimensions that would raise Fifth Amendment issues. Suppose it was $5,000 fine for not filing your report on speeding. Edwin S. Kneedler: Well, I would be reluctant to say that $5,000 would be a particular cutoff point. But again, in the case of discussing whether a case is criminal, for example, they have suggested that a penalty that is so disproportionate to the underlying offense is -- Warren E. Burger: Suppose that it provided that forfeiture of the truck would follow; forfeiture of the vehicle, total forfeiture would be the civil penalty? Edwin S. Kneedler: Well, in the Court's decision in Clara Toledo, for example, the Court upheld the forfeiture of a yacht that was based on essentially non-- Warren E. Burger: Registration error. Edwin S. Kneedler: Right. And of course in those situations there is often a provision for remission or mitigation of penalties which helps to undercut the harshness of the penalty. Thank you. Warren E. Burger: Mr. Jones. Stephen Jones: Mr. Chief Justice, and may it please the Court. I would like to very briefly respond to certain questions that were asked of Mr. Kneedler and perhaps give an answer slightly in variance with that given by him. With respect to the facts I believe that the Government left out two important considerations that the Court should bear in mind. Number one, there was no evidence in the court below that Ward or any of his employees were responsible for the spill that occurred in this case. The Act of Congress makes the penalty imposed on the basis of strict liability. Mr. Justice Stevens, for example, asked the question might the penalty be imposed. There is no "might" about it. The penalty is automatically imposed in every situation regardless of fault, regardless of clean-up, when there is an oil spill. And the penalty is imposed against the owner or the operator, not against the person responsible for the spill. William H. Rehnquist: It is a stricter standard than the law that requires one to file in income tax return? Stephen Jones: Yes. As applied in this case it is. William H. Rehnquist: Well, generally speaking. Stephen Jones: Yes, sir, under the statutory scheme. Let me explain why. Your Honor raised the question of Helvering v. Mitchell. There is a critical difference. The information supplied in Helvering v. Mitchell, which was not a self-incrimination case in any event, was essentially neutral. And that case turned on another question. But the Supreme Court earlier had decided in Sullivan v. United States that the filing of an income tax return did not violate the Fifth Amendment clause dealing with self-incrimination, because the information was essentially neutral. But Mr. Justice Holmes in his opinion pointed out that if the information called for by filing the return would incriminate the taxpayer he need not provide that information. William H. Rehnquist: But in Helvering, Justice Brandois says to insure full and honest disclosure to discourage fraudulent attempts to evade the tax Congress imposes sanctions. Now, that certainly doesn't suggest that the information is necessarily neutral. Stephen Jones: Sir, as I read Helvering and Sullivan and the other income tax cases and also Byers which I wanted to speak to, the information is essentially neutral. There is in reality no penalty or sanction imposed upon someone that files an honest income tax return. All he has to do is pay the tax. Here, though, if you are not responsible for the oil spill you still have to pay the penalty, even if you take every effort to avoid an oil spill as General Motors did in United States v. General Motors. The Coast Guard still assessed them a fine of $1,200 which the District Court cut to $1. The court inquired of counsel concerning Byers v. California and there are some critical differences in that case and this one. As I read the Court's decision in Byers there are at least. This Court in finding that the California hit and run statute, so-called hit and run statute did not violate the Fifth Amendment. It found first of all that the mere possibility of incrimination was insufficient and found also that driving a vehicle is a lawful activity and found that even if incriminating the report is not necessarily testimonial. Now, let us contrast that with here. Here, having an oil spill is an offense and that is the word used by Congress. It is an offense for which a civil penalty is imposed. Number two, the report is clearly incriminating because it is on the basis of the report that the fine is assessed. And number three, the report clearly is testimonial. Now, this Court in California -- Byron R. White: Incriminating only if you assume the answer to the issue -- Stephen Jones: Yes, sir. Byron R. White: -- it is a criminal case. Stephen Jones: Yes, sir. Which I was going to address but if I could just say the Court in California v. Byers pointed out that there are many accidents where there is no liability attached and certainly no criminal liability. Now, the heart of our case is that a proceeding to collect this penalty, even though denominated civil, is in reality a criminal case within the meaning of the Fifth Amendment. Counsel for the Government contracted the Fifth and Sixth Amendment but there is a critical difference. The Sixth Amendment speaks of criminal prosecutions. The Fifth Amendment speaks of criminal cases. And the Sixth Amendment guarantee has never been applied in an action to collect a civil penalty. But this Court and the State courts and the lower Federal courts, going back to the English system, have consistently applied the self-incrimination clause of the Fifth Amendment and the Fourth Amendment guarantees in actions to collect civil penalties. And that was the ruling of this Court in Boyd v. United States which has been reaffirmed either implicitly or -- implicitly in Lees v. United States, Hepner v. United States, Hogan v. United States and in Footnote 3 of Helvering v. Mitchell and U.S. v. U.S. Coin and Currency and in One 1958 Plymouth Sedan because the Court said in Boyd that an action to collect a civil penalty -- in that case $1,000 -- and the statute clearly said that it was non-criminal, this Court nevertheless found that the penalty was, in effect, quasi-criminal. And it required, if the Court will recall, in Boyd -- this was as I recall a statute involving an alien -- that you had to furnish certain reports and information to the Government; and if you did not furnish them, the penalty would be assessed. And the Court said, rightly so, that that was a violation of the Fifth Amendment self-incrimination clause even though it was denominated non-criminal. Now, the Government in its reply brief has taken issue with our history and I would just like to call to the Court's attention very briefly that each of the authorities cited by the Government, beginning with Dean Wigmore at Section 2256 of Volume 8, adopts our position that actions to collect civil penalties can violate the self-incrimination clause of the Fifth Amendment. The same position is taken in Greenleaf on Evidence, Taylor on Evidence and Mr. Joseph Story's Commentary on Equity Pleading. What the Government says is that this rule is not a constitutional rule, it is a rule of equity. But it overlooks the fact, as discussed in some length in Leonard Levy's classic The Origin of the Fifth Amendment, that in fact the Founding Fathers, the State constitutional conventions, the first Congress when it passed the Fifth Amendment had in mind these civil penalties which had been abused; and that the early cases make it clear that they were given the constitutional protection against the self-incrimination clause. And, as I indicated, that has been the position of this Court, this Court has consistently applied the protection of the Fourth Amendment and the self-incrimination clause of the Fifth Amendment in actions to collect fines, penalties and forfeitures. Now, in this case even if this Court were writing on a clean slate, if there had never been Boyd, if there had not been this history -- Byron R. White: Mr. Jones, the cases you are referring to, do you treat the collection process as a criminal or not? Or did it just say that you could claim the Fifth Amendment privilege because it wasn't an immunity statute? Stephen Jones: No, sir. As I understand the cases, they explicitly recognize that a civil collection procedure and proceeding was at issue. But they -- Byron R. White: You mean there are cases saying that there can be no civil fines? Stephen Jones: No, sir. Byron R. White: All supposedly civil fines are criminal? Stephen Jones: No, sir. What this Court has said, as I understand the decisions, is that if you attempt to have the person from whom you are extricating the fine, if you compel him to testify, you cannot do that to collect a penalty. Byron R. White: Well -- Stephen Jones: That was specifically the issue in Lees. Byron R. White: Yes, but that could be just because it would incriminate him in some other case. Stephen Jones: Well, no, sir. In Lees -- Byron R. White: It is not because the civil collection proceeding in criminal, is it? Stephen Jones: Yes, sir. In Lees v. United States and Boyd v. United States the Court paid no attention and did not discuss at all that Mr. Boyd and Mr. Lees' answer might incriminate them in some other proceeding. It was that they had to pay the fine, which I believe was $1,000 in those particular cases. But, as I indicated, even if the Court did not have that history before it, it is clear that this particular statutory scheme is punitive beyond any question. In the first place it is not referred to in any other way other than a penalty. And this Court has held repeatedly in U.S. v. LeFranka, U.S. v. Tex-Tow, One 1956 Plymouth Sedan and U.S. v. Futura that penalties are imposed for punishment, whether they are criminal penalties or civil penalties. Number two, we have in this case the forced reporting. If you do not report this spill you can go to jail. If you do report this spill you can be given a civil penalty of up to a quarter of a million dollars. In this particular case it was quite small $500 and then cut to $250. But the statute as presently written authorizes a civil penalty of up to a quarter of a million dollars. Number three, the exact same conduct, the exact same conduct in this case is also a crime. The Refuse Act does not require scienter, the Government does not have to show intent to violate it; it is a strict liability statute and it is also a crime. So the same conduct here is also a crime. The action that is referred to here is called an offense, Congress makes it an offense to spill oil or for that matter be an owner or operator where oil is spilled, again showing the punitive nature. And if there were any other question about it involved, we have cited on page 60 of our brief from page 3 of a Senate report that the whole purpose of passing this bill, or the original bill, the 1979 Act, was to punish oil spillers. So when we combine in a statutory network such phrases as penalty, offense, strict liability, and punishment, it is clear that what we have here is a punitive and not a remedial statute as this Court -- or at least some of the members of this Court considered in Kennedy v. Mendoza-Martinez. William H. Rehnquist: I wouldn't think, counsel, that strict liability really helped you, because it cuts out all notion of mons re I think traditionally associated with culpable intent that are also associated with crime. I would think strict liability would cut in favor of the civil provision. Stephen Jones: Well, Your Honor, you can go to jail for strict liability crimes even though there is no mons re. That is the Refuse Act. William H. Rehnquist: Well, but what we are arguing here is whether this is a crime or a civil assessed penalty. Stephen Jones: There is a unique feature about this. The Government at attempts to have it both ways on the question of intent or scienter. It is not supposed to be a factor but yet in the Coast Guard regulations it is a factor. That was a factor troublesome to the Tenth Circuit in its opinion and they treated that at some length. But in addition to the factors that I have already mentioned that I think clearly show it is punitive, what convinced the Tenth Circuit unanimously that this was a proceeding within the Fifth Amendment were the factors that the Coast Guard used. Because the Tenth Circuit said, "Look, if the factors to be considered in assessing this penalty are for non-punitive, remedial regulatory purposes, then this penalty -- or this proceeding may not be a criminal case within the meaning of the Fifth Amendment. "On the other hand, if looking at these factors we find that they are not related to the regulatory goal that the Congress has put forward in the preamble to the Act," then they clearly are punitive." And the Court went down and looked at each of these factors and pulled out from the Coast Guard regulations themselves. For example, the Coast Guard considers the gravity of a violation, the prior history, the person -- the owner/operator. It considers the effect of the fine on his business. It considers how large his business is. But at the time it expressly would not under any circumstances consider the clean-up effort of the operator or the fact that all of the oil had been removed. Now, the Tenth Circuit said that when you look at that it is clear that what Congress intended here was a punitive penalty and that it simply was attempting to have the hammer to beat over the head of the oil spiller in an attempt to clean up the water. Now, one thing that I think the Court might wish to consider is that the Tenth Circuit, in our opinion appropriately so, decision does not adversely affect the enforcement of this Act. The Circuit carved out a use immunity provision and it simply said this, that any information supplied by an owner or operator who is non-corporate cannot be used against him in assessing the penalty. William H. Rehnquist: But Congress had already carved out a quite different use immunity provision, hadn't it? Stephen Jones: A use immunity for what Congress called a criminal proceeding. William H. Rehnquist: Yes. Stephen Jones: Now, the way we feel that is significant here is that it meets the argument of the Government that if this Court would uphold the Tenth Circuit it would severely retard the enforcement of this Act. It would not retard the enforcement of this Act for at least three reasons. First of all, the Tenth Circuit's decision does not apply to any corporation, as is obvious because corporations have no Fifth Amendment protection against self-incrimination. Number two, -- Byron R. White: But it would still be a criminal proceeding, wouldn't it? Stephen Jones: Yes, sir, it would be a criminal proceeding. Byron R. White: And how about the burden of proof? How about jury trial? Stephen Jones: No, sir. This Court has -- Byron R. White: A criminal proceeding? Stephen Jones: Mr. Justice White, this Court has never held that actions to collect civil penalties, even if they are quasi-criminal, involve the right to a jury trial. In fact the Federal courts have specifically ruled otherwise. Byron R. White: I know, but how -- what is the theory of saying this is a criminal proceeding for purposes of the Fifth Amendment and not for the Sixth? Stephen Jones: If we examine the cases closely what emerges to us, that the teaching of the case is just this - that the self-incrimination clause of the Fifth Amendment has a very high priority in our scheme of ordered liberty and that we are going -- I mean the courts are going to protect that and give it a greater breadth than we would otherwise enumerate in first ten Amendments. And in fact that is exactly what Justice Brandeis said in Footnote 3 to Helvering v. Mitchell. Byron R. White: If the Government sues to collect a civil fine you can have summary judgment and -- Stephen Jones: Yes, sir. Byron R. White: And directed verdicts. Stephen Jones: Yes, sir. Byron R. White: And preponderance of the evidence. Stephen Jones: Yes, sir. Byron R. White: No juries. Stephen Jones: Yes, sir. In this particular case, incidentally, there was a jury trial simply because there was a dispute as to whether the water ever reached Boggie Creek, which is not material to the issue here. But that would be a rare instance. If I could just go back to a moment as to why the Act would not be retarded, in addition to the fact that it does not cover and by "it" I mean the Tenth Circuit's opinion does not cover corporations. If we look at the petition for the certiorari filed in this case by -- Byron R. White: The Government advanced an argument which it has not repeated in its brief on the merit and that is that -- Stephen Jones: Reason number one, they gave come interesting statistics concerning oil spills. It is obvious from reading those statistics prepared by the Coast Guard that the overwhelming majority of oil spills occur on facilities operated by corporate owners and therefore this Act would not apply to this. As I calculate it that would be approximately 90 percent of the spills. Thirdly, this would not apply if there was not an immediate notification. So if the Court upheld the position of the Tenth Circuit the Act would not be retarded in its enforcement. We have in our brief at some length discussed the Kennedy v. Mendoza-Martinez case. Quite frankly we believe that the factors used there are ambiguous and that Factors 1, 2 and 3 go either way. We say however that Factors 4, 5, 6 and 7 point toward this being a punitive statute and that was the reasoning of the Tenth Circuit in its opinion. In the final analysis we bottom our position upon this Court's ruling in Boyd and that a reading of Kennedy v. Mendoza-Martinez and the statutory history and the statutory construction clearly show that this is a punitive statute. Now, the argument may be made that this is not a criminal case in the sense that Mr. Ward was not arrested, he wasn't indicted by a grand jury and therefore, as the Government says, it is clear by stipulation -- not by stipulation, but it is clear from reading the statute that the self-incrimination clause doesn't apply here. But this Court has said in Ullman v. United States that the clause -- meaning the self-incrimination clause is not to be interpreted literally. That is found at page 438. In Counselman v. Hitchcock at page 562 this Court said it is impossible that the meaning of the constitutional provisions involving self-incrimination can only be that a person shall not be compelled to be a witness against himself in criminal prosecutions against himself. The reason for that of course is that until the post-Civil War period in Federal criminal cases a defendant could not even be a witness in a criminal case, either for himself or for the Government. And of course that was the rule in most State prosecutions at the time the Fifth Amendment was adopted. If we go down the history of the Fifth Amendment before this Court, this Court has defined the words "criminal case" which after all are the most important words in this case, to have a broader meaning than simply in a situation where an individual has been indicted by a grand jury and forced to stand trial. And of course the leading came in that respect is Boyd v. United States, although there are others. In the final analysis, Boyd says that the mischief against which the Fifth Amendment is there to protect appears in its most attractive form to begin with. And that is what we have in this case. There is a natural concern by everyone to keep the waters clean. That is our concern as shown by the fact that Mr. Ward promptly moved to clean it up. The Government says, "But this will inhibit other civil penalties." It will not inhibit any other civil penalty because there is no other civil penalty currently on the books similar to this one. But if this Court lets down the guard and allows this type of compulsory reporting to come forward, then I respectfully submit that the Fifth Amendment would be emasculated and that it will be a stunted right against self-incrimination. Warren E. Burger: Thank you, gentlemen. The case is submitted.

Warren E. Burger: We will hear arguments next in Richardson-Merrell against Koller. Mr. Walsh, I think you may proceed when you are ready now. Lawrence E. Walsh: Thank you, Mr. Chief Justice. Mr. Chief Justice, and may it please the Court: We are here on certiorari to review a judgment of the Court of Appeals for the District of Columbia Circuit. It reversed an order disqualifying two Los Angeles lawyers for misconduct. The first lawyer, Mr. Butler, was disqualified on a finding that after a pre-trial... after a series of pre-trial orders holding certain material inadmissible because of its unfair, prejudicial nature, and after the venire for the jury with which this case was going to be tried had reported to the courthouse, he released this material, this very material and nothing else, to a single correspondent for publication in Washington's leading newspaper. The District Court found that he did this with an intent to circumvent its orders and to prejudice the Defendant. Allis was disqualified on a finding that he procured a statement from a crucial witness into an investigation of fraud on the court with an intent to thwart that investigation. These findings were coupled by a third principal finding of the District Court; that the removal of these two lawyers would not leave the Plaintiffs unrepresentative or ineffectively represented. Two of the remaining six lawyers are leaders in the Bendectin litigation and thy third is Mr. Jacob Stein, a former president of the Bar Association of this District and a bar leader by any definition who lead the Washington back-up team for these Plaintiffs. One further point before I come to the question of appealability and that is that the removal of these lawyers occurred not during the trial but at a pre-trial phase where there would have been any adjustment necessary to permit the remaining counsel to absorb the full load of the case. We would like first to go to the question of appealability. At the time the appeal was taken to the Court of Appeals, Flanagan against the United States had not been decided by this Court. It was decided a year ago and it held that disqualification of counsel orders in criminal cases are not appealable prior to final judgment. There are two halves to the opinion as it was written. The first half sets out very strongly the urgency in criminal cases, but the second half measures disqualification orders against the standards of Cohen and Coopers and Lybrand and concludes that by their nature they cannot qualify with the second and third tests of the trilogy established by those two cases. Without going to the question of whether a disqualification order is conclusive assuming that it is for the purpose of this case as the Court did in Flanagan. It leaves the question is the order entirely separate from the underlying case or not and this Court held that if a showing of prejudice in addition to error is needed. It is not entirely separate because the prejudice would require and examination of the trial record. On the other hand, if an order is reversible without a showing of prejudice the third test is not met and it is effectively reviewable after judgment. So, it seemed as soon as this came down that the logic projected into civil cases as well as criminal and a special brief was filed to point that out to the Court of Appeals. It, however, disagreed with our position and attempted to distinguish this Court's holding in Flanagan and suggest a different rule for civil cases. Its first point... Incidentally, its discussion of this begins on 20A of the Appendix to the Petition and the distinction begins on 29A. Its first point was that if in a civil case as distinguished from a criminal case to reverse a judgment it would be necessary to show that the error was prejudicial and that to show prejudice after trial in a civil case would be extremely difficult and would, according to the Court, would resolve itself into competing speculations as to whether Lawyer No. 1 would have tried the case differently from Lawyer No. 2. In doing this it went back to holdings of Courts of Appeals prior to Flanagan and it in attempting to show why it would be more difficult to reach a decision as to prejudice after final judgment in a civil case rather than a criminal case. It suggested that in criminal cases there is experience with minimum standards of effective representation and that that type of... that same question had not been coming up in civil cases. It did not explain why that was so esoteric that the learning in the criminal side couldn't be adapted to the civil side. And, we respectfully suggest that it exaggerates the difficulty of reviewing for prejudice after judgment, that it would not turn on a speculative, retrospective comparison, it would turn on whether the Plaintiffs were able to get lawyers of a comparable standing with those they lost. The holdings of this Court prior to Flanagan have made clear that effectively unreviewable doesn't mean just reviewable with difficulty. It means truly unreviewable. That was a holding in Firestone and in the Coopers and Lybrand where they contention was a denial of class action treatment will make it financially impossible to go ahead with the case. The Court said, notwithstanding that, it was effectively reviewable and that the problems of financing the case would not be accepted as a substitute for meeting the Cohen trilogy. And, finally, it is very hard to show a difference between criminal and civil cases except for this one added experience that have been had in criminal cases reviewing minimum effective standards, minimum standards for effective representation. Byron R. White: Well, how do the Courts of Appeals stack up on this other than in this case? Lawrence E. Walsh: The Courts of Appeals prior to Flanagan followed the Fifth Circuit in Duncan against Merrill Lynch and all said-- Byron R. White: They said that was appealable. Lawrence E. Walsh: --They said it was appealable because of the difficulty of showing prejudice after the appeal. But, after Flanagan, the Fifth Circuit rejected its old view of Duncan and said that Flanagan had changed that and it was convinced that there was no difference between civil and criminal and it refused to follow the decision of the Court itself. Byron R. White: The Circuit just didn't lie down and say Flanagan, they thought Flanagan was right or wrong? Lawrence E. Walsh: I don't know whether they went to right or wrong but they... Judge Albert Rubin said it should be followed and said that inasmuch as this Court has looked at orders denying disqualification in criminal cases and orders granting disqualification in criminal cases and orders denying disqualification in civil cases that it would be anomalous to say that this should be a different rule for an order granting disqualification. Byron R. White: How about your old Circuit? Lawrence E. Walsh: The Second Circuit... The first case that came up they said this raises a question that may require re-evaluation of our earlier holding. The second case said we are going to stay by our holding until the Supreme Court tells us differently. There was no consideration of the merits. Byron R. White: So, the Second agrees with this case? Lawrence E. Walsh: It agrees only in the sense that it won't move until it is told. It did not itself by any rational process conclude that the Court of Appeals in Koller was right. Byron R. White: I see. Lawrence E. Walsh: And it preceeded Koller. Sandra Day O'Connor: Mr. Walsh-- Lawrence E. Walsh: Yes. Sandra Day O'Connor: --I guess you agree that it is difficult to establish or examine the question of prejudice after the fact, after judgment. Lawrence E. Walsh: With great respect, Justice O'Connor, it is a problem that comes with many kinds of error besides this. There is a certain element of speculation as to whether any error is prejudicial or not. Some may be very glaring, but it is... So, there is a problem but it is not an insurmountable problem. Sandra Day O'Connor: Well, suppose we were to agree with you that an interlocutory appeal is not proper, but then you get to the end of the line and you have this issue setting there. What about the propriety of a presumption of prejudice at that time so that the burden is really on the side that tries the disqualification in effect? Lawrence E. Walsh: That could be a feasible... certainly a rational position to reach. If it goes in that direction, and the Court below actually seems to be saying that, because of the-- Sandra Day O'Connor: I wanted to ask you that. Did the Court of Appeals in your view, even at the interlocutory stage, apply a presumption of prejudice? Lawrence E. Walsh: --What it seemed to say... What it says actually... I refer to the paragraph beginning at the bottom of the 31A. What it said was that we don't need to look at the trial to see whether error was committed here. In our judgment, the error is clear and then because of the difficulty of proving prejudice it seems to say we don't have to prove it, but then that, of course, brings in into the other arm of the dichotomy of Flanagan; that if prejudice need not be proven... Excuse me, I misspoke. If prejudice need not be proven, then, of course, it is effectively reviewable after final judgment and there is no excuse for interrupting the District Court-- Sandra Day O'Connor: That would just go to whether an interlocutory appeal is proper. Lawrence E. Walsh: --Yes, Justice O'Connor. And, one more point on that. In Coopers against Lybrand, the proposal was made that there be a factual evaluation of the burdens. And, this Court held that that would be an indiscriminate standard for appealability; that appealability couldn't turn on such fact finding. And, the Court below will get into that same box if it tries to suggest that the clarity of error is going to be a factor in determining appealability, that first you must see the error clear or do I need further help before deciding whether a case is appealable before judgment. And, the same concept, if adopted, just as in Coopers and Lybrand, would spread to other types of pre-trial orders as well as this one. If there are no further questions on appealability, I will go briefly to the merits and just say that what happened here is that notwithstanding Pullman and Swint and other cases the Court of Appeals, as it says, felt that the findings below were not sufficiently extensive or explicit and it took the record and went through and made the findings it would have found if it were trying the case de novo. William H. Rehnquist: Did it hold that any of the findings were clearly erroneous? Lawrence E. Walsh: It did not, Justice Rehnquist, it did not. It never addressed the question of was there a record support for the finding of the District Court. The critical findings as to Allis was one of intent. Did he do what he did with an intent to thwart an investigation? This turned on credibility and on his knowledge at the time he did what he did and his credibility as a witness. And, it is perfectly clear the District Court rejected him as a witness. It found his explanation for what he did, the conduct of a true investigation, was not his purpose and it had support for it because there were other witnesses. All of these were hostile witnesses to the Defendant, but there were other witnesses who testified that, indeed, they did have knowledge, that Mr. Allis' partner, Mr. Butler, called people on that day and gave them the message that Allis professes not to have had knowledge of. John Paul Stevens: Mr. Walsh, could I interrupt you for a moment? Lawrence E. Walsh: Yes. John Paul Stevens: Because in addition to the factual problem of this kind of a factual case, I was not entirely clear as to the legal standards that the district judge applied. What is it? Is it any time in an adversary proceeding and during discovery somebody tries to frustrate his opponent's efforts to get full discovery it is disqualification? Lawrence E. Walsh: Not his opponent's. I think there is a misconception in the Court of Appeals that Ms. Janowski, the witness involved, was a witness for the Defendant. She wasn't. The Defendant tried to insulate itself from her and leave her available for the Court, so it is the Court's witness whose future is being thwarted here. And, it is not a suggestion that any time a witness is impeached... It is a mistake. But, on all the circumstances the Court concluded that the only rationalization for what he did so quickly and in the form of the statement took which was contrived that he had an intent to thwart the investigation. John Paul Stevens: Is there any precedent for disqualifying a lawyer for that reason? Lawrence E. Walsh: Well, to the extent that this is obstruction of justice there are precedents and they are in a footnote in our brief. There are four or five of them. They are more dramatic types of obstruction like getting a witness to leave town and things like that. But, it is the same-- John Paul Stevens: And the remedy was disqualification of the lawyer. I can understand it as-- Lawrence E. Walsh: --Disqualification, yes. John Paul Stevens: --a disciplinary matter or something like that. Normally our disqualification cases are conflict of interest. It is a little bit of an unusual situation as far as I see. Lawrence E. Walsh: It started about 40 years ago with about a 100-year history in conflicts and a 40-year history of discreet acts of misconduct. John Paul Stevens: I see. Lawrence E. Walsh: Usually it has been used with discreet acts of misconduct whether our co-counsel and whether out-of-town lawyers where the forum only has one contact with the lawyer in question and, therefore, less of a reason for suggesting going to the Bar Association or something like that. William H. Rehnquist: Mr. Walsh, I am somewhat loathed to ask you this question, but I think it is bound to be in the back of one's mind. Is this sort of brouhaha between Mr. Allis and Ms. Janowski and some of the attorneys in your group a fairly common incident of the litigation practice nowadays? Lawrence E. Walsh: I wouldn't think that, Justice Rehnquist. William H. Rehnquist: If it is, I am glad I went on the Bench. [Laughter] Lawrence E. Walsh: --Well, I won't say it has gotten any better, but this was unusual. I don't think this had ever happened to any of us before. Harry A. Blackmun: By that you mean both sides? Lawrence E. Walsh: I don't know about the other side, but I think that they also were reacting to an unusual situation, but the question was where one side tried to preserve the witness involiate for the Court, the other one was trying to destroy the usefulness of her testimony. John Paul Stevens: One other question going to the legal rules, do you think it is clear that a different standard should apply to out-of-town counsel and a regular member of the Bar? Lawrence E. Walsh: We don't urge that. John Paul Stevens: You don't? Lawrence E. Walsh: As to the standard of misconduct we suggest it is best to keep that the same. There may be unusual situations I haven't seen, but the standard for misconduct should be the same. The sanction may very well turn on the relationship between the forum and the lawyer. A lawyer who is here for one case only is dealt with by taking him out of that case. John Paul Stevens: In terms of a remedy for misconduct, would you say that it would not be appropriate to disqualify a lawyer unless it were also appropriate to impose some kind of discipline? Lawrence E. Walsh: Yes, even in a conflict case. If the lawyer resisted, there would be some-- John Paul Stevens: And, in this case did the judge refer the matter to anybody for disciplinary purposes? Lawrence E. Walsh: --It did not. It did not. And, again, this goes, I think, to the transient relationship between the lawyer and the court and the case. Coming to Butler, the Court below did not disturb the finding as to intent. That stands. Nor did it really reach the question of misconduct. It held that even if all of these things were so, that there was not a sufficient effect upon the underlying case to justify disqualification and that that should be restricted to truly egregious conduct. Now, in holding that Mr. Butler's conduct was not truly egregious, the Court looked not to what he did but to the article as it was published and suggested that this was, indeed, a balanced article. Well, balance depends upon a definition. If you take a very strong case and a very weak case and make them look equal, I suppose you could say that is balanced. But, all of the emotional, heart-tugging part of that story was pro-plaintiff and anti-defendant. And the worst part of the story the Court of Appeals didn't even recognize which was the attribution to the Defendant of responsibility for Thalidomide which crippled thousands of children in Europe where it was sold by German and English pharmaceutical companies. Now, the Defendant is touched by Thalidomide because it had licensed it and was testing it for introduction into this country. At the time its teratogenicity was discovered was testing immediately stopped and... but there were some cases that arose from the testing program which were settled. There other cases where people with misfortunes of having children with birth defects claimed to have taken Thalidomide and those cases were tried out. Now, Mr. Butler tried one of those cases and won it and in the middle of this story is this discussion of how he won a case for a legless child against the Defendant who had sold Thalidomide. Now, it is not only a devastating reminder of a 20-year old tragedy, but it is a... Thalidomide is going to be a source of daily discussion in the trial because Thalidomide is the classic teratogen against all other claims... of which all other claims of teratogenicity are measured. So, it is not as though it is going to be a forgotten thing. And a juror who has read the story, even though he has momentarily forgotten it, this is all going to come back as this horror of Thalidomide is reiterated on an almost daily basis. For those reasons, Your Honor, we... It was really the Butler thing that impelled our petition for certiorari, that the message could go out to the profession that it is not sufficiently egrecious to do this sort of thing; that if you don't get your evidence in legitimately you can use a newspaper correspondent to do it with you. I would like to reserve the rest of my time for rebuttal if I may. Warren E. Burger: Mr. Gottesman? Michael H. Gottesman: Thank you, Chief Justice, and may it please the Court: It may be helpful at the outside to define a little more clearly the posture in which this case is here and more precisely how it got through the two lower courts. The District Court proceeded on a set of assumptions about how it could decide the disqualification issue which no one defends in this Court. The District Court proceeded on the assumption that because these lawyers had been admitted pro hac vice they could be disqualified on grounds less substantial than those that would be applicable to regularly admitted counsel. The Court expressly said that in its opinion. And, the Court said further that precisely because of that reason she was not going to go on to determine whether these lawyers had engaged in any definable act of misconduct, any violation of disciplinary rules; that it was sufficient in her view if their conduct was "impermissible in the view of the Court. " So, that was the standard by which these lawyers were judged. Was it impermissible in the view of the Court? Warren E. Burger: Do you suggest that that judge did not taken into account prevailing standards of the profession? Michael H. Gottesman: Well, Your Honor, the Court expressly said that she was not making the assessment of whether these counsel had violated the prevailing standards. At one point during the hearing, for example, she said to Mr. Allis while he was on the witness stand... this is page 166 of the Joint Appendix... I will not decide whether Mr. Allis violated any canon of conduct. So, we had sort of a standard list determination that in the view of this judge this was impermissible and that that is all it took because these lawyers were from out of town. Now, the Court of Appeals reviewed that and said that is wrong as a matter of the local rules. The local rules are quite clear that once an out-of-town counsel is admitted for the purpose of a case, that counsel is to be judged by the identical standards that are applicable to regularly admitted counsel. The Court quoted from the rules and explained that that was the applicable situation. The Court then went on to say what he understood to be required before lawyers could be disqualified in a case. It said, look, the question here is, first of all, they said, there must be a definable act of misconduct, there must be a violation of the standard of conduct under the disciplinary rules or of some rule of court or, indeed, of some implicit powers that the court has to control its own courtroom. It is understood that the courts have those and can exercise a contempt power over them. But, there must be one of those things before a court can disqualify lawyers because, after all, what is disqualification? You have lawyers and clients who have entered into a contract. In a free society, they are entitled to do so. Disqualification is vitiation of that contract to the substantial injury of both parties to that contract. It was particularly aggravated in this case because these lawyers had invested literally 6,000 hours in the preparation of this case for trial and it was due to go to trial imminently and their disqualification meant that people were going to have to start over. But, the Court said at a minimum to justify-- Sandra Day O'Connor: I thought there were something like eight lawyers representing the client. Michael H. Gottesman: --There are eight lawyers who have entered appearances in this case, Your Honor. Several of them, including Mr. Stein, entered appearances solely to represent the lawyers in the disqualification proceeding when it was undertaken. Two others-- Sandra Day O'Connor: How many lawyers were representing the client otherwise? Michael H. Gottesman: --Well, what the record clearly shows, and this is not contradicted, is that in terms of preparation of the case on the merits for trial Mr. Butler and Mr. Allis were regarded as the principal trial counsel. They had done the yeoman's work... They had done almost all the major preparation. Two other lawyers had done some work in preparation for being back-ups, assistants to Mr. Butler and Mr. Allis. But, it is not disputable that they were the two lawyers who were gearing up to try this case. The other lawyers, this number that accumulates to eight, are lawyers who were not participating actively in the present preparation of this case on the merit. In any event, the Court of Appeals said we must have a definable act of misconduct. Secondly, the Court of Appeals said not every definable act of misconduct should produce a disqualification. There are ways to punish misconduct. There are obviously sanctions that the Bar can impose and there are sanctions that the Court can impose through its contempt power. Disqualification, unlike those punitive sanctions, has the very unpleasant side effect that it deprives the client of the lawyer of his choice and can do so in a way that will be very injurious, which I want to get into at some length. So, said the Court, we agree with the Second Circuit rule in Nyquist which has now been rather generally embraced by the commentators and by several courts of appeals, that where disqualification is contemplated, its purpose is not punishment of the lawyers, punish the lawyers other ways. The function of disqualification is to assure that lawyers will not, by remaining in the case, imperil the integrity of the trial. William H. Rehnquist: How much other options does a court have when you are dealing with people admitted pro hac vice? Where do the lawyers here practice, in California? Michael H. Gottesman: California, that is right. William H. Rehnquist: That the District Court should refer the matter to the California Bar for discipline? Michael H. Gottesman: The District Court... If these people had done a wrong, and they had not, but if they done a wrong, the District Court would have had the power of contempt over them. William H. Rehnquist: If the District Court excerised the power of contempt... I have seen enough cases come up here... then the yelling that, no, they should have just disqualified them. Michael H. Gottesman: No, we wouldn't be yelling that at all. William H. Rehnquist: It is a second guessing operation. Michael H. Gottesman: Well, there is a difference, Your Honor, and this is what all the courts have said, you have to decide what is the purpose of the disqualification? Disqualification is not a form of punishment. The Petitioner's brief is emphatic about that in this Court. We are not contending that disqualification is a form of punishment. What we are saying is disqualification is a prophylactic. It is a means to assure that there will not be further conduct that imperils the trial. William H. Rehnquist: So, if it were perfectly outrageous conduct on the part of an attorney at one stage of the case, and yet he was obviously totally penitent and said I won't do it again, the District Court would be obligated not to disqualify him, even though he would have violated 15 canons at the time he committed the outrageous conduct. Michael H. Gottesman: If the District Court could not find that his continued participation in that case would imperil the integrity of the trial, that is correct, Your Honor. They could cite him for contempt, could prosecute him for contempt, could cite him to his Bar Association, whether it be this state or another. William H. Rehnquist: What is your authority for your view of disqualification? Michael H. Gottesman: It is now... It started with the Second Circuit's decision in Nyquist. It has now been followed by the D.C. Circuit, by the Ninth Circuit, and every commentator in the area. William H. Rehnquist: Was the Nyquist decision based on conflict? Michael H. Gottesman: That was what was involved in that case. William H. Rehnquist: Well, it seems to me one could take... Could quite easily distinguish between situations where there have been conflicts and where one gets a certain feeling of gamesmanship in efforts to disqualify which don't relate to court conduct at all. But, when you are dealing with conduct before the Court, I don't see Nyquist as an authority for that. Michael H. Gottesman: Well, the question of whether gamesmanship was at work here, Your Honor, is one that I want to get to because it goes to the whole appealability issue and the need for an interlocutory appeal. But, even if one were to say that they were not going to require the second element and we firmly believe the second element is correct, that disqualification is not a means of punishing unless one wants to punish the client and there are other ways to punish the lawyer. Warren E. Burger: You haven't mentioned the word "deterrence". Is it implicit in what you have said? Michael H. Gottesman: Because there are punitive sanctions that can be used against lawyers who misbehave, there are deterrents. Disqualification is punishment largely of the client, not only of the lawyer, and that is why the principle has developed that disqualification should not be used simply because there was misconduct by a lawyer, because the implications for the clients are severe. I do want to turn to that because that is, after all, the threshold question here which is appealability. But I do want to say just a minute what the Court of Appeals said about Allis and Butler and why it was not prepared to tolerate their disqualification in this case. I have indicated the District Court decision can't stand. Nobody is defending the approach by which the District Court decided this case. No one is defending it here. But, Petitioner asked the Court of Appeals as a first proposition to decide this case under the Rights Standard. They say you decide whether Allis and Butler engaged in an act of misconduct and you decide whether the District Court's result could be justified by the application of the proper principle. And, the Court of Appeals said, well, obviously we can't do that if it turns on disputed issues that the District Court didn't decide, but on this record there are no disputed issues that are necessary for us to recognize that, number one, Mr. Allis committed no act of misconduct, no conceivable act of misconduct. What did he do? His secretary came to him one day and made a statement to him that the other side was trying to extract a false statement from her with promises of money. We now know that, in fact, she did receive substantial sums from the other side after that. And, she said those statements are not true. The truth is that your client's case is genuine and she has never said anything to me to the contrary. Sandra Day O'Connor: Well, Mr. Gottesman, I assume that Mr. Allis wittingly or unwittingly was going to become a witness in the trial it sounds like. Michael H. Gottesman: Well, he could only possibly be a witness-- Sandra Day O'Connor: And certainly would have been disqualified on that ground alone. Michael H. Gottesman: --Well, the concurring opinion raised that possibility. That would depend, first of all, on whether the Petitioners were going to call Ms. Janowski at trial. When that question was asked of them, they said that in light of subsequent evidences that one might call of an impeaching nature about Ms. Janowski's character they were not at all certain they were going to call Ms. Janowski at trial. And, of course, if they were not going to call her, then Mr. Allis would not possibly be a witness. Sandra Day O'Connor: Well, in any event, it wasn't decided so he was a potential witness at trial, I guess. Michael H. Gottesman: Well, at some point the Petitioner was going to have to announce a final decision on that point. If the announcement that she was going to be a witness, then the question, Your Honor, would have to be addressed. In this case, the standard is that he must withdraw at that point if it is obvious that he should be a witness. Sandra Day O'Connor: Do you think an order of disqualification because someone is a prospective witness is immediately appealable? Michael H. Gottesman: That uniquely may not meet the second of the three factors because then the question of whether that judgment is correct, that is to say whether the lawyer truly was needed as a witness, can't be made until the trial. So, as the Sixth Circuit said, this is the one area where we can recognize that in a civil case a disqualification order might not be-- Sandra Day O'Connor: Do you think that was correct in the Sixth Circuit case? Michael H. Gottesman: --I think there is a respectable argument to be made for that position. It in no way jeopardizes our position on appealability. But, the thing I want to emphasize is that Mr. Allis did absolutely nothing wrong. The assertion that the District Court found that he was desiring to thwart an investigation is not an accurate reflection of what the District Court found. The District Court's sole finding as to Allis' intent is that he wanted to get a written, sworn statement from his secretary retracting what she had told the other side and that is correct, because, after all, she had told him what was told to the other side was false. She also told him she was about to run off to Mexico. And, he asked, are you willing to put that... what you have just told me in a sworn statement and she said yes. So, the District Court found he had the intent to take a statement from his secretary retracting what she had told the other side. Then the District Court announced what were a series of legal propositions. He had a duty not to do that. Allis has the duty to investigate whether his client is committing a fraud upon the Court. He had no such duty. The Court of Appeals convincingly demonstrates that he had no such duty. This is not a case where he knew his client was engaged in a fraud. He had overwhelming evidence supporting the good faith of his client and his own secretary was telling him things that supported it. The Court then said in its conclusion on page 77A, because he had this duty and because he took a retraction from his secretary, that can be characterized as an attempt to thwart an investigation by the Court. So, a notion that that was his state of mind and that is what the Court has found is not accurate. The Court found only that he took a statement from a witness believing it to be true which she was telling him was true. That is not a violation of anything. It is a great injustice to both him and to the client that he was disqualified in this case. Now, I want to turn to the issue of appealability because it obviously is the threshold issue in this case. William H. Rehnquist: Are you at some point going to discuss Mr. Butler's conduct? Michael H. Gottesman: I would like to, Your Honor, yes. Maybe I should do it now and do appealability at the end. I would be prepared to argue at length that a finding is not permissible that Butler had an improper motive here. He could not conceivably have thought that what he gave to Morton Mintz was going to be in the hands of the ultimate jury. The questions had already been filed by the Defendant that were going to be asked of every prospective jury, have you read about that? He knew that. He is an experienced trial lawyer. They were not going to be on the jury if they had read that article. Warren E. Burger: You said what his motive was not. Are you going to say what his motive was? Michael H. Gottesman: Well, he said what his motive was, Your Honor. He said, I have spent the two years of my life trying to get this drug off the market, this drug is dangerous in my view. I have additional information now to support that. I am getting it to the Food and Drug Administration and I think that it should be in the hands of the public. He was telling that not only to Morton Mintz. On the same day that the Mintz article appeared in the Washington Post, the record shows Butler appearing on a telecast in Los Angeles where so far as I know none of the jury... prospective jurors... in which he was again in Los Angeles advocating the-- William H. Rehnquist: Did the District Court credit his version of his motive? Michael H. Gottesman: --No, the District Court did not. What I am suggesting is the District Court's rejection of his motive based on nothing but her disbelief in an affidavit that he filed is not sustainable on whatever standard of review may be applicable here given that this is a First Amendment case. It should be noted that-- William H. Rehnquist: Why is it a First Amendment case? Michael H. Gottesman: --Because the question of whether he can be punished for having made a statement to the press about an issue of paramount public importance. Judge Borck in another recent decision which is cited in the amici's brief has noted the enormous public importance about the safety of Bendectin at that point in time. Indeed, it was only four months later that Bendectin was withdrawn voluntarily by-- William H. Rehnquist: Are you saying there is a First Amendment right after a trial court rules that important evidence in the case is not admissible to send the evidence to the newspapers? Michael H. Gottesman: --I am saying that if that evidence is relevant to a paramount public issue which far transcends this lawsuit as the safety of Bendectin does and... this is very important. I don't mean to say lawyers can just, whenever evidence is ruled inadmissible, chuck it to the newspapers, by no means, but when that evidence is relevant to issues that far transcend that lawsuit as this does and when there is no substantial and imminent danger that it is going to reach the jury in the case, then, yes, indeed, that is protected by the First Amendment. William H. Rehnquist: You would apply that to say a prosecutor who views what he thinks is the erroneous application of the exclusionary rule as an issue far transcending just the guilt of this defendant so he decides to send the person's confession, which the court has suppressed, to the newspapers? Michael H. Gottesman: Well, in the context of a highly visible trial where the whole community is reading the paper about that and in this case where a jury hasn't been sworn yet, there is a substantial risk, a substantial and imminent risk that that disclosure will prevent the selection of a jury. That is not the case here. The District Court didn't find that it was. The District Court didn't care what the impact of this was for the future. She was just mad that he had given it to the press. None of the relevant inquiries were made in this case by the District Court. The Court of Appeals made them in the first instance and said they really aren't susceptible to two determinations here. This was not going to prejudice the selection of a neutral jury in this case. William H. Rehnquist: Because the jurors would be asked if they had read this article? Michael H. Gottesman: Sure. If they had read anything. There were ten questions about-- William H. Rehnquist: Then you can say with respect to any disclosure to a newspaper of evidence which a trial court has ordered suppressed in an earlier hearing, it won't prejudice the selection of the jury because if they have read about it in the newspaper they will be excluded from the jury. That is just a self-fulfilling prophecy. Michael H. Gottesman: --No, because there are some issues of such importance that you can reasonably assume that the vast majority are going to have read and it is going to make it very hard to find a jury that hasn't seen this. That was not the case with this disclosure. Indeed, three months later there was another Bendectin trial in the district. Not a single member of the jury venire had read a single article about Bendectin and that is not suprising. I must confess-- Warren E. Burger: Does that appear in the record, Mr. Gottesman? Michael H. Gottesman: --Pardon? Warren E. Burger: Does that circumstance appear in the record? Michael H. Gottesman: Yes, it is, Your Honor. It is at pages 323 to 324 of the Joint Appendix. The voir dire questions which the company had already filed in this case which plainly showed Butler the question that were going to be asked here appear at pages 15 to 16 of the Joint Appendix. Now, let me please move to appealability in my remaining time. It is the threshold issue in this case and I think it is terribly important that we say why this case is different from Flanagan. It is different in two ways. Number one, it is different because it is a civil case and not a criminal case. This Court developed the three coinfactors in civil cases and it-- Sandra Day O'Connor: Mr. Gottesman, do you think it is possible that a defendant in a criminal case has an even stronger interest in being represented by his counsel than in a civil case? Michael H. Gottesman: --Sure. In a particular case that may well be true. And the reason that this-- Sandra Day O'Connor: But that didn't prevent the court from finding that an order of disqualification of counsel was not immediately appealable? Michael H. Gottesman: --It did not and I want to explain why that doesn't apply here. First, the coinfactors developed in civil cases and what the court said is there are always weights on the scale against an interlocutory appeal, heavy weights. But then over the years certain exceptions developed and the Court was able to identify that. When these three factors are present, they outweigh the interest against an interlocutory appeal in a civil case. Then the criminal cases came and as Flanagan succinctly demonstrates the weights against an interlocutory appeal are much, much heavier in a criminal case. So, the same factors that would tip the scale in a civil case aren't sufficient to tip it in a criminal case. You need a lot, lot more and, indeed, there have been very few instances where this Court has been able to find that that was so. The second thing that is different... and this is key I think to this appealability case... and that is that there is no effective review of the disqualification of counsel after judgment is entered. The most persuasive demonstration of that appears in the Ninth Circuit's decision in Gough versus Perkowski and since I won't have time to lay it all out I strongly urge the Court to read that before deciding. As they point out, what would the issue be on appeal? The issue would be whether the disqualified lawyer would have gotten a better result for the client than the lawyer who actually tried the case. That is not like any other prejudice finding courts make. Ordinarily, if the issue is whether a piece of evidence was improperly admitted, the court can look at the record that was actually made, it can compare it to the record as it would have been, and it can... it is not easy, but it can determine what that difference is. But, in this area, it is comparing a record that was actually made to a total unknown. What would have happened if the other lawyer tried the case? Lawyers aren't fungible. Some do much better jobs than others. How would that lawyer have tried the case? What tactical differences would have been made? It is impossible to make that assessment. What the courts of appeals have uniformly said... not a one has ever deviated from this... we are not competent to measure prejudice after a judgment when a lawyer has been disqualified. We can't do it. The Ninth Circuit considered how could we go about doing it? How could we get the other record to compare what actually happened. Well, they said we could have a post-judgment motion in the District Court in which the disqualified lawyers come forward and show how they would have tried the case. Now, proposition one, who is going to make this post-judgment motion? Not the disqualified lawyers, they can't do it. Not the lawyer who tried the case. The purpose of this is to show that it should have been done better, that it could have been done better. So now the client is off to hire a third lawyer to make this post-judgment thing. Now the lawyers come in and they say with the benefit of hindsight, to be sure, we would have tried this case in an entirely different way. We have much more effective jury arguers, we are much more articulate in the way we present it, we would have called three experts, they didn't. We would have done, this, that, and the other. The Defendant is going to come running in saying, oh, no, no, if they had done that that wouldn't have affected the outcome of this case. We are going to generate a whole second trial at an enormous cost in judicial resources just to create the record so that you have something to compare. And even then the Court said we can't compare those two things. How can we sit and say, yes, if Lawyer A had tried this case instead of Lawyer B, his more articulate jury argument would have swayed the outcome. It is unlike-- Sandra Day O'Connor: What if the Court would apply, as I think the Court of Appeals did here, a presumption of prejudice? Michael H. Gottesman: --The Court here implied no presumption, Your Honor. The Court here said a wrong was committed because a contract freely entered into between two parties was vitiated without justification and the Court said that is a wrong we can correct now. We are not presuming that there is going to be-- Sandra Day O'Connor: Well, I think I read it differently. But assuming there is a presumption of prejudice at the end, does that affect your argument? Michael H. Gottesman: --Well, if the Court said there will be an automatic reversal, it would affect-- Sandra Day O'Connor: No, just a presumption of prejudice. Michael H. Gottesman: --I guess I don't know-- Sandra Day O'Connor: --that affects the burden of proof, of course. Michael H. Gottesman: --Right. I guess I don't know, Your Honor... The reason it is hard for me to answer that is that I don't know what the implications of the presumption of prejudice will be. If the presumption will be overcome by arguments by the other side that say, look, this is a good lawyer, why should we think he did any less or any better than the first one. Then we are back in the same situation every court of appeals is talking about. We are guessing. We don't know. This is not in our competence to measure this. That is why anything short of an absolute rule that says you reverse if this happens does not protect the client against the very serious injury that a different outcome may be obtained and it will never be detectable after the fact by any instrument the courts of appeals can use to measure that. I would point out one other thing, one terrible consequence of that. If you can't get a post-judgment appeal because the courts are all saying they won't entertain it and if you can't get a pre-judgment appeal, there will never be the articulation of what standards should guide district courts in determining whether disqualification is proper or not. Every district court will be a barony unto itself applying whatever standards it wants. We saw that happening here. This District Court applied standards that everybody concedes are wrong. It could have gone on doing that for the rest of its career, whenever I see a pro hac vice lawyer I don't like I am going to disqualify him. And, there will be no means for correction, no means for articulating standards. That would fuel the very phenomenon that all the courts are talking about, the tactical abuses of motions to disqualify. There is an epidemic of this now. For people who want to delay a trial, the greatest thing in the world is to file a motion to disqualify. And, if the district courts are governed by any definable standards in ruling on those motions, everybody is going to have an incentive to do that. There is never any reason to think you will lose. How do we know, let's try. Maybe we can sell this idea to this judge. It is only through the development of an appellate articulation of what the controlling standards are that we can ever have a definition of what district courts are supposed to do and yet if this Court says there are no interlocutory-- Sandra Day O'Connor: Of course, part of that cuts against the Flanagan rationale. Michael H. Gottesman: --It cuts against Flanagan for a very important reason. In Flanagan nobody has got a motive to go out and try to disqualify lawyers. Prosecutors want to get their cases to trial. They don't want to delay it with disqualification motions. But, in civil cases we know that there is an epidemic. Every circuit is writing about this. There is an epidemic of disqualification motions, efforts to delay trials by which every party has the interest in doing so. And, we need to have standards to prevent that. Now, the other part of Flanagan that distinguishes it is that the nature of the claim made in Flanagan was different. Here the claim is the District Court has taken away our contract without justification. Sure, it is subject to being taken away if disqualification is proper, but it is not subject to be taken away otherwise. In Flanagan the claim was that the Defendant's Fifth and Sixth Amendment rights were violated. And, as this Court explained very succinctly and clearly, it was an element of that claim that there be a conviction under improper circumstances. The claim, in other words, was not that the disqualification itself was improper. By invoking the Fifth and Sixth Amendments the claim was I am not going to get a trial that is a proper trial. Because that was so, the Court was able to say in Flanagan the second criteria, that the issue decided be completely separate from the merits, is not present here since it is an element of the claim you are advancing that you ultimately be convicted in a way prejudiced you. In our case, the claim being made is different. The claim is we had a contract. In our free society we were entitled to proceed with that contract. I, the client, was entitled to have this lawyer represent me and there was a consummated wrong when the District Court vitiated that contract without cause. We don't need to know what happens at the trial. To know that if the District Court did not have grounds for disqualification there was a reversible error. Thank you. Lawrence E. Walsh: Mr. Chief Justice, and may it please the Court: Unless there are further questions, I would waive rebuttal. John Paul Stevens: I have one question. Mr. Walsh, that is prompted by Justice O'Connor's question about the whole prejudice problem. Lawrence E. Walsh: Yes. John Paul Stevens: Based on something you said in your opening argument, would you think that there would be an absence of prejudice regardless of who has the burden if your client could show in the subsequent proceedings here that there were other counsel equally well recognized in the profession as those who were disqualified who would take the work... substitute their same rate of pay and all the rest. Would that disprove prejudice? Lawrence E. Walsh: Justice Stevens, we think it would. I think prejudice can't be measured over whether one question more was asked in cross examination or not, but with Mr. Stein, who incidentally is committed for the full commitment to these Plaintiffs-- John Paul Stevens: But then does it not follow... If that is an adequate disproof of prejudice, you will never have prejudice in any of these cases because the Bar is big enough. There is always another lawyer out there. Lawrence E. Walsh: --Let me give an example that occurred to me, Mr. Justice, where I think there could be a problem. If a person from New York with not such a good case... where we have a strong, emotionally charged case like this, there would be no trouble getting the best lawyers in the country. But, supposing it was a weak case and a person came to the District from New York and didn't know the Bar and one thing or another and if the lawyer who came down is a friend to handle the case was disqualified, then I could see a problem. In that kind of a case I would think... It goes to a question raised in Mr. Justice Rehnquist's concurrence in Firestone, that a court would reconsider. There is nothing that forecloses further reconsideration here. If Mr. Stein went to the court and became a judge and others went to the Department of Justice and were not available, even though the district judge might have strong reluctance to police Mr. Butler for a 12-week trial, I think there would be a basis for reconsideration on new evidence, but that is the example I-- John Paul Stevens: It seems to me you are saying if the case is so weak that you don't care who represents the plaintiff, why, you would not worry about it. Lawrence E. Walsh: --I don't think that. John Paul Stevens: You could file a motion in that case. Lawrence E. Walsh: I don't mean to minimize the case at all. Thank you, Mr. Justice. Warren E. Burger: Gentlemen, the case is submitted.

William H. Rehnquist: We'll hear argument next in No. 02-6683, Hernan O'Ryan Castro v. the United States. Mr. Frick. Michael G. Frick: Mr. Chief Justice, and may it please the Court: In holding that Hernan O'Ryan Castro's first titled 28 U.S.C., section 2255 petition was second or successive under the Antiterrorism and Effective Death Penalty Act of 1996, the Eleventh Circuit Court of Appeals has placed itself in conflict with every other court of appeals circuit in the United States, save the Fifth, in how they view or treat the impact of a prior post-conviction motion which has been sua sponte recharacterized or treated as a 2255 petition by the district court. William H. Rehnquist: Is recharacterization pretty much of a judge-made thing? There's... there's no statute that provides for it, is there? Michael G. Frick: That is absolutely correct. It is a judge-made... it is a judge-made thing. It is something that has been... that has grown up among the courts in an attempt to save what would otherwise be generally in the case of a pro se prisoner, a facially deficient or an ineptly pleaded document, and by recharacterizing it, it's trying to take substance and putting into form so that the court can actually rule on the substance of the particular motion that was pleaded. Anthony M. Kennedy: Well, what's the difference in the two? I'm... I'm the trial judge and I receive a motion under rule 33 that's within the time limits under rule 33. Michael G. Frick: Yes, Your Honor. Anthony M. Kennedy: When do I recharacterize it? Michael G. Frick: Justice Kennedy, at the present time recharacterization in our opinion should only be done at such time as the court determines that there is absolutely no viable way that it's going to be able to take the document as pleaded under the title that it's given to the court and effectuate a remedy therefrom. Now, it is our contention that, as in the Adams and Miller cases from the Second and Third Circuits, that at the present time, under the restrictions of the AEDPA, that a recharacterization should never take place by a court unless there is concurrence on the part of the petitioner himself and he's given the-- Anthony M. Kennedy: Well, I... I understand that... that argument of yours. Michael G. Frick: --Yes, sir. Anthony M. Kennedy: But what I'm asking is what is... what factors does the judge take into account or should take into account when he or she is asked to recharacterize the motion? I... I get... I'm the trial judge. I get a rule 33 motion, which is within the time limits, and then the Government or... says, now you should recharacterize. What... what are factors that I consider when I recharacterize? You... you indicate that you should never recharacterize unless you have to for some reason? Michael G. Frick: Yes, sir, and I do not believe that it is the Government's part to ask the court to recharacterize something. Anthony M. Kennedy: Is there any authority for that? If... if I wanted to go look in... in some manual or-- Michael G. Frick: No, Your Honor. There-- Anthony M. Kennedy: --some practice book to know when I can recharacterize, when I can't? Michael G. Frick: --No, Your Honor, but the D.C. Circuit... but first of all, all of the cases that we have cited except for the Eleventh Circuit and the Fifth Circuit have addressed issues, have addressed circumstances under which recharacterization was done of certain motions that were pleaded in order to help ostensibly the individual who pled the motion. William H. Rehnquist: But here the Government and the trial court the first time around just said they would have no objection, didn't they, having treated it as a 2254? They didn't urge that it be recharacterized, the rule 33 motion. Michael G. Frick: No, they did not ask that it be recharacterized, Your Honor. What they said is that they had no objection to it being considered as also seeking relief under 2255. But my client, Mr. Castro, had presented to the court, unlike in virtually all of the other cases in the other circuits... and this is one of the points that makes this such a strong case for Mr. Castro... his rule 33 motion was absolutely correct in all respects insofar as seeking the remedy that he did. The Eleventh Circuit's initial opinion in this case, in fact, recognized the opinion that it later vacated sua sponte... actually recognized the fact that he had brought a proper rule 33 motion under... under Brady. William H. Rehnquist: And when you say a proper rule 33 motion, you don't necessarily mean one on which relief will be granted I take it. Michael G. Frick: No, Your Honor. It is, nonetheless, a motion that does not require recharacterization in order for the court to get to the merits of the issue presented. The district court-- Ruth Bader Ginsburg: It was the Government who intruded 2255 into this case. The district judge didn't suggest it. The prisoner, who never appeared before the court, certainly didn't suggest it. 2255, as I understand, was first uttered by the Government in... in its pleading to the court. Michael G. Frick: --That's absolutely correct, Justice Ginsburg, and the court... the district court's order, interestingly enough, starts out by saying we have before us Hernan O'Ryan Castro's motion for a new trial under rule 33, and then it ends in conclusion by stating for the above reasons, we deny Hernan O'Ryan Castro's rule 33 motion for new trial. It is only in the body of the opinion itself that there is reference to the Government having requested that it also be considered as requesting relief under 2255 and that they would, therefore, take that consideration. William H. Rehnquist: Well, let's get exactly straight what the Government said because I had thought the Government said it have... it would have no objection. Now, you're saying the Government requested. Those are two different things. Michael G. Frick: Your Honor, if I stated that, I'm incorrect. The Government suggested... the Government stated that it had no objection, as Your... as Your Honor has stated. It had no objection to it being so characterized. Ruth Bader Ginsburg: But no one had proposed it other than the Government. Michael G. Frick: That's correct. Not up until that point in time, there had been no suggestion whatsoever of 2255-- Ruth Bader Ginsburg: And the Government was... I take it, was intending to be helpful. They thought that 2255 was a better rubric. Why I don't know. It isn't clear even now. The... the district judge in the end I... didn't he say I'll treat it as both? Michael G. Frick: --Yes, Your Honor. He... he said that he would treat it as seeking relief under both rule 33 and 2255. Mr. Castro, in his brief in response to the Government's brief, stated that I didn't file a... a 2255 and I object to it being characterized or considered as seeking relief under 2255. But there was no argument on the point, and it was never anything that... where argument was presented other than through the briefs on that issue. Ruth Bader Ginsburg: And what... at what point did Mr. Castro get representation? Not at this stage he didn't have any lawyer. Michael G. Frick: Absolutely not, Your Honor. We... we were not appointed by the court until this matter had gone before the Eleventh Circuit Court of Appeals who vacated the opinion of the district court and remanded it because the... now we're talking about the subsequently filed 2255. The... the first titled 2255 that was filed several years later. It was not until that was on appeal that the Eleventh Circuit appointed counsel... had the district court appoint counsel. Ruth Bader Ginsburg: So throughout the original rule-- Michael G. Frick: Totally pro se. Ruth Bader Ginsburg: --And even when he... his first styled 2255, he was still pro se until that one went up on appeal. Michael G. Frick: Yes, Justice Ginsburg, that's correct. Sandra Day O'Connor: And pro se, Castro filed an appeal from the merits determination of the district court? Michael G. Frick: Yes, Justice O'Connor, that's correct. Sandra Day O'Connor: But didn't raise, as an issue, the treatment of his... the recharacterization-- Michael G. Frick: That is correct. Sandra Day O'Connor: --to also consider-- Michael G. Frick: That was not raised... that was not raised as an issue by him at that point in time. Sandra Day O'Connor: --And what are we to make of that? Michael G. Frick: Your Honor, I would suggest that we make nothing of it. The Government has suggested that this places this case under one of three things. It's law of the case, or if the Court doesn't buy law of the case, then look at either waiver or forfeiture to the extent that there may be some difference between those two particular things. Sandra Day O'Connor: At the time Mr. Castro appealed, had AEDPA been enacted? Michael G. Frick: At the time that he appealed? Sandra Day O'Connor: Mm-hum. We can find it out. Michael G. Frick: I... I'm sorry, Your Honor. Sandra Day O'Connor: But-- Michael G. Frick: We... we have two or three different appeals. Sandra Day O'Connor: --I thought, frankly, that he had appealed in March of 1996 and AEDPA was enacted in April. Michael G. Frick: Yes, Your Honor. At page 147 of the joint appendix there's a March 19th, 1996 Eleventh Circuit affirmance of the district court denial of the rule 33 motion for new trial, and in that order the court states that this is an appeal from the denial of relief in regard to a combined motion to vacate, set aside, or correct sentence, 2255, and motion for new trial. Of course, it is our contention that that statement is not actually accurate because there had never been a motion filed by anyone seeking relief under 2255. It had simply been a characterization. Antonin Scalia: Now, that... that would mean that when the district court decided to treat this as being under either or both of those provisions, it was doing him no harm, AEDPA not yet being in existence. Is that right? Michael G. Frick: I believe that that was the... yes, Your Honor. I believe that is... that is correct from the standpoint-- Antonin Scalia: It's only the subsequent enactment of AEDPA that caused the recharacterization to be harmful to him. Michael G. Frick: --Yes, Your Honor, and not only that, but not only was this a pre-AEDPA filing of the rule 33 plus recharacterization at that time, it was a denial of the... that relief, that joint relief, pre-AEDPA. David H. Souter: What do you make of the argument on the other side that although, of course, there was no AEDPA at that point, we did have a... a structure of... of rules governing abuse of the writ and second and successive petitions and that he would have... he would have run afoul of those rules, or at least there was reason to be concerned that he might run afoul of those rules, and therefore, the enactment of AEDPA really shouldn't make any difference in our analysis? Michael G. Frick: Well, Your Honor, I... the Government's brief seems to pretty much equate abuse of the writ with the restrictions placed under 2255. David H. Souter: And I'll... I'll stipulate here that they're... you know, they're not exactly identical. But the argument is your concern basically here with the unfairness of tagging him with an earlier petition, and it's unfair because of the... the consequences under AEDPA. And they're saying it would have been just as unfair or just as fair in the pre-AEDPA law. It's a fairness argument. What do... what do you say to that? Michael G. Frick: Yes, sir. I... I believe that the other circuits of this country, courts of appeals, have addressed the difference between the abuse of the writ and the impact of having filed an initial 2255 under AEDPA and having that. David H. Souter: Right. What... what do you say? What do you say? What's your answer to the Government? Michael G. Frick: I say that there is a significant difference as stated by those other circuits between the difficulty in getting a second petition filed under abuse of the writ. It... it wasn't as difficult to get a second petition filed. David H. Souter: Is... is the... is the basic difference that you have to go to the court of appeals and that's a tough standard, whereas under our prior law, you... you didn't have to go through that step? Michael G. Frick: That would certainly be one of the differences, Your Honor. But the recharacterization itself in Mr. Castro's case was not to his benefit. There... there's no contention that the Government did it to legally entrap him, but that's the circumstance that he ultimately found himself in, having had the court recharacterize it, so to speak. John Paul Stevens: Well, but isn't... isn't there another point that filing a legitimate... maybe... on the merits motion for new trial on ground A and later... and... and having it denied, then later filing a 2255 on ground B under our abuse of the writ doctrine... that would not have been an abuse of the writ, would it? Michael G. Frick: That's correct, Justice Stevens. It's also important, I believe, to... to consider that while Mr. Castro was... while Mr. Castro was pro se, that's not... that's not a critical element in connection with this case. These same pitfalls would have befallen attorneys representing him with a recharacterization problem as... as it was done at that time, although I'm not so sure that the Government would have suggested that it would not object to it being recharacterized as a 2255 if there had been counsel on the other side at that time. Ruth Bader Ginsburg: But as far as raising a question on appeal, it's more likely, if he had counsel, that the pro se prisoner gets to see a document that starts out by saying you made a rule 33 motion, and the bottom line is, as you pointed out, your motion is denied, and that 2255 comes up only in the body of the opinion. That is something that a lawyer is far more likely to spot than a pro se prisoner who sees I made a motion under rule 33, and the bottom line is this judgment is my motion is denied. Michael G. Frick: Yes, Your Honor. That's correct. Antonin Scalia: Would he have been able to appeal the trial court's treatment of it as... as under the habeas provision? Would he have been able to appeal? I mean, the Government says it's law of the case because he should have appealed it. He... he was the-- Michael G. Frick: Your Honor, I don't know what point he would have appealed. The... the district court's consideration of the motion throughout the entire motion used the analysis of... of Brady and Giglio in reaching the point that his motion for new trial should be denied. There was one brief remark about 2255 and the constitutional application in it, but it was not, in effect, necessary to the decision that the court rendered. And therefore, I do not believe that law of the case applied. Antonin Scalia: --Well, even... even if it wasn't necessary, he would have had to go to appeal saying I agree with the judgment below. I should have been denied relief. But I want you to write an opinion saying that it was wrong for the court to treat this... I mean, the normal appellate judge would say, look it, you know, you have nothing to complain about if you agree that you should have been denied relief under the other one. Michael G. Frick: Yes, Your Honor. Your Honor, the... the question presented before this Court is not quite as narrow in our view as looking specifically at the facts of this case, with it being a pre-AEDPA when most of the other circuit cases are post-AEDPA, both in the recharacterization phase and in the filing of a first titled 2255. The question that we were asked pertaining to this Court dealt with when a first post-conviction motion is recharacterized sua sponte as a 2255, is a subsequent first titled 2255 rendered second or successive under the AEDPA. The... the answer to that is no in our opinion. But the significance and the point I wanted to make there is that the Government's contention that we've got a law of the case issue... law of the case is very... I'm not sure exactly what the law of the case is going to ultimately result in other than the determination that there had been a recharacterization sua sponte as a 2255. And under that circumstance that's what we're here arguing about. William H. Rehnquist: One thing you might touch on, Mr. Frick, during the course, the Government contends we don't have jurisdiction over this petition. Perhaps you might want to discuss that-- Michael G. Frick: Yes. William H. Rehnquist: --at some point. Michael G. Frick: Thank you, Chief Justice Rehnquist. Under Stillert... excuse me... Stewart v. Martinez-Villareal and Slack v. McDaniel, this Court has already made the determination that it has jurisdiction to consider and review a circuit court of appeals' decision pertaining to whether or not a first titled 2255 is second or successive following recharacterization. Both of those cases dealt with that issue. They were different fact situations, but the bottom line was this Court took jurisdiction under those cases to consider the issue of successive or second petition under AEDPA. In addition, a... an actual look at the statute, 28 U.S.C. 2244(b)(3)(E), which is in the appendix of the Government's brief, appendix 2a, that is the statute that the Government contends shows that this Court does not have jurisdiction. What that particular section deals with is a proscription against this Court having jurisdiction when a court of appeals has granted or denied a request for authorization for a district court to consider a second or successive petition. That is a recognition on the part... the statute recognizes that there has been a first 2255 so characterized as such, so pleaded as such by the petitioner, and that he has then come before them with what he recognizes is a second motion, and he's going to the court of appeals and saying, under AEDPA there are restrictions that we have not had before, and I am required to come before you and meet certain gatekeeping requirements in order for the district court to hear my second or successive petition. There is no first 2255 for a second... for... for the first titled 2255 to be successive to or to be second to. And therefore, section 2244(b)(3)(E) is not applicable. Now, the Government's argument in that regard is that because the Eleventh Circuit looked at the appeal and said, you don't meet the gatekeeping requirements, that that determination that it did not meet the gatekeeping requirements was a further sua sponte determination and recharacterization of his appeal into a request for certificate of authorization, and that therefore, under that scenario, 2244(b)(3)(E) should serve as a bar to jurisdiction. We strongly suggest, Your Honors, that that is not the case. The AEDPA and the... changed jurisdiction. It... it limited this Court's jurisdiction to review very important habeas corpus... habeas petitions, and in so, it should be strictly construed. The Government would have a further sua sponte recharacterization in this chain and prevent this Court from having jurisdiction to even hear the matter. John Paul Stevens: As I understand your position, though, you don't even have to read strict construction. You... I think it's your view, isn't it, that subsection (E) just doesn't speak to the question whether we have jurisdiction over a decision by a court of appeals as to whether or not a particular petition is second or successive? Michael G. Frick: That is correct, Your Honor. I was simply addressing the Government's position in trying to craft a... a way under 2244(b)(3)(E) to prevent this Court from having jurisdiction of the matter. Ruth Bader Ginsburg: Mr. Frick, the other... some of the other courts of appeals have given the district court instructions about how they should deal with cases of recharacterization. Michael G. Frick: That's correct, Your Honor. Ruth Bader Ginsburg: Those tests are not identical. Of the array of instructions to district judges to deal with this situation, which do you think is the soundest approach? Michael G. Frick: Your Honor, I believe that the... the Second Circuit Adams case sets forth probably the best bright line test, that being that the petitioner... that... that when a court has a petition that it thinks would better be served as recharacterized, that they should inform the petitioner first that they believe it should be recharacterized in order for them to grant relief, that it should be recharacterized as a 2255, obtain the consent of the petitioner, and if they don't obtain the consent of the petitioner, then offer the petitioner the opportunity to withdraw the petition and file it at a later point in time, assuming that it can be refiled at some point in time, and not be... not run into problems with the statute of limitations, or at least tell the petitioner that it is going to consider this recharacterized and they've got 5 days, 10 days to add any other constitutional claims that would appropriately be brought under a 2255 before they will rule on it so that-- William H. Rehnquist: Is recharacterization done only with pro se litigants? If I were an attorney, I'm not sure I'd be terribly happy to have a lawyer... to have the judge say, well, this is the wrong kind of writ, I'm going to treat it thus. Michael G. Frick: --Chief Justice Rehnquist, there are circumstances I understand, not from personal knowledge, where recharacterization does take place in spite of the fact that there is an attorney. But the actual process and... and the recharacterizations that have taken place over the years have been for the benefit of a pro se prisoner. Your Honor, I know-- Anthony M. Kennedy: But... but you... you want us to simply adopt a rule for what happens, what warnings have to be given, what requirements have to be met, when there's recharacterization. You're not asking us to go further and say when recharacterization is appropriate. Michael G. Frick: --I think when recharacterization is appropriate, it's appropriate. Anthony M. Kennedy: You're not asking us to address the... the-- Michael G. Frick: Yes, Your Honor. I think that... that the issue of recharacterization should continue to come up. It should continue to benefit pro se prisoners in particular and prisoners in general, but it should only be done under circumstances where the particular petition that has been filed is inadequate or ineptly pleaded and cannot be considered, under which circumstance it should just then be dismissed, as the Palmer case in the D.C. Circuit has suggested. Let the petitioner be the master of his own motion or petition. If there are no further questions, I'd like to reserve the remainder of my time for rebuttal. William H. Rehnquist: --Very well, Mr. Frick. Mr. Himmelfarb, we'll hear from you. Dan Himmelfarb: Mr. Chief Justice, and may it please the Court: This Court lacks jurisdiction to review the court of appeals' decision because the court of appeals denied authorization to file a second or successive 2255 motion. John Paul Stevens: But that's only if you know that it's a second or a successive petition. Dan Himmelfarb: Justice Stevens, the interpretive question we think that's presented, as far as the jurisdictional issue goes, is whether a denial of authorization is simply a finding that the gatekeeping requirements have not been satisfied or rather whether it encompasses both that determination and the subsidiary determination that the motion is in fact second or successive. It's our position that it is a single order encompassing both. John Paul Stevens: Is... is it your view that the Court would never have jurisdiction to review a determination by a court of appeals that a petition was or was not a second or successive? Dan Himmelfarb: No. There... there are two circumstances when it can. One is the Martinez-Villareal situation, and there this Court had jurisdiction because the court of appeals found that the motion was not second or successive and so didn't grant or deny authorization. So it didn't fall within 2244(b)(3)(E). The second situation will be one where the court of appeals finds that the motion is second or successive and doesn't go on to reach-- John Paul Stevens: So our jurisdiction depends on how the court of appeals resolved the issue. Dan Himmelfarb: --That's right. It depends upon, as the statute makes clear, whether there was a grant or denial of authorization. Anthony M. Kennedy: I don't understand your second instance. Dan Himmelfarb: The second instance... let me back up to try to answer that as clearly as I can. The ordinary case where a court of appeals is able to address the question whether the district court properly found that a motion was second or successive is a case where a motion for authorization to file the motion is filed in a court of appeals. That's because in many circuits, once a district court finds that a motion is second or successive, it's obligated to transfer the case to the court of appeals so it can make the gatekeeping determination. And even in cases where a district court is permitted to dismiss and does rather than transfer, and once it's found that the motion is second or successive, it's going to be a rare case where the defendant is able to take an appeal from the dismissal because under this Court's decision in Slack v. McDaniel, he'll only be able to get a certificate of appealability if he makes two showings: first, that the procedural ruling that it was second or successive is subject to debate among reasonable jurists; and in addition to that, that there was some underlying constitutional claim that has arguable merit. So in a rare circumstance, when an appeal can be taken on the issue of whether the motion is second or successive, and in the rare circumstance where the court of appeals, after affirming that finding, does not go on to reach the gatekeeping issue, as courts of appeals often do just to bring the case to a close, that will be the rare case where there has been a court of appeals' finding that the motion is second or successive, but yet no grant or denial such that 2244(b)(3)(E) does not deprive this Court of jurisdiction. That is not this case. Stephen G. Breyer: So in any case, your view is no matter how absurd, if a... the court of appeals says a 60(b) motion is second or successive, if they say a complaint in a 1983 action is a second or successive habeas petition, no matter how absurd, once the court of appeals says this is a second or successive application, nobody has any right to appeal here, even though that isn't what the statute says. Dan Himmelfarb: So long as there is a grant or denial of authorization, the court of appeals' decision cannot be second-guessed. Stephen G. Breyer: Now, why would we... why would we interpret a statute that doesn't say that to... what it says is, it says that they shall not file a second or successive application, in other words, if it is a second or successive application. It doesn't say if it isn't. It doesn't tell us what to do if it isn't. So why would we adopt this interpretation that you say where the statute doesn't say it, which would perhaps deprive people of all kinds of right to petition the Supreme Court in cases where they might be right? Dan Himmelfarb: The interpretive question is whether a denial of authorization under 2244(b)(3)(E) is simply a finding that the gatekeeping requirements haven't been satisfied or whether it's both that and the subsidiary finding that the motion is second or successive. Nobody would take the position I think that if the court of appeals finds the gatekeeping requirements not satisfied and therefore denies authorization, and yet manifestly errs in so finding, this Court would, nevertheless, have jurisdiction to review it. There's no manifest error exception to 2244(b)(3)(E). Anthony M. Kennedy: Well, but that's... you... you call it a subsidiary question, whether or not it's second or successive. You want to reach the gatekeeping question first. That's not the way the statute reads. Dan Himmelfarb: Well, we think it is. Anthony M. Kennedy: And why isn't it... why isn't it a predicate? You read the statute. So it says the denial or grant of an authorization by the court of appeals to file what the court of appeals finds is a second or successive petition, but that's not what the statute says. Dan Himmelfarb: We think the statute does say that, Justice Kennedy, for two reasons. The first is that 2244(b)(3)(E) speaks at... speaks of a denial of authorization. If Congress had intended that to mean only a finding that the gatekeeping requirements had... had not been satisfied, it could have used narrower language, as indeed it did in 2244(b)(3)(C) which refers specifically to the gatekeeping requirements. We think that's the first textual indication that our position is correct. The second textual indication is that in 2244(b)(3)(A) and (b)(3)(B), Congress speaks of an order authorizing the district court to consider the application. We think it's reasonable to view an order granting or denying an authorization to be synonymous with 2244(b)(3)(E)'s reference to a grant or denial of authorization. Anthony M. Kennedy: Well, at the very least, if the statute is ambiguous, it seems to me you have to answer Justice Breyer's concern that an erroneous determination here can foreclose the petitioner from exercising some very important rights. Dan Himmelfarb: Our view is that the statute is not ambiguous. After applying all the relevant tools of statutory construction, the best reading of it is that Congress intended to include the subsidiary determination when it said that this Court may not review a denial of authorization. Stephen G. Breyer: Sometimes there might be a constitutional question. I mean, where for example an opinion appealed to this Court might be required as a matter of due process and what the lower court does, the court of appeals... it... it erroneously characterizes that effort to come to the... that effort to appeal, which the Constitution would protect. It erroneously characterizes it as a second or successive petition, and in your view Congress would have just said, even however erroneous it is, it can't come here. What do we do about the constitutional requirement? Dan Himmelfarb: Well, Justice Breyer, you could imagine a case where there is a very serious constitutional claim raised, but there's absolutely no dispute that it's being raised in a second or successive motion, and the defendant can't satisfy at the substantive gatekeeping requirements. The court of appeals says it's second or successive. You don't satisfy the gatekeeping requirements. We deny authorization. I don't think anyone would take the view that under 2244(b)(3)(E) that defendant would, nevertheless, be able to seek certiorari from this Court. So the whole point of 2244(b)(3)(E) is to give the court of appeals the final say. Stephen G. Breyer: And one final thing. You realize the language, of course, says that you cannot ask for cert from the denial of an authorization by a court of appeals to file a second or successive application. And your opponents are saying we're not appealing the denial of the request to file a second or successive application. We are appealing the determination that this is a second or successive application, a matter that the statute is silent about. Dan Himmelfarb: What my opponent is appealing is the court of appeals' decision, which is a single order, which does two things. It affirms the district court's finding that the motion was second or successive, and then goes on repeatedly to say that under AEDPA's gatekeeping requirements, he may not file it. The court of appeals denied authorization to file the motion under 2244(b)(3)(E). This Court lacks jurisdiction. John Paul Stevens: But what do you say to his point that he didn't even try to file a... try to seek an authorization to file a second or successive because he never thought it was a second or successive? He did not seek authorization to file such a motion. Dan Himmelfarb: That's true, Justice Stevens. John Paul Stevens: So how can you have denied such an authorization? Dan Himmelfarb: Well, it's... as... as I've said, the ordinary way that a defendant is able to challenge a district court's determination that his motion is second or successive in the court of appeals is not via appeal because ordinarily either the case has been transferred or he can't get a certificate of appealability. So he does it in the context of an authorization motion. And in that case, the court of appeals may find-- John Paul Stevens: But, of course, he didn't file an authorization motion in this case. Dan Himmelfarb: --That's true. That brings me to my second point. In many cases within the category of the rare case where a defendant is able to take an appeal from a dismissal of a motion as second or successive, after the court of appeals affirms the finding that the motion is second or successive, it will often go on to treat the appeal as an implied request for authorization to file the motion because otherwise you've got a lingering question of whether this motion found to be second or successive can or cannot be filed, and it will reach that question just to bring the matter to a close. It's our position, of course, that if the Court does have jurisdiction, the court of appeals' decision should be affirmed. The district court treated petitioner's first post-conviction motion as one that sought relief under two different provisions of Federal law, rule 33-- Ruth Bader Ginsburg: Why didn't the U.S. attorney who said, Your Honor, I don't object... this is a rule 33 motion, but introduced 2255. Why didn't the assistant U.S. attorney advise the pro se litigant of the consequences of that recharacterization? If the U.S. attorney is going to take a pleading that a prisoner puts in and says this is my rule 33 motion and for whatever benign purpose, the assistant U.S. attorney thinks it would be in the interest of justice to treat it as a 2255, didn't someone have an obligation to alert the prisoner of the consequences of that? Dan Himmelfarb: --Justice Ginsburg, we do not defend what was done in the district court in connection with the first post... post-conviction motion. We do not take the position-- Sandra Day O'Connor: Well, wasn't that all... didn't that occur before AEDPA had been passed? Dan Himmelfarb: --Yes, it did, Justice O'Connor. Sandra Day O'Connor: Were there the same consequences then as there were post-AEDPA? Dan Himmelfarb: In... in some respects they were the same; in some respects they were different. We think, for relevant purposes, they were the same. This Court has characterized the abuse of the writ doctrine, which of course predated AEDPA, as a modified res judicata rule. A slightly less modified res judicata rule is codified in AEDPA. But at least since McCleskey v. Zant, which is a 1991 decision, a prisoner was presumptively entitled to file only one 2255 motion. The showing he would have to make to be able to file a second one was slightly different and slightly easier to make than it is post-- Sandra Day O'Connor: Well, he... he never... he did not in the district court file such a motion. He filed this rule 33(b) thing, that the Government then volunteered it wouldn't mind if the court treated as a 2255 and the district court treated it as such. It was not Castro's urging. Dan Himmelfarb: --That's true, Justice O'Connor, and-- Sandra Day O'Connor: And there was no enactment at that time of AEDPA. Dan Himmelfarb: --That... that is true as well. We do not take the position that the motion was properly characterized as a 2255 motion. We take two positions. One is that the Court may not reach that question because it lacks jurisdiction, and second, that if the Court does have jurisdiction, it should not reach that question because there was a forfeiture. The characterization could have been appealed, but wasn't. Sandra Day O'Connor: Well, this... this business of having a court recharacterize a motion as a 2255 motion was a doctrine that seems to have been developed before AEDPA was enacted, and some circuits since the enactment of AEDPA have decided that if they're going... if the district court is going to do that, that some notice should be given, certainly to a pro se petitioner, about the consequences of that recharacterization. Now, should we propose such a rule or adopt such a rule in our supervisory capacity? Dan Himmelfarb: Justice O'Connor, we have no objection in principle to requiring that... to... to a rule requiring that a district court provide a defendant with notice before characterizing a post-conviction motion as a 2255 motion. Our position is that-- Sandra Day O'Connor: If we were to do it, which... which version would be the best? Dan Himmelfarb: --Well, I'll answer that question. Before I do, I just want to make clear that our position is that this is not an appropriate case to do that because our view is that any objection to notice, either a lack of notice or an inadequate... inadequacy of notice has to be made in connection with a motion that's characterized. And once you get to a subsequent stage of the litigation, it's too late for that to happen. Ruth Bader Ginsburg: Mr. Himmelfarb, the... the reality is we have a pro se litigant who loses in the district court. He gets a piece of paper that says, your motion under rule 33 is now being disposed of, and then the bottom line says, your motion is denied. Do you really think that a pro se litigant forfeits his rights to raise what may be a very important substantive question on habeas because he didn't know to look to the body of the opinion that said something about 2255 and that that's a forfeiture? I mean, even a lawyer might have missed it when the thing starts out, this is a rule 33 motion, motion denied. That's what you're urging, that that kind of forfeiture be visited on a pro se prisoner who was uncounseled and never appeared before any court to be told anything. That strikes me as the Government not turning square corners. Dan Himmelfarb: Justice Ginsburg, we don't think that's the case at all. There is, of course, no right to counsel in connection with post-conviction litigation and the vast majority of-- Ruth Bader Ginsburg: The right to know the consequences of what you're doing. You can... a forfeiture is usually knowing. Here, this litigant had no reason to know about anything other than he was appealing from the denial of his rule 33 motion. Dan Himmelfarb: --The... the defendant in this case, petitioner, did litigate the question of characterization. When the Government in its opposition to his rule 33 motion recommended that it be treated as both a rule 33 motion and a 2255 motion, in his reply he objected. He took the position that it should not be treated as a 2255 motion and should be treated only as a rule 33 motion. So he was aware of... of what was being done and he felt that it was a significant enough decision that it should be litigated, and he objected. Our position is that he should have continued to object. AEDPA imposes all types of restrictions on post-conviction litigation. Ruth Bader Ginsburg: Yes, but my question to you is, did he have any reason to know? You say he put in his objection, yes. Then he gets a document that only in the body refers to 2255. Why couldn't he reasonably see that piece of paper as saying, you filed a rule 33 motion, your motion is denied? I mean, you are loading a lot onto a pro se litigant who has never appeared before any court. Dan Himmelfarb: We don't think that the fact that he is pro se should have any part in the analysis because that would create all sorts of difficulties in other AEDPA cases where you have difficult questions, particularly difficult, perhaps byzantine, procedural rules that a petitioner is obligated to follow. Ruth Bader Ginsburg: Well, usually courts do their best when they deal with pro se litigants to have them understand what's going on. I mean, we have all kinds of procedures in our criminal justice system just to assure that people will understand what the rules are and what the pitfalls are. Dan Himmelfarb: That's true, Justice Ginsburg. AEDPA is not one of those statutes. Once a... a defendant who files a self-- Ruth Bader Ginsburg: Yes, but you're not relying on AEDPA on this branch of the case. We're back before the days of AEDPA. You're saying because he didn't in his appeal from the denial of the rule 33 motion say, and P.S., court of appeals, there was a mischaracterization... all of that happened before AEDPA, and that's what you're holding him to. Dan Himmelfarb: --That's true, Justice Ginsburg, but even before AEDPA, the rules governing post-conviction litigation could be quite difficult to navigate, and even before AEDPA, most post-conviction litigation was carried out pro se. There are two different places in... in the district court-- Ruth Bader Ginsburg: But you just... you just agreed. You said you had no reservation about what these other courts have said must go on in the district courts. You just don't think that this is a proper case because there's no jurisdiction. But you... you are recognizing that courts, wanting to do justice, do and should inform litigants of the consequences. Dan Himmelfarb: --Justice Ginsburg, I don't want to leave the Court with that impression. I think I started to answer another Justice's question and in... in answering it, I said that in principle we have no objection to a rule requiring notice before recharacterization. Ruth Bader Ginsburg: In principle, you have no objection. What about in practice? Dan Himmelfarb: In practice as well. It's the nature of the notice that I wanted to say a little bit more about. Some of the decisions on which petitioner relies have... have language in them that not only... suggesting that not only must the defendant be notified that the district court plans to treat the motion as a 2255 motion, but also that he be warned of its consequences. We have no objection insofar as there's a requirement that he be notified of how it would be treated. We don't think there should be warnings about the consequences. Once a defendant is notified that the motion is going to be treated as a 2255 motion, he stands in no different position from somebody who's filed a self-styled 2255 motion, and the law has never required that that-- Ruth Bader Ginsburg: Is... is there one of the circuits that has taken the position that you, in principle and in practice, would say is a sound one? Dan Himmelfarb: --I think if... if we had to choose, we would prefer the Third Circuit's rule under which essentially there are three options when a post-conviction motion, not styled a 2255 motion, is filed. The defendant has the option of having it ruled upon as filed. He can be given notice that it's going to be recharacterized, and it will be recharacterized, or he can withdraw it so that he will not be prevented from filing a second-- Stephen G. Breyer: See, do you think on that... that... you're now answering Justice O'Connor's question which is just what I was interested in. On page 42 of your brief, you basically say that on the substantive rule here, you agree with the other side. I mean, pretty much. And that's what all the circuits have done. And then you impose a couple of procedural obstacles. Well, assume you don't win your procedural obstacles. All right. Suppose I find and the Court finds that this is appealable, and suppose this law of the case thing is... you say... why shouldn't he have the advantage of the rule, this particular person, the rule that we're about to announce? Now, at that point, I want to know what rule are we about to announce under what power. And here I'd like your opinion on two approaches which are different. One is we announce a rule on our supervisory authority, as most of the courts have done, and then we have two difficulties. One, we're in an area we know not what. You know, we're not involved in recharacterization as a daily basis. And moreover, we're not sure what rule to pick or what exact formulation, which will make a huge difference. Now, the other approach is the First Circuit's approach, which is not the reason it commends itself to me, but I just put it out there. And that is to say we interpret the words, second or successive petition, in AEDPA not to include this. You see, what they were talking about in Congress was not this. They didn't think a second or successive petition was second or successive where the first one took place under these no-warning circumstances before AEDPA was even enacted. Now, I think they come to exactly the same place, but that second approach, which they followed, doesn't get us into the business of writing rules in some kind of supervisory capacity in the dark. Now... but I want the SG's view, i.e., your view, on the comparative merits of those two ways of getting to the same place. And I'm really uncertain. I... I'd be very interested in what you think. Dan Himmelfarb: --Our view is that the First Circuit's view, which does not require notice but simply says that if there is no notice, the second motion is deemed to be a first motion, should not be adopted because we think it's inconsistent with the basic principle of post-conviction litigation, which we're urging this Court to adopt in this case, that you have to file your challenges to rulings made against you at the earliest possible opportunity. The First Circuit's rule, in effect, gives the defendant a right to file a later appeal. Stephen G. Breyer: Yes, but I think you're missing... say... say the same content. Let's have equivalent content to the rule. Is it better for us to... to say we're reading AEDPA or is it better for us to say we are... which is open to the... this kind of reading. We have to decide the scope of those words in the... in the block of AEDPA. Or is it better for us to try to write a rule? That... that's what I'm interested in. I can work out the rest of the content, and actually the First Circuit approach needn't have a content. I mean, it can really have quite a minimal content, but... but that's what I'm interested in. Dan Himmelfarb: We don't-- Stephen G. Breyer: Am I being clear to you? Dan Himmelfarb: --Yes. We don't AEDPA can reasonably be read to say that a 2255 motion is one that is characterized as not filed as one, but is characterized one after notice, and that if there's no notice, it's not a 2255 motion. Our position on notice is that it's essentially an adjunct of the prior decision to recharacterize. And I want to be clear. Recharacterization, particularly in a post-AEDPA world, does not benefit only the defendant, a defendant who might be able... might not be able to get his claim ruled upon if it's not recharacterized. Stephen G. Breyer: I'm sure that's right, but you... you think we should go into the rule-writing business, say, in our supervisory capacity. These... these rules... this kind... this is the consequence that attaches to recharacterization. A recharacterization is not a recharacterization that fits within AEDPA unless he gets notice, et cetera, et cetera. That's what you think we ought to do. Dan Himmelfarb: No. Our position-- Stephen G. Breyer: If we... I know you don't really, but I mean, if we get to that point and we've... we reject your other two. Dan Himmelfarb: --To the extent that the Court wishes to impose a notice requirement, our view is that it should go essentially like this. It is important to recharacterize a post-conviction motion not styled a 2255 motion if it seeks relief available only under 2255. It's important because it can help the defendant. It's also important because if it's not recharacterized, you run the risk that Congress' clear purpose to prohibit second or successive post-conviction motions could be evaded. We... that... that is essentially a judge-made rule, recharacterization. We think, as a matter of fairness and also as a matter of reducing potential litigation, it is appropriate, once you've got the judge-made rule that says you should recharacterize, to go further and say, before you do, notice has to be given. William H. Rehnquist: Wouldn't it... wouldn't it be much simpler just to say if a district court recharacterizes, it must do this without going into when or why you should recharacterize? Dan Himmelfarb: It probably... I think it would, Mr. Chief Justice. Our only point is that if there's going to be a recharacterization and there's going to be notice, the only notice should be I plan to recharacterize. We don't think that the district court should give any kinds of warnings about the consequences of recharacterization for the reasons I gave Justice Ginsburg. Ruth Bader Ginsburg: But didn't the... doesn't that... isn't that included in the Third Circuit formulation? Dan Himmelfarb: I think it may well be. I think most of the courts of appeals take the view that you should not only give notice of the intent to recharacterize, you should also give some sort of warnings about the consequences of the-- Antonin Scalia: Why do you want-- Ruth Bader Ginsburg: --You should give an opportunity to... to say I'll withdraw my petition or I'll amend my petition to say everything that I could say under the heading of 2255. Dan Himmelfarb: --Our view is that giving notice of an intent to recharacterize puts the defendant in the same position as one who filed a self-styled 2255, and under the law of post-conviction litigation, such a defendant is held responsible for the consequences of filing that motion. Ruth Bader Ginsburg: That's not the position that any of the circuits have taken. Dan Himmelfarb: I think that... I think that's probably right. I think they... to the extent they require notice, within that notice, they think there should be some warning about the consequences of characterization. We think that that can't be reconciled with the fact that there's a detailed procedural scheme governing post-conviction motions and Congress said nothing about warnings as it did, for example, in the context-- John Paul Stevens: Isn't there a difference between a case in which a litigant makes up his mind to file a 2255... presumably he should have found out what's the consequence of that... and the situation in which he files something else and the judge says, I'm going to change it? How does he know what the consequences are if he hasn't had a chance to think it through? Dan Himmelfarb: --Justice Stevens, the way we envision the regime working is that the motion is filed and the district court issues an order which it serves on parties, giving notice that it intends to recharacterize and some amount of time will elapse before the defendant is obligated to come back to the court and tell the court whether it wishes for the court to go forward with recharacterization or allow him to withdraw. So within that period of-- John Paul Stevens: But you would say the recharacterization could not take place until after there was that time... notice and a time to accept or object to it. Dan Himmelfarb: --That's right. I think that's reasonably encompassed-- John Paul Stevens: Which, of course, didn't happen here. Dan Himmelfarb: --That's true. No notice was given here. David H. Souter: The... the point of implausibility I... I have with your argument is that when the district... your argument to the effect that no notice of consequence needs to be given, merely a notice that recharacterization will take place. The... the point is that when a point does that, the court is understood to be trying to help out the defendant. Whether the court puts it in precisely those words or not, that's... that's the object. The... the court, in effect, is saying, look, I'm going to help you here because you don't know how to plead this stuff, and... and I'm going to recharacterize this as under 2255. It seems very odd for the court, in effect, to be in the position of saying, I'm going to help you out by recharacterizing and at the same time keep its mouth shut about the fact that when it does recharacterize, the consequence is going to be that that fellow is going to be out on his ear if he ever wants to walk in with another claim that could have been made under 2255. It seems to me that if courts are going to help, they've got to help in a... in a way that does not mislead the defendant, and your argument says they can help, as it were, in a way that does mislead him. Dan Himmelfarb: Justice Souter, the... the purpose of helping defendants is not the only reason for recharacterization. It also serves the interest of vindicating Congress' purpose in enacting the bar on second or successive motions in AEDPA. It vindicates... this Court made that clear-- William H. Rehnquist: Thank you, Mr. Himmelfarb. Mr. Frick, you have 4 minutes remaining. Michael G. Frick: Your Honor, if there are no further questions, we would waive rebuttal. William H. Rehnquist: The case is submitted. Thank you. Dan Himmelfarb: --Thank you, Your Honor. Speaker: The honorable court is now adjourned until Monday next at 10 o'clock.

Warren E. Burger: -- in number 71, Abate against Mundt. Mr. Barone, you may proceed whenever you’re ready. Frank P. Barone: Mr. Chief Justice and may it please the Court. Rockland County is located in the New York City Metropolitan area approximately 30 miles from New York City. Until a decade ago, it was a very small suburban community that is until the development of the New York State through it where upon it experienced rapid if not phenomenal growth. It consists of five towns and has been traditionally governed by five men board of supervisors, each supervisor being elected by one of the towns comprising the copy without regard to population. In 1964, this Court rendered a historic decision in the case of Reynolds against Sims. And in 1965, a resident of Rockland County commenced an action in the New York State Supreme Court to compel the Rockland County Board of Supervisors to reapportion themselves in a manner more consistent with that decision. The New York State Supreme Court referred that matter to the United States District Court for the Southern District of New York. And as a result, in 1966, the board of supervisors of the County of Rockland were directed to reapportion the County of Rockland in accordance with the mandates of this Court and the Fourteenth Amendment of the United States Constitution. The District Court further directed that a plan of reapportionment be placed upon the ballot for the general election of November 1966 for referendum. This plan was rejected as were two subsequent plans. In 1968, a taxpayer’s action was commenced by Samuel J. Abate, one of the petitioners herein, to have the County of Rockland reapportion itself in accordance with the constitutional mandates of this Honorable Court. After several motions and hearings, the respondents herein were directed to serve an answer. The respondent simultaneously moved in the New York State Supreme Court for summary judgment requesting that the court direct implementation of a local law providing for weighted voting without referendum. The plan for weighted voting was rejected by the court and the respondents herein were directed to present to the court a proposed plan of reapportionment with all deliberate speed. The board of supervisors had previous this point appointed a sub-committee of the charter commission and the charter commission -- the sub-committee of the charter commission recommended to the board a single-member district plan which was rejected by the board. The board subsequently had recommended to it a multi-member district plan by the sub-committee of the charter commission and that multi-member district plan was presented to the court. The petitioners herein objected to the proposed multi-member district on several grounds and further sought to submit for the court’s approval. A single-member district plan which was considered to be more in keeping with the decisions of this Honorable Court, such presentation was not committed by the New York State Supreme Court and the court approved the multi-member district plan submitted by the board of supervisors to respondents herein. Appeals were taken to the Appellate Division in the Second Department in the State of New York and the decision of the lower court was affirmed with the dissent by the late Justice Beldock. A subsequent appeal was taken to the New York States Court of Appeals where again the lower courts decision was affirmed with the dissent by Chief Judge Fuld. Subsequently, permission for certiorari was granted by this Honorable Court. There are there petitioners in this proceeding and by special permission of this Court, all three have been granted permission to appear today and orally argue this course. I should like to tell the Court that there will be no repetition of argument by counsel in order to save the time of this Court. We sincerely believe that this is the only fashion in which this matter could be properly laid before this Court. I have been chosen to make the opening statement and so I give you some of the history of this matter and will also outline for you some of the arguments that counsel will make. Counsel will argue that the multi-member district plan does not meet the requirements of equal representation of the Fourteenth Amendment of the Constitution of United States as such requirements have been mandated by this Court. Counsel will show that the respondents have failed to make the good-faith effort which is required that a multi-member district plan is unconstitutional if its district lines are static but its population is subject to change. That a single-member district plan does not meet the requirements of the one man, one vote doctrine. And that the standards of equal representation as mandated by this Court apply equally to all levels of government, and that multi-member districts in the County of Rockland cannot possibly meet the standards. According to -- Potter Stewart: And that is according to your theory, I think I understand it? Frank P. Barone: Yes. Potter Stewart: It’s absolutely impossible for any multi-member district plan to meet what you submit are the constitutional requirements. Is that correct? Frank P. Barone: Yes, Mr. Justice. Our opposition is that every decision of this Court has been consistent. Every decision of this Court in spite of the Reynolds decision which indicated that certain de minimis situations were unavoidable on certain situations that regardless of that, the requirement is that there must be an absolute de minimis and if one plan can achieve, if you will, a more minimal population variation, that is the plan which must be accepted. Potter Stewart: In other words the, I’m looking now at page 4 of the brief of petitioners June Molof and others which as I understand it sets out the present plan and indicates the population of each one of the district. And in so far, that must you begin cutting representative in half or something, that’s the best that can be done with the multi-member plan, isn’t it? Frank P. Barone: That is correct sir. Potter Stewart: And you say that’s insufficient? Frank P. Barone: Yes. We say that a more minimal population variance or disparity can be achieved by use of the single-member district plan. Potter Stewart: Right. Speaker: You’re not taking one of the member district judge such that? Frank P. Barone: No, sir. Multi-member districts, floterial districts, single-member districts have all been approved as being constitutionally proper. It is simply a matter of meeting the requirements of the de minimis rule set forth in Reynolds which must be adhered to and the plan which bested here is to that must be the plan that is adopted in order to meet the requirements of the one man, one vote doctrine. Warren E. Burger: In -- while you’re interrupted here now, Mr. Barone. Is my calculation correct that the difference per capita population per legislature -- legislator is from the maximum to the minimum only 598 and around figure 600 variation? It is the lowest being 11,577 per -- Frank P. Barone: Yes. Warren E. Burger: legislator and the highest being 12,175? Frank P. Barone: No, the highest -- Warren E. Burger: That’s the highest? Frank P. Barone: No, the highest would be 13,000 Your Honor -- Warren E. Burger: 13,000 in Orangetown? Frank P. Barone: -- in Orangetown. Warren E. Burger: So that it’s a little over 600 variations from the minimum. Frank P. Barone: Yes. Warren E. Burger: Well, how fast -- how rapid is the population change in every given district? Frank P. Barone: Sir, the 1969 census -- special census figures which were used for this calculation had since been superseded by the 1970 census figures which I do not have. I believe that counsel for respondents has these figures and will undoubtedly bring them before the Court. However, the population variance, the change in population, I respectfully submit will in fact not make any difference in the argument that petitioners make since the population variance can bring the difference to a point higher or lower as the population increases. So that we must deal I believe in this matter and counsel will point this out. We must deal with the two basic requirements that I believe this Court has mandated in the choosing of a reapportionment plan and that is, that the plan was determined after good-faith effort and secondly, that it achieves the minimal population disparity possible. And if Your Honor please, with the 13,000 down to the 11,000 creating an under representation in Orangetown of 7.1% and an over representation in Clarkstown of 4.8%, the entitled disparity would be 11.9% which I believe -- which we believe to be a population variance not in keeping with requirements of this Court and its decision. Warren E. Burger: Is the -- is this dynamic growth that you were describing continuing or the projections that it will continue? Frank P. Barone: Yes. Warren E. Burger: Eighty some thousand increase in nine years? Frank P. Barone: Yes, it’s even increasing at a more phenomenal rate than that Your Honor and I don’t have the exact figures but I’m sure that counsel will indicate that the growth is not only phenomenal but yearly increase -- the rate increases yearly. Warren E. Burger: Well, then a plan that was acceptable at the beginning of one year might not be acceptable by the end of that calendar year, isn’t that true? Frank P. Barone: Yes, it certainly might not be acceptable at the end of that calendar year. That is essentially the reason we are here because we believe that a single-member district which does not have static lines as our multi-member district does can best be moved or be flexible enough so that in the determining representation, the ability to determine that representation is inherent in the plan which it is not in the multi-member district plan which utilizes town lines as the boundary for the district. As I say, the disparity in the County of Rockland at the present moment is 11.9. The cases decided by this Court have clearly indicated that a good-faith effort must be made. Secondly, that if there is going to be a population variance, a disparity, that there must be some articulate reason set forth to show that the policy of the State clearly indicates that such a population variance will be tolerated by reason of state policy. There has been no state policy clearly enunciated by the State of New York permitting such population variances. It is respectfully submitted that the decisions in this Court as I said moment ago are absolutely consistent and that population variances will not be tolerated. Whatever the plan, unless it can be shown that there is a clear rational state policy and further that a good-faith effort has been made. The inescapable conclusion must be that whenever it is shown, that another plan of reapportionment can reduce the population variance it must be adopted in lieu of the existing plan no matter how minimal the population deviation is under the existing plan. Speaker: What is it the attitude of, Mr. Barone of your clients to the Molof plan? Frank P. Barone: I beg your pardon, sir? The attitude to which plan? I’m sorry I didn’t hear you. Speaker: To the -- is it Molof? Frank P. Barone: The Molof petitioners, June Molof, Mindy Baker, etcetera entered this matter as intervenors in the lower court and we substantially take the same position that the only plan which is workable in the County of Rockland is a single-member district plan. Speaker: Well, that isn’t precisely my question. My question is, would your clients in the posture of the case today support the Molof plan? Frank P. Barone: Yes. Speaker: Alright. Even though it has a variation of 3.5%? Frank P. Barone: Yes. Since the Molof plan as you referred to it Your Honor has a population deviation of less than the 11.9 presently in existence. Speaker: Well, do you really mean that? If it were 7.6, would you be supporting it? Frank P. Barone: I think Your Honor, we must support a plan which has been made on a good faith -- a good-faith effort has been made in its implementation, and secondly, that the population variance must be the minimum which can possibly be had under the circumstances. And a multi-member district plan using town lines as static boundaries cannot possibly be flexible enough to move with the phenomenal growth which this county expects and which it has had. John M. Harlan: Why do you suggest it wasn’t a good-faith effort? Frank P. Barone: As I pointed out a moment ago, Mr. Justice Harlan, the County of Rockland had appointed a sub-committee -- had appointed a charter commission and there was a sub-committee and that sub-committee did suggest a single-member plan that was rejected by the board of supervisors. The board of supervisors in lieu of that implemented the second recommendation which is a multi-member district plan utilizing town lines as static boundaries thereby and the fact incidentally that the supervisors would automatically be members of the county legislature, thereby, perpetuating themselves. Counsel for -- counsel -- my red light’s come on and other counsel in this matter for petitioners will carry this point forward. Thank you gentlemen. Warren E. Burger: Mrs. Ulman. Doris Friedman Ulman: May it please the Court. If I may, I’d like to clarify a few points that were just -- that have just been made. In answer to Mr. Justice Stewart’s question about multi-member districts for Rockland County. We believe that we -- it is possible to have multi-member districts in Rockland County provided -- Potter Stewart: Not using town lines. Doris Friedman Ulman: Not using town lines and not using static boundaries. Potter Stewart: Right. Doris Friedman Ulman: Secondly, -- Warren E. Burger: Can you define this to what you -- Doris Friedman Ulman: I beg your pardon? Warren E. Burger: -- mean by a static boundary? Static for how long? Doris Friedman Ulman: A static boundary is which is not subject to change. In other words, the reasons for the present plan are to retain town boundaries because of the interrelationship between county and town government. Now, because of this, the boundary lines could not change. They would have to remain the same throughout the whole plan. Otherwise, you would not have your county rep -- your town representation on the county level. And what we mean by static boundaries is that these boundary lines can never change. Whereas, the population within each town will be changing and incidentally, the projected figures for 1980, I believe were about 300,000 for the county. Mr. Cornell in his brief projected, I believe to 370,000 by 1985. Warren E. Burger: If a plan reflects representation, it is substantially representative and equal here a variation of a very modest amount is it seems to meet per capita. Doris Friedman Ulman: Yes. Warren E. Burger: Why should we become so concerned about how that’s achieved where the lines are whether they’re static or whether they’re changed every two years or whatever? Doris Friedman Ulman: Well, we have in our brief set forth the percentage deviations that would have occurred. If this plan had been in effect since 1950, and they were six federal census taken between 1950 and 1969, of those six years, four -- during four of those years, we would have reached a deviation in excess of 20%. As a matter of fact, as recently as 1966, we would have had a deviation of 26% between the highest and the lowest population for legislator. Under the present multi-member plan carried to it its extreme, if we follow the planning board projections for 1980 of 300,000 we will have a deviation of 52%. And if I may refer to a footnote in the dissent of Chief Judge Fuld of the Court of Appeals, he said in example in where we could have a difference of 99.96%. I’m not saying it’s going to go to 99%. But I do say that at any given point, and the census are taking regularly in Rockland right now. Because of its excessive growth, that at any point the deviation could be 6%, it could be 50% and we do not believe that a plan that has this kind of possibility for huge disparities should be -- should be accepted as a permanent plan of reapportionment because truthfully, if next year it goes up to 25%, we’ll be in court again. And we do not think that this is a good basis, a sound basis for a permanently apportionment plan. We’re not claiming that multi -- that all multi-member district plans are unconstitutional. Speaker: But Mrs. Ulman -- Doris Friedman Ulman: Yes? Speaker: -- aren’t you, I take it one of your points is that in drawing in a multi-member district, the number of representatives that that multi-member district is entitled to is not just a multiple of the base population figure? Doris Friedman Ulman: Yes, it is. That’s how we get our discrepancies. Speaker: But I thought one of your points was that, in this case, that a multi-member district is really overrepresented is a sign that representatives -- the number of representatives which is just a pure share of multiple of the base population figure? Doris Friedman Ulman: No, I don’t think we presented that argument here. What we did say was that because we are faced with the base population being the size of the smallest town, in this case the only point. Each town being a multiple of that number brings us to our deviation. In other words -- Speaker: Let’s just -- let’s assume the multi-member district here, the system came out with a 1% deviation or half of 1% deviation and was as close to equalities you could possibly get. You would accept it? Doris Friedman Ulman: No, we cannot accept the -- we cannot accept it as a permanent plan. Speaker: Well -- Doris Friedman Ulman: For two reasons. Number one, the static boundaries. Number two, we do not believe the good-faith effort has been made. Speaker: But you don’t attack the idea of assigning to a multi-member district? That number of representative which is just a multiple of the base -- Doris Friedman Ulman: No, we do not. Speaker: -- as a present figure. Doris Friedman Ulman: No, we do not. We only object to it as it applies to Rockland County. Speaker: You don’t buy the notion then that a multi-member district is overrepresented? Doris Friedman Ulman: No, I do not. Speaker: If that was the defense here? Doris Friedman Ulman: No, I do not. Speaker: However, that claim was made in New York Court of Appeals. Doris Friedman Ulman: It was made -- Potter Stewart: But it is not made here. Doris Friedman Ulman: Not made here, right. We do not feel that the County of Rockland has made a good faith-effort to achieve the precise mathematical equality which was required by this Court in Kirkpatrick against Preisler. Speaker: Excuse me, Mrs. Ulman. Doris Friedman Ulman: Yes, sir. Speaker: Do I understand that even if you had virtually precise mathematical equality using town lines -- Doris Friedman Ulman: Yes. Speaker: -- even if that were achieved, would you still argue that this would not satisfy -- Doris Friedman Ulman: We argue -- Speaker: -- constitutional terms? Doris Friedman Ulman: We’re not arguing this case on the basis of numbers. We’re arguing it -- Speaker: Well then, then if you’re not that in fact you are essentially attacking the legitimacy of any reapportionment plan that uses fixed town lines as a basis for opposing representation. Doris Friedman Ulman: That’s correct. Speaker: Well, how can you do that consistently where the suggestion in Reynolds and Sims that it is appropriate to use town and county wise? Doris Friedman Ulman: For the fact that Reynolds said that population should be the controlling factor in deciding a reapportionment plan. Speaker: My point, my hypothetical was that you would come out with the basic quality that (Voice Overlap). Doris Friedman Ulman: Yes. Well, basic -- Right, for this year it would be an equal plan. Next year, it might not which is the -- this is the basis of our argument that whereas today, we may have a 0.5% deviation and it might pass master under the plan, under the cases. However, by the -- Speaker: You’re saying that that would be impossible to maintain equality of certain things happen by just designing different members of representatives -- Doris Friedman Ulman: That’s correct. Speaker: -- by the district, unless, you went to fractional voting? Doris Friedman Ulman: Yes. Speaker: Now, is fractional voting then rejected in the New York Court? Doris Friedman Ulman: As I know it has -- we’ve had weighted voting which was rejected by the lower court as it applies to Rockland. We have never had any other plan. Speaker: Do you accept the weighted voting or fractional voting or do you reject it? Doris Friedman Ulman: No, I do not. I reject it. Speaker: Why? Doris Friedman Ulman: I believe that for Rockland, because of its size, because of its growth, a single-member plan is the only plan that can be valid representative and practical. I -- Speaker: Every district should have at least one vote not a half vote. Doris Friedman Ulman: Yes. Speaker: Although they would have a man there -- they would have a man there. Doris Friedman Ulman: Well, they have had a man there. Right. Speaker: Well, they have a man there with a -- Doris Friedman Ulman: Would have a vote. Speaker: Whatever 24.50 can have plus his half vote. Doris Friedman Ulman: Yes. And actually -- Speaker: In the district we’re getting some that don’t have any vote. Doris Friedman Ulman: I beg your pardon? Speaker: We’re getting someone in the Congress who don’t have any vote. Doris Friedman Ulman: We do not feel that Rockland is capable of having equal representation without single-member districts. Speaker: Mrs. Ulman, you made mention a minute ago about a permanent plan. Is any reapportionment plan permanent? Doris Friedman Ulman: I believe so. I believe that it is permanent subject to changes of district lines as population changes. Even a single-member district plan will not -- you won’t have the same districts year after year. However, because they are not static lines, you can shift your lines so as to take care of the population increases or shifts or whatever they may be. Another advantage of single-member districts of course is that the legislature would not become unwieldy as it can under this multi-member plan. Assuming that the population of Stony Point for example were to remain fairly static, and the population of Ramapo which is our largest town continues to increase. We can have as many as 20-25 even more legislators in a county, the size of Rockland and we don’t think that would make a very workable situation. As a matter of fact, as a practical matter, many people feel that the present 18 that we have is not very workable, too large. Basically, we don’t think that the county made good-faith effort because they accepted as their basic premise the fact that they should be town representation on the county level. Because of that, we have the town boundary lines. The towns and the county of course do have interrelated functions. However, the plan itself does not provide for town representation on the county level. People who are elected within the towns have no relationship whatsoever to town government. They are in effect representing the people within their district as a single-member district legislator would. The only one who would have liaison of course is the town supervisor who may be elected to the county legislature. But it’s only one vote out of 18 and he really does not have the ability to influence legislation without one vote with regard to his town. Furthermore, we feel that there is no need for town representation on the county level. Rockland is no longer a small rural community. It has grown from a 137,000 in 1960 to, I believe 228,000 in 1970. It has -- it offers services in the area of air and water pollution now, mental health welfare help, and so on. Potter Stewart: What is the -- if you can say without mentioning names of people I notice in that. What are the basic political forces that work here that are causing this controversy. Is it the matter -- is it something like that Stony Point can join, example with Clarkstown and Orangetown to get the majority or is there some sort of maneuvering here that you originally politically object to? Doris Friedman Ulman: Originally, when this plan was put forth it was created by the board of supervisors which was the five-man board on the county legislature who were also supervisors in their own towns. The purpose of the plan as I see it was to maintain their individual parochial interests within the county legislature. They wanted to retain some kind of town control for their own political means whatever they were. As it turns out, the supervisor in one of the towns, Ramapo for example, does not even seat on the county legislature. He never ran for the county legislature. So if we’re going to accept the county’s arguments in favor of town representation, Ramapo the most populous town has no representation on the county level. Potter Stewart: Well, you got six -- Doris Friedman Ulman: You have six representatives -- Potter Stewart: -- reps from Ramapo. Doris Friedman Ulman: Yes, from Ramapo representing the people within the district of Ramapo. There is no liaison between the town government however and the county government. In other words, no one on the town level knows what’s going on in the county and no one in the county will carry forward any basic plans that have been proposed by the town government. This is what I mean by no representation of the town itself. Potter Stewart: I see, of the town official. Doris Friedman Ulman: Right. Potter Stewart: Of the town official. But the -- as I say, perhaps it’s a difficult question to answer, perhaps you prefer not to answer it but I wondered if there were some sort of leverage or something in the present system that you basically have political objection to? Doris Friedman Ulman: In the present system, I really could not say. I have no -- Potter Stewart: You rely of course just on fourth grade arithmetic. But I wondered what this controversy is really about? Doris Friedman Ulman: No. We rely on good-faith effort. We don’t believe that the arithmetic is as important as the effort that has not been made by the county to maintain equal representation. As I say, I am not concern that last year, it was 11.9%. This year, I believe its 8%. I’m more concerned that the effort of the county to achieve equal representation was not made. And I believe that this was mandated in Kirkpatrick. It follows the “as nearly as is practicable” rule of Wesberry which was cited by Reynolds in extending the Wesberry rule to state government. It was again cited in Avery relating to county government and the whole projection as a matter of fact was set fort in the recent Hadley case where Wesberry, Reynolds, and Avery were cited. We believe Kirkpatrick -- Potter Stewart: If I’m not mistaken, your red light flash -- Doris Friedman Ulman: Yes, if I may just finish this. Potter Stewart: -- you’re answering my question. I didn’t want you to waste your time. Doris Friedman Ulman: I believe that the Kirkpatrick reasoning of good-faith effort has to apply to all these cases because if it elucidates Wesberry it must follow through into the cases the followed it. Warren E. Burger: I wonder if your proposal, your plan takes into account the difference in the basic functions of county governance as compared with basic functions of town government. Doris Friedman Ulman: We feel -- Warren E. Burger: You seem to treat them as though they’re just fungible items town and county? Doris Friedman Ulman: No, if I may so. The math that we presented to the Court of Appeals, we presented a single-member district matter where we make -- we try to make a good-faith effort at position at the same time retaining the cohesiveness of villages and town lines wherever possible. We believe the interests of a village for example are much more cohesive than the interests of a town which at this stage of the game, most of the logic towns have such varying interests. And we feel that the effort can be made to retain certain boundaries while at the same making the effort for equal representation. Thank you very much. Warren E. Burger: Mr. Cornell. J. Martin Cornell: Mr. Chief Justice and may it please the Court. The only issue involve in this case is a question of numbers. Rockland County is a relatively small county and politically it’s a swing county. It’s sometimes a democratic and it’s sometimes as republic. The board of supervisors consisting of the five supervisors originally was a democratically controlled board and they devise this plan of reapportionment and after the last selection of the board became or the new legislative body became republicans so that politics really is not involved in this case since it swings back and forth. The original -- Speaker: This isn’t anything like an effort of some reform group or movement to try to get rid of the professional politicians or anything like that. J. Martin Cornell: I don’t think that that is in the case at all, Your Honor because -- Speaker: Just a matter of the simple mathematics? J. Martin Cornell: That’s correct. Speaker: Philosophically. J. Martin Cornell: The original board of supervisors felt that it was important to maintain a voice on the county level of government from the towns and that’s what brought about this type of multi-member district plan and that’s really the only thing that’s involved here. Also, it was felt that there were certain towns like the smallest town, Town of Stony Point that was somewhat isolated from the other towns which are large and they wanted to have a voice of their own. They didn’t want to be amalgamated with a not a larger area and perhaps ease that type of identity which that community had had over the many years. So what we’re talking about really is numbers here. It is our position that the plan which was devise complies with the rule which was set down in Reynolds versus Sims and apply to local governments in Avery versus Midland County which requires that the population be substantially equal or in other terms as was used that as nearly as practical -- practicable the district’s view of equal population and we feel that we have actually met that test. Now, I am set forth in appendix A-2 of my brief a complete breakdown of how these figures operate and at the present time, based upon the 1969 census, the population variation which is the largest is in the town of Orangetown where the deviation is 7.1% underrepresented and then the town of Clarkstown that’s 4.8% overrepresented making a spread of 11.9% from the smallest to the largest. Now -- Speaker: As of 1969 but not true as of 1970, is that right? J. Martin Cornell: That’s correct. As of 1970 and these figures are not before the court because these figures are very recent, the 1970 census has reduced these population disparity so that the town of Orangetown which did have a 7.1% under representation, now is underrepresented by 4.7%. The town of Clarkstown which had a 4.8% variation now has a 3.2% variation. The town of Ramapo has a 0% deviation that hits it right on the nose. Haverstraw has a 0.8% variation at the present time and that the Town of Stony Point, it changes from 0.3% to 1.1%. Now, the spread between the largest and the smallest now is 7.9% so that the deviation between these two smallest and largest of 7.1%. Now in terms of absolute population, this amounts to 1,017 people. If you take the town -- Orangetown which has a deviation of 4.7% to bring that into line, you would have to shift the lines around some 400 or 500 people which we feel is unrealistic because in fact it means that you may have to cut a district line down somebody’s backyard of even to an apartment building to pick up that number of people. And I think that one of the factors that’s extremely important here is to recognize that when you talk about percentage deviations, you must consider the size of the district which is involved. Now for example in Wells versus Rockefeller involving the State of New York which was approved by this Court in May, the new districting plan on the congressional level. The average population for the congressional district in New York which is approved was 490,324. Now 1% deviation in the congressional district would amount to an absolute population of 4,000, a little over 4,000 people. Now, it’s one thing to shift to district lines around to pick up or exclude 4,000 people. But a 1% deviation in Rockland County amounts to 1% of the main population of 12,000 or approximately a 121 people. And it is impractical and unrealistic to consider a necessity of shifting or moving lines or adjusting legislators to pick up or exclude a 121 people to provide for 1% deviation of more. Therefore, it is our position that you must look at the size of the district in relation to an analysis of percentage deviations so that it can be a practical application of rule. I would also like to point out that the question which was raised in the Hadley case involving the trustees in the community college which was not approve by this Court was a different type of situation. There you had a built-in bias in favor of the smaller districts. There were six trustees that were elected and the larger district would only get three trustees if they were from 50% to 60% of the school enumeration in that case. And this Court said in that case that you are not reaching the question as to whether or not there is equal apportionment of trustees among a limited number of component districts. And you stated that he have said before that mathematical exactitude is not required but a plan that does not automatically discriminate in favor or certain districts is and in that case, that’s exactly what there was. There was a built-in bias and an automatic discrimination against the larger districts. There’s a built-in bias in favor of the smaller districts. That problem is not found in this case. In this case, we merely have a situation where there were equal member districts -- multi-member districts and there is no built-in bias that’s in favor of the smaller or the larger districts. There was reliance by the petitioner here upon Kirkpatrick versus Preisler and Wells versus Rockefeller. These were both congressional cases and in the Wells versus Rockefeller case, there was a rejection of a maximum population spread between the highest and the lowest of approximately 13%. In the Kirkpatrick case involving the congressional districts in Missouri, there was a rejection of a spread of approximately 6% between the highest and lowest. Now, it is our position that you cannot on a wholesale basis take these percentage deviations that may not be acceptable on a congressional level and transpose them down onto smaller districts where there is smaller populations involved. Also, I think the facts in both of those cases are distinguishable. In Wells versus Rockefeller, we had a situation where the State of New York admitted that there was an attempt to provide equal population for sub-districts and that the congressional districts were then carved out of these regional districts within the State and the record shows that the State admits that there was not an effort really to fine home the district lines on the congressional level. In the Missouri case, there are also indications that, number one there was not a proper census data that was made for determining the district lines. And also there is a clear admission in that case, that merely by shifting several counties around that they could have provided for a more equal population in those congressional districts. We don’t have that situation in this case at all. The town lines have been used as the district lines and the legislators have been allocated to the towns in accordance with the population and as I say the population deviation is extremely minimal and there is no way that you could arrive at a lesser population deviation if you would hear the town lines. This is the only way that it can be done. Now, Chief Judge Fuld in the Court of Appeals dissented. And he asked me when I argued that case off the bench whether I wasn’t concerned about the future population changes and whether or not this plan might depending upon how the figures came out subsequently result in a more substantial deviation. Before I had a chance to answer the question, Judge Breitel said yes but the figures might get better. And that’s exactly what happened here. So I think that the argument that he relies upon his dissent has been undercut by what actually has happened here. Any plan whether it’s a single-member district plan or a multi-member district plan as soon as the population changes whether it be the next year or thereafter, there may have to be some adjustment to account for the changes in population. As a matter of fact, in this case, the population figures that resulted in 1970 improved the situations, so the population deviation now is as low as I mentioned before 7.9%. So I think the reasoning that Judge Fuld set forth in his dissenting opinion cannot be upheld based upon actually what happened. Speaker: Is there -- do I understand there’s a census or at least a count of the population of Rockland County every year? J. Martin Cornell: For purposes of securing additional state aid on a local level, it’s frequently is advisable if a population and a growing to have a census taken to determine what the population is. They do it every three years. Speaker: Every three years. The county itself does it? J. Martin Cornell: No, it’s done by the Bureau of Census in Washington. Speaker: The Federal Bureau of Census? J. Martin Cornell: Federal Bureau of Census. Speaker: And I suppose if three years from now, that census showed a great dislocation. There could, any plaintiff could come in and say it’s a constitutional required you’re not reapportioned. J. Martin Cornell: Precisely, if the population figure show -- Speaker: That’s true with any plan. J. Martin Cornell: It’s true of any plan. It’s true of a single-member district plan, you have to re-draw district plans and in a multi-member district plan, if you have this problem, you might then consider the possibility if there was substantial deviations of providing for fractional vote that would be spread among those legislators. It’s just a possibility but there are number of things that could be done. But any case, if there was a population change, and if the deviation was substantial then of course the then legislation would have to take the necessary steps to rectify that deviation. Speaker: There is a whole process of -- I recommend to stop and get away from. J. Martin Cornell: Yes, Your Honor. Speaker: What was the basis for -- was it a judicial rejection of weighted or fractional voting in this case or was it by the commissioner or by the people or both? J. Martin Cornell: The people of Rockland County had two referendums. Initially, they had a referendum on a plan which is almost identical with this plan and they rejected it. About seven months later, there was a second referendum that had this plan plus a single-member district plan which is the plan which the petitioners were asking for and the voters rejected both of those. Then the Court was asked on a temporary basis to impose a weighted voting plan until a permanent plan could be devised because the voters kept rejecting everything that was presented to them. The Court said no that they felt it a weighted voting plan in this county was not feasible and I agree with -- Speaker: Not feasible, why is that? J. Martin Cornell: Well, the reason is that Rockland County if it’s analyzed mathematically, the larger towns because of their size would be in a position to nullify any vote or any vote that would be accorded to the smaller town because it is such a small town. Speaker: Well, that’s so onto this plan, isn’t it? J. Martin Cornell: No, because here you have multi-member districts whereby you have -- Speaker: Have other districts are all in town. J. Martin Cornell: Yes, but you have 18 bodies on the legislature. If you had one body with six votes, unless -- Speaker: I’ll put it this way. Assume the population changes so that in order to have each town represented, you must have less than one vote assigned to some town. That wouldn’t raise the problem here talking about then you’d still have it, would it? J. Martin Cornell: Well, the way the plan would function would be that you would always give one legislator to the smallest town. Speaker: But just with the half of (Inaudible) or something? J. Martin Cornell: Well, no. Actually, the way I devise this plan was that you start off by giving the smallest town one representative. Speaker: Yes. J. Martin Cornell: And then you divide the population of the smallest town into the others to generate the proper number of legislator’s fee of the town. So that what fluctuates is the number of legislators. Speaker: I know but I gather the argument on the other side was that technique theoretically could result in very wide -- much wider variation and population change is great. J. Martin Cornell: Yes, if it did, of course it had to change the plan. Speaker: Well, are you -- have sort of started with the one full vote, you just start with the half vote. J. Martin Cornell: Correct. In other words, some mechanism would have to be devised to provide for that deviation. I think it’s important in this reapportionment case to recognize what’s involved here between town and county government because this is really the stimulus for this type of plan. In the State of New York, county governments in the past have been run by the supervisors who are the chief executive officers in the towns within the county. There was never any legislative body on the county level that was directly elected. The town selected a chief executive officer who served on the county border supervisors and actually an ex-officio capacity and would run the county government. Therefore, the towns had a direct voice in the operation of county government. And on the county level, there are a number of functions of county government which can also be performed on the town level. And the desirability of having an interrelationship between a town and county government, in the opinion of the board of supervisors was to provide for the conduct of business on this countywide basis so that there would be an interrelationship between the operation of both county and town government. For example, there is a large county sewer district in the County of Rockland which has a sewer plant and sewer lines which ties indirectly with lateral lines in the towns so that this function of providing sewer service is directly interrelated between town and county government. The county has a Civil Service Department which administers the civil service on the town level. There is a very direct physical interrelationship between the town and county governments. The towns assess the real property. The towns adopt their budget and then the towns transmit the amount of money to be raised by taxes to the county level and the county legislature then levies the tax and directs the town receiver of taxes to collect the tax. And then if their moneys are not paid as required it is then sent back to the county to collect the delinquent taxes so that this is a very direct type or interrelationship between the town and county government which has grown up historically in the State of New York. Speaker: Mr. Cornell may I ask, basically is your proposition that proactive tests applies throughout the -- a little more play in the joints when you’re dealing with local and county government or is your proposition that where you’re dealing with Rockland County draw to be a different test from that which apply to what you are suggesting? J. Martin Cornell: My position is that the test of substantial equality applies on the local level and that the equal protection clause must apply on the congressional state and local level. But -- Speaker: So it’s the same test but with a little more latitude? J. Martin Cornell: Precisely. Speaker: In dealing with the local county. J. Martin Cornell: Precisely, it’s the same test but when you ascertain whether there has been substantial equality or not, you must look at the numbers -- the figures that you’re dealing with. Now, for example, in the Kirkpatrick case, this Court said the whole thrust of as nearly as practical approach is inconsistent with the adoption of the fixed numerical standard which excuses population variances without regard to the circumstances of each case. Speaker: Are you -- you would say then that when you’re dealing with local government, the desire to organize on a town shift line basis or town line basis especially where they have real functions as in this case is a rational justification of excuse for some population variation? J. Martin Cornell: That’s correct. Speaker: Whereas, but that it might not be enough of an excuse if the variation were 50% or some higher figure? J. Martin Cornell: That is correct Your Honor. Speaker: But -- and also, it might not be a justification that the town lines were really functionally irrelevant to a local government. J. Martin Cornell: That is correct, Your Honor. Of course, I’m also taking the initial premise there that the population deviations in this case are so minor that they are not substantial deviations to begin with. Speaker: You mean, this is base not on the 1970 but on the figures that were actually used? J. Martin Cornell: That’s correct, on 1969 or 1970. Speaker: Because of the smallest of the numbers. J. Martin Cornell: Because of the smallest of the numbers involved but in any case, I take the second step and say, if this Court concludes that there is substantial population deviation here that there are justifications that have been shown for this variation. And that therefore, it should be allowed under the tests it’s been applied. And that was the format that was used in Swann versus Adams involving Florida and Kilgarlin versus Martin in Texas where you rejected the arguments there saying that the populations were too large and that there was no acceptable justification which is demonstrated before. Speaker: The town lines might be, I take it that your position must be the town lines have some real substance in them for purpose of Local Government at the same variations might not be satisfactorily justified but on the town line basis, if we were dealing with the congressional district. J. Martin Cornell: That’s correct Your Honor. I am saying that a 1% deviation for example on a congressional level which involves a shift of about 4,000 people when you talk about a 1% deviation on a local level involves a shift of approximately here a 121 people gets to be a little unrealistic. Speaker: But also the town line -- the basis of the town lines perhaps have less significance with respect to a representative or congressman? J. Martin Cornell: Yes, unquestionably. I think on a congressional level that municipal boundary lines are far less significant that they are for example in New York where historically and traditionally, there has been this interrelationship between town and county government. Now, as a matter of fact, to demonstrate the interrelationship here, the plan of reapportionment when it was originally devised provided that the town chief executive officer who was elected within the town would be one of the legislators within that town automatically and that he would serve for example in the town of Ramapo which has six legislators. There would be the supervisor of the town, the chief executive officer plus the five others which would provide for very direct interrelationships so that the chief executive officer on the town would still continue on the county level. The Court in New York rejected that and said that the statutes did not permit that interrelationship. Therefore, the chief executive officer in the towns must run separately for that county office. In other words, the chief executive officer in the town can run on the ballot in two places. One, he runs as a legislator and secondly, he runs as a town supervisor and as a practical matter, in Rockland County today, out of the five towns four of them have their chief executive officer who serves on the town level and is also elected and serves on the county level as well and one of the towns this is not the case. So that this plan has effectively provided for this interrelationship between town and county government which is what is attempted to do being also in compliance with the requirements of Reynolds versus Sims. You see what happens on the local level is that when you apply the rule of one man, one vote to a situation like this. It can have the effect if you set up single-member districts of slicing a part the interrelationship between town and county government so that you would separate the operation of county government and town government. And it was our attempt to comply with the rule but at the same time to apply for this interrelationship. And that’s exactly what was done here in Rockland County. The concept of tight mathematical equality is our position is somewhat unrealistic when you’re dealing with populations which are shifting constantly from time to time. It’s true even in the situation of Rockland County where the census itself is not a scientific ascertainment of the number of people involved and also where in fact there is a constant growth and a constant shift. So that to provide for a very tight absolute mathematical equality at any one point in time, seem somewhat illusory because within a few months or a year thereafter it may have shifted or changed so that in fact is not achieving the ultimate goal. The flexibility which is required on the local level here in Rockland County is desirable and it is our position that if a tight mathematical formulation is applied on the local level that it may create difficulties in other areas where there is attempts perhaps you create regional governments or amalgamation of governments on a regional basis between some of the cities in the suburbs and that there you may have a necessity for compact or an understanding between these governments to arrive at a regional type of approach of the government and if you apply the population, the equal population principle with strict exactitude on the local level this may have the effect of foreclosing the ability to create any type of regional governmental units which I suggest may be some of the solution to the problems which we’ve had in the cities in the next decades ahead. Now I’d like to touch briefly on multi-member districts from the theoretical standpoint. I know that my adversaries have not raised this but it was raised in the Court of Appeals and Judge Fuld does touch upon this point in his dissent. And I think it’s in the case and something that I should discuss very briefly. This Court has of course upheld multi-member districts on a number of occasions. Fortson versus Dorsey involving Georgia was one of the earlier cases. Burns versus Richardson involving the State of Hawaii and then there have been a number of affirmances of lower courts involving Wyoming, Arkansas, and of course recently the State of New Jersey and Jackman versus Bodine which I think you’re familiar with provided for multi-member districts as well. It is our position that the use of multi-member districts is a constitutional method of complying with the one man, one vote requirement. Speaker: Was it any testimony taken into connection with this plan in the lower courts? J. Martin Cornell: There was no testimony at all Your Honor. The plan was devised by the board of supervisors and presented to the Court and the Court passed upon it based upon the format of the plan without any testimony being taken. Speaker: I take it that the -- one of the attacks on the multi-member plan in the lower courts was that they expect the side of multi-member district shouldn’t be just a mere multiple of the -- J. Martin Cornell: That is correct. As a matter of fact -- Speaker: Was there -- weren’t any experts or anything called in the connection with this? J. Martin Cornell: No, although Professor Banzhaf who wrote the leading article on this subject did argue orally for the petitioners in the Court of Appeals in New York. And the Court there had the benefit of his comments before them at that time. Speaker: But then there were no counter-mathematics presented? J. Martin Cornell: Not other than what was set forth on oral argument. There was no expert testimony which was taken. Of course, in this case there is no problem as there was raised in some of the multi-member district cases and the one which will be coming before this Court involving Indiana of invidious discrimination. So that does not involve here at all. So that the only question that was before the Court of Appeals was our multi-member districts per se bad if you allocate legislators direct proportion of population rather than bringing in the factor of the square root of the population. Speaker: Have there been any other court cases that involved the same claim? J. Martin Cornell: Yes, there have. The Indiana case involved this question and in the Indiana decision the court although it had a number of other factors involved did touch upon this question of whether multi-member districts were -- Speaker: Have there been any others? J. Martin Cornell: The Supreme Court in the State of Iowa, Kruidenier versus McCulloch struck down a plan which did provide for multi-member districts. This is not -- this case is not cited in my brief. The concurring opinion by Justice Stewart in the case touched on the question of multi-member districts and in reading the opinion, I suspect that he was saying although I’m not clear about this, I suspect that he was saying that multi-member districts were per se bad. Speaker: Based on the Banzhaf? J. Martin Cornell: Based upon the Banzhaf theory. Speaker: Any others where this have been litigated? J. Martin Cornell: Those, the Iowa case and the Indian case are the ones, of course the New Jersey case, Jackman versus Bodine. This was touched on but there the plan was of course approved. Speaker: But do you know any instances where those people who are drafting apportionment plans either judges or commissions or lawyers or legislators have run on the assumption that multi-member districts should be assigned strength on some basis other than the multiple of the base figure? J. Martin Cornell: No, I don’t Your Honor and I’ve made inquiries and I have not been able to find any plan that’s been drafted or in the contemplation of being drafted which does assign less done a direct proportionate number of legislators. Speaker: Thank You. J. Martin Cornell: And I think one of the problems here on this theoretical aspect of multi-member districts is actually covered by Professor Banzhaf in his law review article which I have in front of me. He says in his own article as follows, “No attempt has been made to evaluate all the advantages and disadvantages of multi-member district systems. Furthermore, there is no suggestion that this article presents a realistic picture of their actual operations which of course would involve the factors which are not present in the simple mathematical models. And I think the problem with Professor Banzhaf theory is -- Speaker: He doesn’t suggest how much discounts he make, does he? J. Martin Cornell: No, he does not. Speaker: He just has too much punch in the single district having several, several representatives as against some other districts having a fewer number or any one. J. Martin Cornell: That’s correct. Speaker: And somehow, you’re supposed to discount it. How much? J. Martin Cornell: Well, he uses a square root factor. He would say for example if I understand his theory correctly. He would say that if he had one district with 10,000 people and if you have another district with 40,000 that it would be mathematically improper to allocate one legislator to the small one and four to the larger. That the number of legislators should be allocated to the larger district, is the square root of the population for two legislators. Speaker: Yes, but that’s just something it goes out of the -- J. Martin Cornell: Well, he -- Speaker: What’s the justification? J. Martin Cornell: He uses a mathematical formula to arrive at it and I’ll be quite candid, I’m not sure that I understand all of the [Voice Overlap]. Speaker: He really thinks that it’s so (Inaudible) that you ought to be to a single-member district. J. Martin Cornell: If you follow his arguments logically, it would lead to the conclusion that the only possibility is a single-member district plan or that they would have to be some adjustment in a number of legislators. Speaker: Well, if his basic premise is right maybe there’s some logic to that. J. Martin Cornell: Well, I think the problem with his theory -- Speaker: I said if his basic essence. J. Martin Cornell: I think the problem is that he does not in creating these mathematical models recognize that a legislator once he is elected from a district takes into consideration the interests of the entire community. He may be affected be party alliances. He may be affected by pressure groups. He may be affected by what he thinks is right. Speaker: If you make that assumption, do you think Reynolds against Sims would have come out differently? J. Martin Cornell: No, I don’t. Speaker: That’s interesting. J. Martin Cornell: I think Reynolds versus Sims is really saying that what is required is effective and fair representation. And that the ultimate goal and the ultimate aim is to provide for representation by the ultimate constituents on the legislative body and I think that is the test that should be applied. And I think when you get to the mathematical refine measure, you’re moving away from the general premise behind Reynolds versus Sims. Warren E. Burger: If you follow the Professor places towards logical conclusion there’s something inherently unfair at New York having 70 or whatever number or members of the House of Representatives and Alaska has only one. J. Martin Cornell: Yes. Warren E. Burger: I think there’s a geometric progression in the force and influence which New York Congress can exercise as compared to the last case. I suppose, inherent to is, that because New York is closer to Washington than Alaska. There is some kind of a mathematical factor that gives them good deal and more force here than Alaska can have to remand. J. Martin Cornell: I think if you followed Professor Banzhaf’s theory you would have to come to the conclusion that in a multi-member district plan where you have for example four legislators that the four legislators who would be voting on a block vote and that there would not be these other influences involved. This distinguishes the situation from weighted voting. In the State of New York, there are at approximately 18 counties that have weighted voting. They are of course your allocating all the votes to one individual and there you would have a situation analogous to block voting in a multi-member district. But the voting power on the legislative level in a multi-member district, in this case, you have 18 legislators. Even though five may come from one district, there is absolutely no assurance that you’re ever going to get block voting. As a matter of fact, you normally don’t because the political alliances are different and they vote them on a party line as opposed to voting necessarily from, depending upon where they actually resided. So that I think that the use of multi-member districts is a valid method of apportionment and that you cannot say per se based upon the mathematical models that have been developed that is bar. Thurgood Marshall: Mr. Cornell, not saying that’s invalid or not but wouldn’t you think that if you had the choice of one person representing you or for representing you and one, you wanted something done and two, you want to hold somebody responsible for it, wouldn’t you better off with one as to four? J. Martin Cornell: Well, I think -- Thurgood Marshall: I don’t think he has a thing to its case with it? J. Martin Cornell: Yes. This may be true. I think that when you’re talking about and as a matter of fact the concurring opinion in this Iowa case that I mentioned before, Judge Stewart discussed the same type of thing. He said, isn’t there’s something wrong with one man being able to vote for 13 people and another man being able to only vote for one. Now, the problem with that theory is that the Chap is only voting for 13 people may be in a very large district. So he’s only one out of a multitude of other people. So that for him to have 13 legislators or four legislators in relation to total population of the component district which he is a part really is not giving him a better shape than the other Chap who is voting for one. Thurgood Marshall: My second question, about this fixed line, with regular district lines, how would they be moved in Rockland County? The commissioners will do it to the legislature -- the county legislature? If you didn’t have this fixed boundaries? J. Martin Cornell: Well, the county actually in established in this plan of reapportionment appointed a reapportionment commission which is an appointed body that was part and set up to try to devise the best plan. I presume that if subsequent censuses showed or if this Court says that this plan is no good, that they would appoint a bipartisan commission again to come up with a new plan or a better plan or just to carve line that would meet the test that it will be laid down here. Thurgood Marshall: I’m still am not too sure I understand the sanctity of this town lines. J. Martin Cornell: Well, the -- in New York, the interrelationship of town and county government is the thing that the board of supervisors was the most concerned about. In the past, before reapportionment came in, county government was run by the chief executives of the towns. And there is a great deal of interrelationship between these two levels of government. And it was a concern of the board of supervisors to devise this plan that they like to maintain an interrelationship between these two levels of government, so that the towns would have a voice in the county government that’s why they use the town lines. Thurgood Marshall: And that wouldn’t apply any of the State necessarily unless they could show the same thing. J. Martin Cornell: Precisely. Thurgood Marshall: What my brother Brennan said you are really saying that yours is an exceptional situation. J. Martin Cornell: Well, it in -- Thurgood Marshall: Or are you saying that all counties that have towns are in the same category? That’s what I was driving at. J. Martin Cornell: No, I’m not saying that. What I’m saying is that in New York where there is this interrelationship between town and county governments that adherence to town boundary lines is a justification for some population deviations. And this may not be trued in other jurisdictions where this is the case. Speaker: Mr. Cornell, are you familiar with the case in your State of New York involving one of the agencies of the municipal government of the City of New York involving barrel representation in the city? J. Martin Cornell: Yes, Wagner versus Blaikie. Speaker: You haven’t had the citation of that? I think this Court denied certiorari if I’m not mistaken. J. Martin Cornell: Yes. Speaker: In the case I’m think of. J. Martin Cornell: That case is cited in the majority opinion in this case below although I have a feeling this citation is incorrect because I couldn’t find it this morning. But it’s in that case. It’s a federal supp case, yes and as a matter of fact, that case is quite interesting because there, there was in the districts that were equal population then on top of that were two representatives from the bureaus of the City of New York. The court held that there was not such a deviation from population there and that the reason for doing this because of the inherent value of the barrels was a valid justification for providing -- Speaker: So there was in addition to its apportionment representation, each of the barrels be it rich man or queens or manhattans or kings, each had two representations. J. Martin Cornell: That is correct. So that you have, I have forgotten the numbers involved but you have two from each barrel plus you have others that were represented from single-member districts which were carved out within the City of New York. Speaker: That was a three-judge court case? J. Martin Cornell: I believe it was Your Honor. Speaker: And did it come here? J. Martin Cornell: Yes. Speaker: And what was the action used. J. Martin Cornell: I don’t recall Your Honor. Speaker: In case I’m thinking if it is [Voice Overlap] J. Martin Cornell: I think cert was denied. Yes, I believe so. Speaker: Is that the Blaikie case? J. Martin Cornell: Yes, that’s correct Your Honor. I would just like to say in conclusion that on a local level and in this case, the importance factor in my mind is that the implementation of the one man, one vote rule has the possible effect of separating talent county government and that the efforts have been made by the board of supervisors to maintain this interrelationship which we feel is justified. And finally, that if the ultimate test is fair and effective representation, is set forth in Reynolds versus Sims, that one should not look at the equal population principle and that presented deviations which are found has the ends but merely a means to actually arriving at the ultimate goal of fair and effective representation. And its thorough absolute-type mathematical analysis of population deviations may in fact frustrate the situation and that the use of town boundary lines in this case, of course also avoids the rather practical problems of gerrymandering. That will not occur here if town boundaries are hereto. Thank you Your Honor. Warren E. Burger: Thank you Mr. Cornell. Mr. Rivet. Paul H. Rivet: Mr. Chief Justice, may it please the Court. I think I will simply comment very briefly on Mr. Cornell’s very excellent presentation on the multi-member district. I do not have basically disagree with him. I don’t think the question here that we have to resolve is whether or not multi-member districts are constitutional per se at all times. Mr. Banzhaf’s theory is fascinating but I don’t think it should be or need be in any fashion controlling or for that matter was never submitted by my clients and never contended by my clients below at any point. I think that there is something that ought to be brought out about the county and town relationship. Mr. Cornell has put this in the sense that we have a -- only in arithmetic question and I think that he is fundamentally in error. I think the question we have here is whether we’re going to have a county government that is dominated and run and oriented to the town government’s or whether we are going to have a county government that is oriented and responsive to the individual voters in Rockland County. And that’s the question that we must resolve not whether there is to be -- Warren E. Burger: How do you give that anymore by -- Paul H. Rivet: Well, maybe if I simply give you some budget for use. You’ll have an idea of the dimensions that we’re talking about. The county legislator on Monday of this week has before it a proposed budget to the year 1971 of $53 million. The largest town in Rockland County for next year, the town of Ramapo has a budget of less than $5 million. Gentlemen, the enormity, the tremendous disparity in the sizes of these governments of the nature of the problems they deal with is such that we can no longer in the interests of the very thing that Mr. Cornell has said that the interest of meeting the growing problems of the 20th century have the tail wagging the dog. We have literally had that situation in Rockland County for many years. This commission that counsel has so well portrayed as having been appointed by the board of supervisors, yes a commission was appointed and its numbers and its representatives were designated by the supervisors and the proportions were in direct relationship to the town per se not the numbers of people in the towns. So that the Town of Stony Point with 12,000 people have three votes on that commission and the Town of Ramapo with 70,000 people have three votes. What can we expect from a commission that does not represent the actual population of the communities? Warren E. Burger: Well, but what’s the situation now in Stony Point? Paul H. Rivet: Stony Point still has 12,000 people in it and Ramapo has 75,000 people. Warren E. Burger: How many representatives does Stony Point have? Paul H. Rivet: Stony Point has one representative. Warren E. Burger: So that what you were worried about before has been cured. Paul H. Rivet: But I’m talking about the good-faith effort that was allegedly made by the County of Rockland and the argument has been made that the good-faith effort is demonstrated every amply by the fact that we had an impartial commission that was appointed to do the job. Well, they did the job alright. They came up with the plan that were maintained the town lines rigidly without any variation. And may I point out that in Fortson, you recognized the right of multi-member districts and you recognized the right to maintain boundaries and very properly so. But within that system, there was the ability to move county lines, not the county lines themselves but the counties within the structure to insure equality of vote and that the first premise and this is the assumption that I’m standing hereon is that my vote is the most important thing. That after that we look at regional problems, we look at governmental problems. I cannot conceive that how our forth forbearers in establishing the constitutional would have conceived of anything less than the most important right being the individual’s vote. Warren E. Burger: Mr. Rivet, suppose we take the figures that were projected from 1969 to 1971 where the 11% variation deviation was reduced down to about 4% -- Paul H. Rivet: Its 7.9 Your Honor to be specific. Warren E. Burger: 7 -- from 11 it was reduced for approximately 4.2? Paul H. Rivet: That’s right. Warren E. Burger: Now suppose in 1971, this gets cut in half again and in 1972, it is one-half of 1% variation, then would you still have a quarrel with it? Paul H. Rivet: I think that you would then have met obviously the mathematical situation. There’s no question with that. Warren E. Burger: Is there any other to meet? Paul H. Rivet: I think it is the first one to be met. But I think we not look at what has happened because if we look at what has happened then I think we also have the right to do some conjecturing. Counsel has objected in his brief to speculation as to the future. Except that when the future turned out okay because the role of the dice came out that the population margin went down, fine, okay. But I simply say that all responsible authorities and this include by the way federal agencies in evaluating Rockland County for building projects. I’m involved with an application right now and I know that Rockland County is one of the two counties in the entire State of New York where there say you don’t have to make 20-year projections because nobody can make an intelligent 20-year projection in Rockland County. That are growth is burgeoning so greatly but Your Honor, there are some realistic limitations on it in the north end of the county which is the base of this plan. Stony Point is something in excess of 50% State Rockland. The policy states them to State Park. Its ability to grow is very severely limited. But the county is going to continue to grow and I think that it is not idle speculation to say that the next time around we will have 25 or 35 representatives in this system. And it is very possible that as part of the result, we may end up with exactly the situation the Chief Judge Fuld in the Court of Appeals said namely, a 90% or an 80% discrimination. And I don’t anyone would argue that that is a good plan or a good situation to have. And what I’m pleading for is not that you leave the door open for people to come back and sue in the future. My Lord! We have enough litigation in the courts. Let’s try to devise plans to deal with reapportionment and rules that local government can follow that will ensure that we don’t have a constant quarrel and constant litigation every time there is a change in census. And I think this plan has within it the invidious invitation to continuing litigation. And I mean that not only in Rockland by I think it will be emulated throughout the State of New York and throughout the country for the very simple reason that it ahs the beauty from the standpoint of those who are in local government now and who have dominated the structure, the desirability of maintaining their own. Counsel has talked about the rational state policy and the importance of the town and the town supervisors. He didn’t mention the fact that even the state law did not write into it the automatic right of the supervisor to seat on this body and yet this county legislature, this county board of supervisors in endeavoring to preserve itself, not to secure equality of representation gentlemen but to preserve itself, put into its local law and when you look in the appendix you’ll see it, the right to seat not because they are elected as a legislator but because they are elected as a supervisor. Well, this was struck down even in New York; the lower courts struck this down right from the beginning. But what I’m saying is that you must look at it in terms of what kind of an effort was being made here, not what was corrected by the courts because we’re talking about good faith. We’re talking about good faith and we’re talking about good faith to a voter and a citizen. Nobody is a going to reduce my taxes by the extent that my vote is diminished in the county of Rockland. And yet my voice and my vote this year was reduced 12% or 11.9%. Next year 8%. Next year perhaps 25%. And all that I am saying is that my vote should always have the same relationship within the ability of men to achieve it. And I do not believe that that effort has been made here and it is not a question of multi-member districts or the (Inaudible) ideas of a professor who has written a very fascinating article on the square root of something. I’m not a mathematician. I’m a lawyer and I’m a voter and I’m interested in government. Judge Stewart, you asked the question this morning at the beginning of our argument relating to the political structure. May I comment on it? Potter Stewart: I guess. Paul H. Rivet: The petitioners here represent the entire spectrum of the political body. Responsible leaders of the Republican Party, responsible leaders in the Democratic Party, public officials, elected, one of my clients is a councilman in the town of Orangetown, and the petitioners June Molof and others are essentially the League of Women Voters of Rockland County. What I am saying is that we are not a group of either do-gooders or people out to hone an ax. We are all seeking an effort to be able to express ourselves fairly with equality before the body politic and we have been frustrated in it. Mr. Justice Marshall commented on, isn’t it better to have a one to one relationship because you know who to look to when you have a problem and you know who to look to when something is not done. Well, what is happening now and we’re having a circus in Rockland County is that we have four and five men representing 40-50,000 people. And it’s a dreadful situation nobody knows who’s responsible for what. And going a step further, I realize that a thousand people may sound like very little. Rockland County, despite my adversaries, my good friend’s brief where he points out that well, you can’t divide an apartment house. Rockland County is not a county of apartment houses. This is a county of residences. And when we talk about a thousand people, we’re talking about 250 families, 250 homes. That is a very large development. And moving a line involving a hundred homes is not a difficult line, it maybe involved moving two or three streets. We’re not talking about running a line down the (Inaudible) of an apartment house. There isn’t an apartment house in Rockland County that has a thousand people in it. I doubt if there’s one in Rockland County to have more than 250 people in it. The issue is not arithmetic. I cannot emphasize that too strongly. Obviously, we can’t win an argument on arithmetic. I mean because you can play games with these figures from now until tomorrow afternoon at this time, and we would never come to a conclusion. And I do not think that the Court wants to set a rule where you say, well, you can’t have more than 1% or you can’t have more than 3%. You must look at the entire picture. In the State of Hawaii, you recognize rigid boundary lines and I think I understand why. Very simply, in the State of Hawaii, you have islands divided by open ocean, in some cases, 50, 60 miles apart. Obviously, you couldn’t divide a man of course that greater distance. I see my light is on gentlemen. Warren E. Burger: Thank you very much Rivet. Thank you. The case is submitted.

Warren E. Burger: We will hear arguments first this morning in Securities and Exchange Commission against O'Brien. Mr. Geller, you may proceed whenever you're ready. Kenneth Steven Geller: Thank you, Mr. Chief Justice, and may it please the Court. The Court of Appeals for the Ninth Circuit has held in this case that the Securities and Exchange Commission, and in effect every other government agency, must provide to the so-called targets of its nonpublic investigations notice whenever it issues a subpoena to a so-called third party. We've sought certiorari because the Ninth Circuit's ruling is without any basis in the law, conflicts with the decisions of this Court, and threatens to impede law enforcement investigations by the SEC and other administrative agencies. The facts that give rise to this case can be briefly stated. In September 1980, the Commission issued a formal order, authorizing its staff to begin a private investigation into possible violations of the securities laws in connection with certain mining stocks. Several of the respondents were named in this formal order. During the course of the investigation, the Commission staff issued subpoenas to the respondents and several other people. Shortly thereafter, respondents brought this suit to enjoin the investigation on the grounds that the Commission's formal order was defective, and that the staff was proceeding with the investigation improperly. Respondents also claimed that as the so-called targets of this investigation, they were entitled to be notified of all subpoenas issued to people other than themselves during the course of the investigation. The District Court denied all of this relief. The Court held that respondents had available to them an adequate remedy of law for challenging the propriety of the Commission's investigation as it was directed to them, simply by defending against any proceedings that might be brought against them. And the District Court also declined to fashion what it called the novel remedy of requiring that the Commission give notice to targets whenever it issues a subpoena to a third party. The District Court held in this regard that respondent had no legally cognizable interest in preventing compliance with subpoenas issued to anyone other than themselves. And the Court of Appeals affirmed the denial of injunctive relief, challenging the SEC's actions directed at respondents. But, as I mentioned a moment ago, the Court of Appeals reversed as to the so-called third party notice issue. The essence of the Court of Appeal's reasoning seems to be the following two sentences from its opinion, which are reprinted at page 7a cf the Appendix to the Government's petition, the last two sentences in the first paragraph on page 7a, the Ninth Circuit said, and I quote: "While respondents lack any right to maintain confidentiality of information held by third parties, they do have the right to be investigated consistently with the Powell standards. " Here, the Court of Appeals is referring to this Court's decision in United States v. Powell, which simply concerned what an administrative agency must show in order to get judicial enforcement of its subpoenas. The Court then goes on to says: "To assure that the target has the opportunity to assert this right. " this so-called right to be investigated consistently with the Powell standards, "notice of third party subpoenas is necessary. " The Ninth Circuit therefore ordered the Commission to notify the targets of its investigation, a term it did not define, whenever the Commission issues a subpoena to a third party. And this is all apparently so that the target can bring some sort of legal proceedings, to assure that the subpoena to the third party complies with the Powell standards. Now, one of the problems one has in analzying the Court of Appeals' decision in this case is that it is not at all clear from the Court's short and somewhat cryptic opinion, exactly what source of legal authority the Court of Appeals thought it was relying on in imposing this unprecedented notice requirement. It seems tolerably clear that the Court of Appeals was not relying on any provision of the Constitution, and respondents seem to concede as much. I think this Court's decision in cases such as Hannah v. Larche and Fisher v. United States, United States v. Miller, leave little doubt that the Fourth and Fifth Amendments don't give anyone a protectable interest in records held by third parties, don't give anyone the right or the opportunity to challenge the validity of subpoenas for records held by third parties. It also seems fairly clear from the Court of Appeals' opinion that it wasn't relying on any expressed provisions of the securities laws, because the statutes that govern the SEC's issuance of subpoenas don't contain any requirement that the Commission notify so-called targets of its investigations each time it issues a subpoena to a third party. The fact is, I hope to discuss in a few moments, when Congress has wanted to require the Commission to give notice of its subpoenas to someone other than a subpoena recipient, it has said so expressly in carefully crafted legislation. But there is no legislation that requires that the Commission notify so-called targets when it issues subpoenas to third parties. And the Ninth Circuit's sole reason for imposing this novel third party notice requirement is apparently based on its construction of this Court's decision in United States against Powell. As I noted a moment ago, in reading from a portion of the Ninth Circuit's decision, the Ninth Circuit seems to have understood Powell as creating a right in so-called targets of an agency's investigation to be investigated consistently with the Powell standards. And to the extent that we can understand the Ninth Circuit's reasoning, it seems to have concluded that notices to third parties is essential to protect this so-called right to be investigated consistently with the Powell standards, and this is so because in the Court of Appeals' view, apparently, third party recipients of subpoenas who are not targets of an agency's investigation would not have standing to suggest that the subpoena somehow failed to satisfy the Powell standards. Now, there are a number of obvious flaws in the Court of Appeals analysis. The principal problem, of course, is that Powell has absolutely nothing at all to do with how administrative agencies go about conducting their investigations. Powell singly holds that if an agency can't get voluntary compliance with a request for information, it has to make certain showings in order to get judicial enforcement of its subpoenas. The purpose of this rule, as the Court noted in Powell, is to protect the enforcement court's own processes, not to superintend investigations conducted by agencies. And, contrary to the Court of Appeals' somewhat puzzling assumption, which I think to some extent underlies its whole notice requirement, it's quite clear that the recipient of an administrative subpoena would have standing to insist on compliance with the Powell standards, whether or not the recipient of the subpoena was a target. In fact, this Court's decision in LaSalle National Bank, a few years ago, was a case in which a recipient of a subpoena raised so-called Powell claims. The target wasn't even a party to that judicial enforcement proceeding. But Powell only concerns the rights of subpoena recipients. The decision says nothing at all about the rights of third parties, much less anything about requiring that third parties be given notice... rather, targets be given notice when subpoenas are issued to third parties. And in this respect, the Court of Appeals' reading of Powell seems quite inconsistent with this Court's subsequent decisions in Mueller and Donaldson, because Mueller and Donaldson, in fact, unlike Powell, did involve third party subpoenas and the rights of third parties, and this Court held in both cases that the target of an investigation has not legally cognizable interest in questioning whether a subpoena issued to someone else should be judicially enforced. Speaker: Mr. Geller, are there any circumstances, in your view, in which the target of an investigation, assuming he had knowledge of it, could intervene in a subpoena enforcement action brought against a third party recipient? Kenneth Steven Geller: Assuming the target had notice of it, he could-- Speaker: Yes, yes. Kenneth Steven Geller: --Assuming the target had notice, under this Court's decision in Donaldson, he would have the opportunity to seek permissive intervention, and I think that Donaldson makes it quite clear that the standards of Rule 24b are to apply, the normal equitable standards of determining whether permissive intervention should be granted. But Donaldson makes quite clear that a target, under no circumstances, would have a right of intervention under Rule 24a of the Federal Rules of Civil Procedure. That was precisely, in fact, the argument that this Court rejected in Donaldson. In fact, the decision of the Ninth Circuit in this case seems flatly inconsistent with Donaldson, because in Donaldson... Donaldson, as the Court will recall, was the target of an IRS investigation, and he sought to intervene in a then-pending judicial enforcement proceeding. But the Court noted that Donaldson had no interest in the materials that were subpoenaed, other than to try to prevent the agency from getting ahold of them so that they might not be used against him. This Court held that that interest was not even strong enough to allow Donaldson to have a right of intervention in pending enforcement proceedings. So it seems quite bizarre that that same interest, which is the only interest that respondents have in this case, is strong enough to entitle them to notice simply the issuance of subpoenas. We don't know of any circumstance in which potential permissive intervenors, which is all these respondents are, have a right to be given notice of the occurrence of an event... here, the issuance of a subpoena... that might or might not ultimately lead to judicial enforcement proceedings, in which they would, at most, have the opportunity to seek permissive intervention. In fact, Rule 24 of the Federal Rules of Civil Procedure doesn't even require that notice be given to someone who has an absolute right to intervene in a judicial proceeding, so it seems quite peculiar that only a potential permissive intervenor would have to be given... would have to be given notice. Speaker: Mr. Geller, the Powell case dealt with the Internal Revenue Code, and I know the Ninth Circuit assumed... I guess there are some lower court cases saying it applies to SEC investigations as well. Do you agree with that view? Kenneth Steven Geller: To the extent that Powell standard overlap Fourth Amendment standards set out in cases like Oklahoma Press, and to a large extent I think they do, then, of course, the SEC would have to make the same showing at a subpoena enforcement proceeding. There are, however, certain elements of the Powell test, such as the third element, that the IBS not already have the information in its possession, which I think were simply construction of the Internal Revenue Code, and those-- Speaker: It really purports to be mainly a construction of the statute, rather than-- Kenneth Steven Geller: --That's correct. And to that extent, to the extent it is simply a construction of the statute, it would not apply to other agencies. However, as I say, some of the elements of the Powell test, such as that the subpoena be issued for a legitimate purpose and that it be relevant, seek relevant information, are, I think, simply Fourth Amendment standards. And to that extent, of course, the SEC and other agencies would have to meet it as well. So, to sum up, there is no constitutional basis for the court of Appeals' decision, and it didn't purport to identify one. There is no statutory basis for the Court of Appeals' decision, and it didn't purport to identify one. The Court of Appeals' decision seems to be based on a plain misreading of the Powell case in two respects: (1) that Powell grants rights to so-called targets of an investigation, and (2) that recipients of a subpoena who are not targets would somehow not have standing to challenge the subpoena on Powell grounds. Both of those assumptions are plainly incorrect. And, finally, the relief awarded here, which is providing notice, seems plainly inconsistent with the decision in Donaldson, which held that targets of investigations don't even have a right of intervention in a pending judicial enforcement proceeding. That being so, it seems inconceivable that they could have a right to greater relief, which is notice, such as the Ninth Circuit ordered here. Now, I think it's important to emphasize that the issue presented in this case is of tremendous concern to the SEC and other administrative agencies, not simply because the Ninth Circuit's decision is wrong... which it is... and not simply because it would be tremendously quite burdensome administratively to try to apply this test. It's not clear what a target is; the SEC often investigates transactions rather than individuals, and it would be quite burdensome to try to figure out who has to get notice. But what really concerns the government is that the Court of Appeals' decision, the notice requirement, will severely impair the ability of the SEC and other agencies to conduct effective law enforcement investigations. And the reason for this are the reasons that this Court has consistently explained in upholding the need for secrecy in the Grand jury. If targets of a Commission's investigation had to be told at the very outset the names of the people who are being served with subpoenas by the SEC, then, of course, the target would have essentially a road map of the Commission's investigations. It would increase the target's opportunity to fabricate defenses or destroy evidence, intimidate witnesses, tailor testimony, perhaps secrete assets beyond the reach of the SEC or injured investors. And, in addition, many people, especially cooperative, confidential informants, might decline to cooperate with the SEC if they knew that their names would immediately have to be given over to the targets, to so-called targets of the investigation. And I should add that this is not a speculative or fanciful concern on the SEC's part. In the Wedbush case, which was a follow-up to this case in the Ninth Circuit, the District Court ordered the SEC to provide the targets of that investigation with the names of subpoena recipients. The SEC sought a stay from the Ninth Circuit and specifically argued... and this is on page 28a of the Appendix to the Government's Petition... specifically argued that some of the third party witnesses had requested confidentiality, and the disclosure of these witnesses to the target would impair the effectiveness of the investigation. Despite this, the Ninth Circuit summarily denied a stay in Wedbush and ordered the SEC to provide the so-called targets of that investigation, with the names of third party subpoena recipients. Finally, providing notice would tremendously increase the opportunities for delay in conducting an investigation, and would prejudice the privacy rights of people called to testify or produce evidence in the investigation. These consequences are important, we believe, because Congress could not possibly have intended them, at least without expressly saying so. And, as I pointed out earlier, there's no provision of the securities laws that requires this sort of notice, and in this regard, it's extremely significant that Congress has enacted legislation that does, in very limited circumstances, require the SEC and other agencies to give notice to certain types of people when subpoenas have been served on third parties. Section 21h of the Securities Exchange Act incorporates the Right to Financial Privacy Act, which was passed by Congress in 1978. And the Right to Financial Privacy Act creates a limited exception to this rule by providing that the SEC and other agencies have to give customers of banks notice when administrative agencies serve subpoenas on banks for the private records of these customers. Now, I think the enactment of Section 21h and the Right to Financial Privacy Act is very instructive, for two reasons. First, it shows that Congress clearly knows how to provide for a notice requirement when it wants to do so. And the debates on Section 21h in the Right to Financial Privacy Act leave no doubt that Congress thought, when it was enacting those statutes, that there was no sort of requirement in the law previous to that point, such as the Ninth Circuit seems to have discovered in this case. And secondly, I think the enactment of Section 21h is quite instructive, because when Congress did impose a notice requirement, it quickly surrounded that requirement with a number of protections designed to prevent the sort of harms that I was discussing a few moments ago. And, needless to say, th Ninth Circuit's ruling does not contain any of these protections, nor could it. We think what all of this shows is that the Ninth Circuit's ruling represents nothing more than that court's notion of what constitutes sound public policy, and even if th Court of Appeals were right in that judgment, and we doubt that it was, it was not a judgment that the Court of Appeals was entitled to make. There is no constitutional or statutory requirement that the SEC or other agencies give notice to the so-called targets of its investigations, and therefore the Court of Appeals had no power to order it. We think what this Court said only a few weeks ago, in the Arthur Young case, is extremely relevant here. There, the Court said, this kind of policy choice, restricting agency investigative power, is best left to the Legislative Branch. If there are no further questions, I'd like to reserve the balance of my time. Warren E. Burger: Mr. Symmes. William D. Symmes: Mr. Chief Justice, and may it please the Court. I'd like to divide my argument, with the Court's permission, into two parts. First, I would like to address the Ninth Circuit's opinion, why it's correct, why we believe it should be upheld, and secondly, respond to counsel's argument, in that order. This Court, back in 1964, handed down the Reisman decision. The Reisman decision essentially said four things. Firstly, it said that a target of any agency investigation has remedy for unlawful subpoenas of for agency subpoenas which have been issued in excess of or in abuse of statutory authority. That case specifically was not limited just to the recipient of agency process. the language of that case stated that not only may the recipient intervene, but also any party who is affected by the agency process. The Reisman decision went on to say that the remedy for this situation is the opportunity to intervene, the opportunity to intervene in the subpoena enforcement action that would occur in order to enforce the third party subpoenas. The Court went on... I think this is very important... to say in the Reisman case, that to preserve that remedy of intervention, the affected person may seek a restraining order to restrain the compliance of the third party witness with the outstanding subpoenas, pending hearing at the subpoena enforcement hearing. And the fourth thing... this is very important... the Reisman case said was that, at this subpoena enforcement hearing, the recipient or the target, the person affected by the outstanding subpoena, whether it be the target or the recipient, may challenge the subpoena or summons, the administrative summons or subpoena, on any appropriate ground, including for improper purpose or... I think the example they gave was violation of the attorney/client privilege. Eleven months later... and this is important to understand from the standpoint of how the Ninth Circuit reached its conclusion... eleven months later, 1964, this same Court handed down the decision in Powell. And in Powell, this Court elaborated on what it meant by the appropriate grounds for challenging an abusive or excessive outstanding subpoena or administrative summons. At that time, Powell listed at least four grounds. Now, the counsel arguing today for the SEC has conceded at least three of those grounds would be applicable to the Securities and Exchange Commission in the issuance of process. The first is, the subpoena must be issued for legitimate purpose. The second is that the information or document sought must be relevant to that purpose. And, lastly, that the agency, in the course of conducting its investigation and issuing its process, must be in compliance with its own rules. Now, this Court reasserted or reaffirmed its position taken in both Reisman and in Powell in the LaSalle case, which counsel mentioned in his opening statement. Now, at that point, the Ninth Circuit had before it both the Reisman and the Powell case. And what it concluded was this... I think the conclusion is well contained within both Reisman and Powell... that in order for a person affected by an outstanding abusive or excessive subpoena... that is to say, in order for a target to intervene, as Reisman said he could... granted, it's permissive; we don't say it's absolute... in order for such a target or affected person to not only intervene, to obtain a restraining order, and challenge the subpoena on appropriate grounds, that affected person or target must be aware of the outstanding process in which he has a protectable interest, if the subpoena seeks information that's not legitimate to the purpose of the investigation, or if it seeks information of documents which are not relevant to that purpose, or if in the conduct of investigation the agency is violating its own rules. Therefore, the Ninth Circuit concluded that in order for the target or affected person under Peisman and Powell to intervene, to challenge, to get a restraining order, in order to do this he must have notice. Therefore-- Speaker: Mr. Symmes, didn't Donaldson cut back on both Reisman and Powell? William D. Symmes: --Not my reading. I think Donaldson, Your Honor, clarified Reisman and Powell, clarified that intervention exists, not as a matter of right; it's a permissive intervention. But the fact that it's permissive intervention doesn't rule out, doesn't logically or, in my mind, persistently preclude the issuance of notice, particularly-- Speaker: How do you respond to the Solicitor General's point that if Donaldson said that limited permissive intervention was permissible, nothing more, after Kaplan and Powell, it's a fortiori that no notice is required. William D. Symmes: --First of all, Donaldson did not say that no notice was required. Neither Donaldson nor Reisman nor Powell ruled out notice. And the mere fact that a target or affected person under Donaldson is permissibly entitled to intervene by itself doesn't preclude notice. Speaker: No. But if... I think the Solicitor General's argument is that if Donaldson only went as far as it did in allowing permissive intervention, a requirement of notice on top of permitting intervention goes even further, and that Donaldson would have had to go further as to intervention before you'd even think about notice. William D. Symmes: Our answer would be simply this; that under Donaldson or Powell or Reisman, a target doesn't even have the opportunity to intervene, can't even exercise, if you'll forgive the phrase, permissive intervention unless he knows about the outstanding subpoenas, which is-- Speaker: What follows from that? William D. Symmes: --What follows from that is, particularly in this case, particularly how this case arose, you can see why notice is important, and what I would refer to is this. Speaker: Well, the fact that it's important doesn't mean it's required. That's a kind of house-that-Jack-built reasoning; that if one thing is good, surely another thing must be even better. But we don't generally decide cases that way. William D. Symmes: I understand that. What I'm saying is, Donaldson at least held there was permissive intervention. Permissive intervention as applied to targets in this case is a complete nullity. It's totally illusory, and I'll tell you what happened and why, and what the Ninth Circuit had in mind. When we were at the District Court level, the Court held that the targets, O'Brien and Magnuson, had an adequate remedy at law to challenge the subpoenas issued to them, Magnuson and O'Brien. The adequate remedy at law was found in Reisman. The adequate remedy consists of intervention and the opportunity to challenge on any recognized grounds, specifically the Powell grounds, those subpoenas. After the Court handed down its ruling, the SEC brought no subpoena enforcement action. Instead what happened is, many, many third party subpoenas were issued; that is to say, subpoenas issued to third parties seeking, in some cases, the very same information, in other cases, to the extent that it came to our light, other or additional information which we believe were not legitimate to the purpose of the investigation or relevant; and in the process of doing so, avoided the opportunity, prevented us, precluded us, preempted us from the opportunity that Reisman said that a target or affected person would have. And that is, the opportunity to intervene and obtain judicial scrutiny of the outstanding subpoenas. Speaker: Mr. Symmes, can I interrupt for just a second? William D. Symmes: Sure. Speaker: How could that really preclude you? Isn't it entirely possible... say that they served subpoenas on a broker... that you would have an understanding with the broker, if they subpoenaed your records, please let me know, and that the broker could tell you voluntarily, I suppose. William D. Symmes: First of all, in this case, there were... at least to our knowledge... over 60 third party subpoenas served. Speaker: Well, they might all call you up. I mean you might well do business only with people who are willing to give you notice if there's a subpoena like this served. Why isn't that an adequate protection for most third party relationships? William D. Symmes: The reason why it's not adequate protection... and I may be begging the question, if I understand your question... the reason why it's not adequate protection is because the third party doesn't have any incentive whatever to disclose to the target the fact that there's an outstanding subpoena-- Speaker: If he wants to retain your business, I don't suppose he's going to be too happy with his... too popular with his customers if he doesn't tell them about things like this. William D. Symmes: --But not all third parties are broker or dealers. Not all third parties are persons who are friendly to the target, and therefore would not have the incentive. Speaker: Well, those who are unfriendly might well respond to an inquiry without a subpoena. And you get no notice of that. William D. Symmes: I agree. If the SEC, in the course of conducting an informal investigation, chooses not to issue subpoenas, it can talk to whomever it wants and, presumably, about whatever it wants, even if that information they seek is beyond the scope of the formal order of investigation which is issued by the Commission to the staff and authorizes them to proceed. We may want to challenge that. That's not an issue before this Court, and there's no practical way to monitor that. What the Congress has done, however... and I think this is a point that may be lost on this argument, at least so far... Congress has specifically placed the courts between the Securities and Exchange Commission in the course of issuing subpoenas and the enforcement of the same, by not allowing those subpoenas to be self-enforcing or self-executing, and as a result, has put the courts squarely in the middle. And what we're asking that this Court do is to affirm the Court of Appeals to the extent that they held that a logical extension of Reisman is to provide the notice necessary to allow us to intervene. Speaker: The notice is to give them the names of the people that they're doing business with. William D. Symmes: Notice is to give them the names and identities and information sought as to all-- Speaker: The names of the people they're doing business with. William D. Symmes: --That would be true only in part, Justice Marshall. That would be true only in part. Speaker: My question was, don't they have that information? Don't they know who they're doing business with? Sir? William D. Symmes: A target knows... a target knows who he is doing business with, yes. Speaker: And he knows that the SEC is investigating him. William D. Symmes: He knows the SEC is investigating him. However, what he doesn't know is the subpoenas and summonses that are issued to third parties who are not business associates of the target. Speaker: And how much time would that take away from the investigation, to try out each one with the targets? You say you've got 60, this one. How much time would that take? William D. Symmes: First of all, if all the subpoenas were lawfully issued, it would take no time. Secondly, mechanically-- Speaker: Well, if you start with that conclusion, you don't have any problem. William D. Symmes: --That's correct. But secondly, the presumption is that if notice could be issued to the target at the same time as the outstanding subpoena is issued as to notice form, or in this case, a copy of the subpoena... that's all that would be required, is a copy of the subpoena to be furnished to the target at the time that the original subpoena is issued. Speaker: Is that done in any other agency of government? William D. Symmes: Is that done in any other agency? Speaker: Yes. William D. Symmes: The argument is that it ought to be done by any agency and every agency who is similarly positioned. Speaker: My question was a very simple one. The answer is no, isn't it? William D. Symmes: The answer is, the Securities and Exchange Commission, you are correct, has not given notice for the last 30, 40, 50 years of its existence. That is correct. But that doesn't indicate that notice should not be given. The mere fact that an agency historically has not given notice as a matter of its own practice or custom would not preclude this Court from requiring notice. In order to-- Speaker: What other federal agency in government gives the type of notice that you want? William D. Symmes: --Pardon me? Speaker: What other agency in the United States Government gives the type of information that you want? William D. Symmes: I'm not aware of any other governmental agency that would give the type of information that the Ninth Circuit said must be given. Speaker: May I ask one other question? Mr. Geller's opening argument was that... what's the source of this rule of law that the Ninth Circuit has announced? What is your view of this argument? William D. Symmes: We agree that there is no constitutional basis for the argument, certainly none that's been made here. I can see where there might arguably be a Fifth Amendment due process argument. It wasn't made to the trial court, it wasn't made to the Court of Appeals, and we haven't made it here. There is no specific statutory basis for the notice requirement. The Ninth Circuit Court of Appeals found that notice should be given as part of its reading of the decision in Reisman and as part of its-- Speaker: Of course, that was a construction of one of the tax provisions of the Internal Revenue Code. So in the sense that it relies on statute, that case really doesn't give it any help at all. I mean maybe the same rule should apply... I'm not suggesting that. William D. Symmes: --Except to the extent that lower courts have historically applied, as the Solicitor General has just mentioned, the courts have historically applied the decisions like Reisman and Powell and Donaldson, applying to the IRS... they have traditionally applied those to the Securities and Exchange Commission. As a matter of fact. I think the Commission has agreed on several occasions in lower courts, specifically in that Pittsburgh Steel case. Speaker: Well, wouldn't we be accused of legislating? William D. Symmes: Pardon me? Speaker: When we don't have any constitutional backing or any legislative backing, wouldn't we be accused of legislating? William D. Symmes: It is the opinion of the Respondents here, and it was the opinion of the Ninth Circuit when that same argument was made to the Ninth Circuit by the Securities and Exchange Commission, that no, this Court would not be accused or guilty, if I can use those terms, of legislating or going beyond its province as a court. The reason for that, simply, is that there already exist statutes in both the '33 Act, in the Exchange Act of '34, requiring the courts to get involved with outstanding subpoenas issued by the Securities and Exchange Commission, or by their staff more properly, in the event that a target or a recipient, being a non-target, voluntarily refrains from complying. And under those circumstances, this would be simply a logical extension of that statute. Now, counsel has indicated in the course of his argument a number of things which I would like to respond to. First of all is... and perhaps this is an extension of the question which Justice Marshall has posed to me earlier... first of all, the question is why are we entitled to notice in this case, and specifically, why isn't it that the target isn't already aware and won't be made aware from his business associates of the fact that there is an outstanding subpoena? I can think of one reason that I wrote down in response to counsel's argument that perhaps I should have mentioned in response to Justice Marshall's argument, and that is this. Many times, the target isn't even aware, as was true in this case, that a formal order of investigation had been issued and that the Securities and Exchange Commission was investigating the target. The second thing, I think, that I would like to mention is that... respond to... and that is, notice would result in impediment or in delay in the normal investigative process which the Securities and Exchange Commission are following. I would respond by saying several things. First of all, delay to the extent you may call that... and I would put it in quotes... a certain lapse of time is already built in the statutes to the extent that if someone doesn't comply voluntarily with an outstanding subpoena, the Commission must then in turn bring a subpoena enforcement action to the extent that there is delay. Secondly, the decision in Reisman involved or envisioned some delay. I think the proper term would be "lapse of time" in the proper case where an affected person would move to intervene. Next, with respect to the abuse issue, I think that the courts are well-situated... we argued this in our brief, and I won't be redundant here... the courts are well-situated, I think, to handle abuse through protective orders that would also handle the privacy issue, through contempt citations, through certain types of restraints imposed by the court in any specific case. I think the next issue that I'd like to respond to is something that was mentioned in the brief, not mentioned in oral argument by the Solicitor General. And that is that Donaldson somehow created a civil right to suppress evidence, information, or documents wrongly obtained through abusive or excessive subpoenas at the time that the Commission choose or seek to choose to enforce the case against the target. And I would just simply suggest that I don't see that. Donaldson doesn't say that. Donaldson concerned itself with a criminal case. The Commission argues that as an alternative to the granting of notice. Now, the next thing I'd like to point out is this. In the brief of O'Brien... and i think it was also alluded to, to some extent, in the Wedbush brief which was filed as an amicus brief with the permission of this Court... it is argued, and we would suggest it eminently to the Court, that although the Ninth Circuit case basically held that notice should be given in all cases, there is a lesser position that this Court could take and still grant the relief which the Respondents now seek and continue to seek, and that is, that notice is not something you are entitled to in all cases, but notice is something that a target would be entitled to after having made a showing of some evidence that there are subpoenas being issued to third parties, that there are outstanding subpoenas that we're not aware of, and that in turn some showing can be made that these subpoenas do not meet or exceed Powell standards to the extent, as in this case, our argument basically is, and we believe we've made that showing below... certainly we've alleged it and those pleadings are deemed true before this Court, and that is this: that in the case of the legitimate purpose requirement of Powell, we believe we have and can make a showing that the legitimate purposes behind these subpoenas are not present. At lease there's no-- Speaker: Mr. Symmes, that would just add another tier of judicial proceeding, wouldn't it? William D. Symmes: --But it's already present. That tier of judicial proceeding is already present right now, built into the statutes by Congress, both in the '33 Act and in the '34 Act. We are entitled as a target, presuming we know of the formal order investigation, which is one big assumption that I should have mentioned to Justice Marshall, that you cannot make. See, the Commission is not required by its rules to give a copy of the formal order of investigation authorizing subpoenas to the target. There are subpoenas outstanding many times before the target is not only aware of the subpoenas... not aware of the subpoenas, but is not aware of the order. Speaker: I thought you were talking about a separate proceeding whereby your client could go into court and make a showing and get the court to order that it be given notice. Now, I take it that wouldn't be the substitute for the proceeding at which, after receiving notice, you might seek to intervene in the action. So don't you agree that would be a separate judicial proceeding? William D. Symmes: It would be a separate judicial proceeding before the same court on the issue of notice alone, which as the Ninth Circuit mentioned, could be handled summarily by affidavits, not any necessary presence there by counsel, no live testimony. Speaker: But would it be ex parte? William D. Symmes: It would not be ex parte. Speaker: Well, what if the affidavits disagreed? Then you'd have testimony? William D. Symmes: Well, Im not sure that we would have testimony. Speaker: Well, how would the District Court resolve a disagreement if affidavit-- William D. Symmes: The Ninth Circuit envisioned when it made this requirement of notice, the Ninth Circuit envisioned that it would be handled by affidavits, that if there were a controversy amongst the affidavits, that there could be argument. But at no time was it envisioned that there would be an evidentiary hearing. As a matter of fact, the lower courts now are following the practice of not awarding or allowing evidentiary hearings unless some substantial showing is made that there is violation of Powell standards. Speaker: --How does a District Court resolve situation where both party opponents submit affidavits that directly contradict one another? You say they are doing it without any testimony. Now do they resolve those questions? William D. Symmes: They do it based on the affidavits. Speaker: Well, which affidavit. William D. Symmes: The affidavit submitted by the targe on the one hand, and the affidavit submitted by the Commission on the other hand. Speaker: But what if those affidavits disagree? William D. Symmes: What if they disagree? Then there's argument held. In order for-- Speaker: Do you argue before the District Court... the lawyers argue as to which affiance should be believed? That's a rather unusual proceeding. William D. Symmes: --The court can order an evidentiary hearing to be held if, based on the affidavits filed by the target who is moving for notice, if there is a substantial showing or at least some substantial evidence showing those affidavits that there is a violation by the SEC of the Powell standards which govern the protectable interests of the target in having investigation concerning him being conducted lawfully. If there is some showing made, at that point the District Court could order... and they have in the past ordered evidentiary hearings... limited, short, evidentiary hearings. Speaker: Mr. Symmes? William D. Symmes: Yes. Speaker: The Powell standards are not particularly onerous, the need to prove relevance to the investigation and the other requirements. And I assume that the recipients of the subpoenas can assert meeting the Powell standards, can they not? What tremendous advantage is to be gained by making this rather remarkable extension of the statute to protect the target? William D. Symmes: First of all, the recipients don't have the incentive to challenge an excessive subpoena. For example, if the subpoena is served on the recipient, and the recipient happens to be a broker-dealer who is regulated by the Securities and Exchange Commission and whose livelihood depends on the Commission and their compliance with Commission requests, the broker-dealer has really no incentive or interest in raising the Powell standards. Secondly, the broker-dealer or the person who receives the subpoena doesn't usually have a copy of the formal order of investigation which defines the scope of the investigation, or if they do, they're not in a position and don't usually have the time or would take the time, and have no incentive to take the time to review the subpoenas and compare them to the formal order investigation to determine whether or not the staff is conducting the investigation through issuance of process within or without the authority granted it by the Commission itself, which is done through the medium of the formal order. And for at least those two reasons, the Powell standards cannot be and will not, as a practical matter, ever be met if we leave it to the recipient. Speaker: Well, they certainly can be met. Your argument is basically that they're not likely to be urged upon the court by the recipient. William D. Symmes: They're not likely to be urged on the court, and as a practical matter, most people who are the recipients of such subpoenas are not in a position to do so. The subpoena itself, the form itself, is so strong... fail not at your peril, you must do this... subject to fines... I realize the courts haven't imposed that... but the subpoena is so strong and so demanding and so official that even if a recipient might be inclined to do so, he has no incentive whatever based on the subpoena alone. So for those reasons, we believe that the Powell standards could only be met a target having the opportunity to intervene, and only by intervention can he assert those rights, and he needs notice in order to intervene. And that's our position. And I think that what we must not forget is that the Supreme Court in Reisman said that a target, one affected by a subpoena, has a protectable interest in not having information or documents disclosed or revealed by a third party in response to a subpoena that's not lawful or issued in excess or abuse of statutory authority, or thus in violation of the Powell standards. And if Reisman is correct, and if we do have protectable interest, then as a target we ought to be able to intervene, and we need notice to intervene... because, as I pointed out in this case, there were subpoenas outstanding and being responded to by third parties before Magnuson and O'Brien were ever even aware, were ever even aware that there was a formal order investigation or any investigation of any kind pending against them. Thank you. Warren E. Burger: Do you have anything further? Kenneth Steven Geller: No, Mr. Chief Justice, unless the Court has some questions. Warren E. Burger: Thank you, gentlemen. The case is submitted. We'll hear argument next in Spaziano against Florida.

David Carliner: Solicitor General made for the first time in this Court. It had been the position consistently of Immigration and Naturalization service that there was no power in the hands of the Attorney General to withhold the deportation of an alien to a country in which he would be physically prosecuted because he had no statutory power for it. Today in this Court, he concedes that he can keep an alien in the United States and whether he's physically in the United States, I put to decide for the moment, but he concedes that he does have the power to say it excluded aliens from deportation. He says that he has it under the provisions of Section 212 (d) (5) of the statute, namely the parole provisions of the statute. In his brief, he also calls attention to the fact that he may have it but he does not specifically and explicitly say he has it, but on page 26 at the footnote to the petitioner's brief, the Solicitor General refers to Section 237 of the Immigration and Nationality Act which gives to the Attorney General the power to say the deportation of an excluded alien where it is practicable or proper. And as a matter of fact, the Attorney General has drafted regulations which give the District Directors of Immigration and Naturalization service that authority. So actually, this is not an enormous case at all at this point. All it is as a -- as a determination of what technical basis the Attorney General must seek out in order to justify withholding deportation of an excluded alien to a country in which he shall be physically persecuted. That of course is nevertheless an important question, but we believe that it takes a great deal of the problem which Mr. Justice Frankfurter particularly has been concerned with out of this case if the Attorney General has the power. I suggest to even further -- Felix Frankfurter: Why does he take it out of the case even narrow -- he'd be strongly tempted not to have his hands tied? David Carliner: Your Honor, I think that the fact that the -- that the Government's attorney has indicated that his policies may change if this Court renders a decision in favor of the petition -- petitioner. It's an impermissible argument that he may make it but it's an impermissible consideration for the Court that hold the kind of (Inaudible) sword over the Court. Felix Frankfurter: I thought the -- I thought one of the most important consideration in construing a statute is to contemplate the consequences, a one construction rather than another. David Carliner: I think Your Honor is absolutely correct. I believe that it maybe helpful to Your Honor if Your Honor will recall the argument that was made to this Court in the case of Tom Lee Shang which the counsel for the Government adverted to. There, it was said that habeas corpus was the only remedy which an excluded alien could have enough declaratory judgment and if this Court decided adversely to the Government and granted the alien declaratory judgment as a remedy, it would have the effect of keeping all excluded aliens in detention at the threshold of United States that none of them would be released to -- in the bounds of this country, because if they were released within the bounds of this country, they would have a privilege which they did not previously have, namely the right to bring a declaratory judgment action. That argument did not deter this Court as I recall as unanimous opinion of this Court. Felix Frankfurter: It certainly was not. David Carliner: I beg your pardon sir. It did not deter to the majority of this Court from holding a declaratory judgment action was available to an excluded alien. Felix Frankfurter: The question is deterrent. This isn't a question of deterrent. It's a question of relevance of argument and an argument maybe irrelevant or tenures in one situation and power from another. David Carliner: Well, I suggest with humility, Your Honor that it is an irrelevant argument because I suspect that no one will believe that the Attorney General will refuse to parole aliens into the United States merely because the possibility may arise that that alien, in some time in the future, may request to stay of deportation to a particular country upon the ground that if he is deported to that country, he will be subject to physical persecution. Felix Frankfurter: Not if you state it? David Carliner: Sir? Felix Frankfurter: Not as you stated in an individual case, but general tendency, general occurrence of it, legislation, general occurrence that's brought on their heels of the most powerful considerations in the conduct of cabinet officers and another. David Carliner: Well, it maybe Your Honor and it maybe that if this Court feels that the -- a -- a speculation as to the future conduct of the Attorney General is a relevant consideration, all that I can do is to submit for our part that it is speculative as to what the Attorney General looked to and that at -- for our part, I suggest respectfully, that it does imply a proper consideration in the case. Well, I believe that the matter can be disposed of upon much narrower grounds. The most fundamental problem it seems to be with which the Court is concerned is the thrust which a determination that these aliens are within the United States for the purpose of the 243 (h) would have upon the historic and well settled distinctions between exclusion and deportation and upon the reading of an opinion based on that concept and upon granting the petitioner's -- upon granting the respondents upholding the decision below on the impact it may have upon historic decisions of the Ekiu decision and Ju Toy. I believe that the suggestion that was made earlier in argument that the phrase in the United States with which we are concerned with here has been one which has been finally decided and actually decided by Courts in previous decision is an erroneous one. As Mr. Justice Douglas indicated as regard to Kaplan against Tod, the specific question, two questions there were these, one, whether a person was dwelling in the United States so as to become a naturalized citizen. Well, we do not contend that these petitioners here or I mean these respondents here are dwelling within the United States. All they need to be for the purpose of this statute is in the United States. Now, the second question in Kaplan against Tod was whether they were -- and Mr. Sand pointed this out to the Court was whether they were found within United States in the violation of the immigrant authority. That is verbatim from the Kaplan against Tod decision, and also whether they had entered the United States in violation of the immigrant authorities. Well, no contention is made here that these aliens have entered the United States. This Court has the problem of entry now before in the Bonetti case and I can see that the word entry is a word of art which must be construed within the meaning of the Immigration and Nationality Act, indeed it is defined in the definition section of the Act. We do not contend that these aliens have entered in the United States. We don't contend either that they have been found in the United States in violation of the immigrant authorities. As a matter of fact, they had been permitted to come into the United States with the expressed consent of the immigrant authorities. So, whatever Kaplan v. Tod may hold, it does not -- it does not determine a statutory construction, a definition, an interpretation of the phrase in this statute in the United States. Now, we have to be concerned with the earlier decisions, Ekiu, Ju Toy and other later decisions let's say among others. Now, those questions Your Honor I believe are far more difficult, but they too are distinguishable from the ones here. In the Ekiu case, the Court specifically held that an alien who had been removed from his vessel, but who was detained at a mission house had not landed in the United States. And it was upon the basis of the immigration statute in effect in 1892 that such removal shall not constitute a landing that the Court held that the fact that the alien geographically was in a mission house in the State of Washington, Oregon did not placed her within the United States for the purposes of the Due Process Clause. Now, that latter clause raises another -- creates another problem. I'm of course conscious to the fact that the Court is going to avoid constitutional considerations. There are no constitutional considerations here. It maybe one thing to hold that an alien is in the United States when he/she has been excluded for the purposes of the Due Process Clause, but it's quite another thing to say that she is in the United States for the purposes of a very specific statute. Only yesterday, this Court held in Perez against -- the United States against Perez that in construing a question of venue, whether a seaman who had been amended in the United States, but not admitted to the United States, that distinction is important that an alien who had been -- a seaman who had been landed in the United States could be prosecuted in any district where he had remained in this country. The Court said the word remains permits no connotation other than continuing presence. I suggest Your Honors that the word in the United States for the purposes of our argument, permits no connotation other than being in the United States that the distinction which the Government itself has recognized innumerably -- innumerable times. The case of Ju Singh for example which was before this Court once and was vacated because of mootness. It was made moot because that alien and this is an anomalous situation, which I think the Court should recall, who had been excluded from the United States, as an alien who could not be permitted to be admitted to this country was paroled into the United States for the specific purpose of being naturalized as an American citizen and the case was mooted because being a United States citizen, he cannot be deported as an alien and certainly cannot be deported to China. The Congress of the United States only last fall, in Public Law 85-316 in various amendments of the Immigration and Nationality Act provided that aliens who are paroled into the United States for the purposes of under the provisions of Section 212 (d) (5) of the law could be adopted by courts of competent jurisdiction provided they were orphans. Now obviously, this Court is aware that in many States, you cannot be adopted as an orphan unless the Court has jurisdiction over the orphan himself and in order to have jurisdiction over the orphan himself, you must have a residence in the State of that Court's jurisdiction. So, the Congress of the United States has recognized that persons who had been paroled into the United States may be physically in the United States. So I believe that the question is that narrow whether that naked narrow phrase in the United States in the -- this particular statute gives the alien presence in this country for the sole purpose of being saved from deportation, not to any country. He could be deported to Hong Kong we believe. He could be deported to Formosa. He could be deported to any other country in the world which would take him, but he could not be deported to a country in which he will be subject to physical persecution. I believe that the Court approaches the issue in that light. It can avoid the difficult problems which the Ekiu case and all the other decisions of this Court relating to the historic distinction between exclusion and deportation, it can avoid those problems and there's no reason, I believe, that before this case with those questions. Now, the second issue -- Felix Frankfurter: Was that -- was your arguments extend to applying the statue to people in detention centers? David Carliner: Well reluctantly, I must say Your Honor that we have a distinction between people who are in detention centers. If the Court is going to say that people who are in detention centers or in the United States, I believe would have to disavow or distinguish language which appeared certainly recently in the Mitzi case, because the Court has held and more than that, the statute itself has held, provides that persons who have been removed from their ships and who are confined to detention centers shall not be considered to have landed in the United States and I would have to concede that a person who has not landed in the United States under the historic decisions of this Court is not within the United States. As to our case, we do not have that situation. These aliens are not in detention centers. They have been paroled into the United States and I should note in passing that they have not been paroled merely to the City of New York or to San Francisco but they live wherever they will in the country. There is no requirement upon them as to where they shall live, only that they shall give notice as to where they move. Felix Frankfurter: I must say that if we're going to sit here as party under the tree and does follow my own strong feeling, that strong feeling that goes to the root as much of this strictly. If I follow those feelings, I wouldn't be very comfortable to say that a fellow who is paroled is within the merciful statute, but the people in the detention aren't because of that what you call as those supple distinction. You -- if we are to discard all, the whole pushing momentum of immigration laws in construction not for discarding it, not making these distinctions. David Carliner: Well, I couldn't agree more with Your Honor and as a matter of fact, Mr. Justice Clark, I noticed, observed in his footnote in the (Inaudible) case that the Ekiu decision should put it that strongly, but that the distinctions between deportation and exclusion are not as strong as they were when the Ekiu case was decided in 1892 and if Mr. Justice Frankfurter appeals and held to the start -- to discard those distinctions -- Felix Frankfurter: I wouldn't dream of discarding because I have a limited function and Congress has another function. David Carliner: Also -- Felix Frankfurter: The fact that I don't like statutes and I don't like constructions by the Attorney General and I don't like actions by many branch of the Government doesn't set me above this. David Carliner: Well, there is respectable authority at the time of those original decisions. There were strong dissenting opinions which indicated -- Felix Frankfurter: Well, I know about dissenting opinions are not the decisions of this Court. David Carliner: In any event, for purposes of our particular case, an alien who is in detention is -- is not -- we're not concerned with him. This alien has -- Felix Frankfurter: Well you -- but you must be concerned if you ask this Court to construe a statute and to see its implications and to see what kind of harming there is or isn't with the past. You can't pick and choose and ask this Court to construe the statute just to take care of your own particular case. I do not call that law making. David Carliner: Well, I ask this Court only to look at the statute in question. Now, the statute in question at Section 233 provides that an alien who has been removed from his vessel upon which he arrived in the United States and is in detention at this port of entry cannot be considered to have landed in the United States. This Court has consistently upheld that kind of statute against the challenge that it violated in certain instances, due process rights which persons have in this country. Now, the Court wishes to adhere to that and I'm not asking today that the Court overrule that distinction. But if the Court wishes to adhere to that, it does not affect the aliens in this case. It does not affect Jimmy Kuan or the other aliens because they are not in detention. The Attorney General has specifically paroled him into the United States. Now, I come to another question, to the same question, but to another aspect of it in order to establish that what the Government contends is not matched by its proof. The Government says in Section 212 (d) (5) and it said this I believe in (Inaudible), “It does not change his status in the United States.” All that Section 212 (d) (5) says, if it please the Court, is that such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole have in the opinion of the Attorney General been served, the alien shall forthwith return or be returned from the custody from which he has -- was paroled, and thereafter, his case shall be continued to be dealt with in the same manner as that of any other applicant for admission. The significant word in that clause is admission to the United States. Now, the Government has not discussed that at all, either in its brief or in its oral argument. Admission is a -- is a precise word of art in the statute because it is defined both in the definitions that at Section 211 of the statute, the immigration law provides specifically no immigrant shall be admitted into the United States unless at the time of his applications for admission, he possesses certain requisites, a valid, unexpired immigration visa and various other things. All the 212 (d) (5) therefore says is that an alien who has been paroled in has not been admitted to the United States. It in no sense provides that an alien who has been paroled into this country is not in this -- in this United States. Further in this, I believe it's significant to point out that the Government recounts the legislative history and what it asks for in obtaining the -- the enactment of the Immigration and Nationality Act. What it asked for and it's set forth in its reply brief and it said -- is that general power to parole shall be granted apart from the emergent medical reasons but for any reasons in the public interest or any emergent reasons. And it provided that whenever the Attorney General into his discretion concludes the deportation of any alien paroled under this subsection is practicable or proper, that the alien shall be immediately taken into custody under the outstanding order of exclusion and deportation and shall be deported without further hearing in the same manner as other aliens who were excluded from the United States. Now, that is not at all what Congress enacted. It not only did not enact this in Section 237, but at Section 212 (d) (5), they changed what it had originally. And its original version at Senate Bill 716, it provided that after parole had been revoked that the alien shall be deported in the same manner as other aliens who were excluded from the United States. What it provided for was that they shall continue to be dealt with in the same manner as any other applicant for admission to the United States. Now there again, that clause is not equivalent to the statement that his status shall be considered as one who is a -- as an excluded alien who shall be deported in the United States immediately without a hearing. I believe that is significant because the crux of our argument is that -- the crux of the Government's argument adversely is this, the Government says that Section 237 is exclusive as to excluded alien that no other provisions of the statute cover excluded aliens, that Section 243 is exclusive in dealing with aliens who are expelled from the United States. We say this cannot be so. We say it cannot be so first because 237 provides only for the deportation of aliens under this Act and it is conceded that the aliens here are not deported under this Act. Secondly, we say that it provides only for the deportation of the aliens who are deported immediately. Now, we don't know how the word "immediately" shall be defined, but we do know that the significance of the word -- we believe that the significance of the word immediate is that when deportation is immediate, the alien can be returned on the ship once he arrive and to the country once he came. Now obviously, if an alien is deported as in this case, six years later, he cannot be deported on the ship once he arrived, nor can he very often and if we are to in construe the statutes to cover all situations, very often he cannot be deported to the country once he came. I'll discuss for a moment the country of Hong Kong, not the country, but the British Crown Colony of Hong Kong. I believe this Court can take judicial notice of the fact that there are some 400,000 Chinese in Hong Kong who don't have permanent residence there. They're living on roof tops. They're living in sewers. It's been a problem which has been concerning United Nations for some years now. It has and it has happened. The Government has indicated its annual reports that they couldn't get travel documents to return Chinese to Hong Kong because the city is just over crowded with refugees. And it's for that reason that Hong Kong is willing only to give transit visas so that aliens can be returned to China. They do not want anymore aliens in Hong Kong, whether they're excluded aliens from the United States or whether they are deported aliens from the United States. The Court can take judicial notice of the fact as to Kaplan against Tod that when the little girl Kaplan came here, she came here from Tsarist, Russia. Presumably, she could be -- or Poland. She could return to that country. But eight years later when the Government sought to return her, Tsarist, Russia had become Bolshevik, Russia who will not receive aliens. Poland perhaps might have received them, but the political status of the country's changed. In the Mitzi case with which this Court has a -- I'm sure a deep recollection. Mitzi was an alien who was excluded from this -- from the United States, who came to this country from France. France wouldn't take him. Well, the Government as it -- as it appears from opinion of this Court sought to return him not only to France which wouldn't take him, but they tried to get Hungary to take him back on a theory that he was a citizen of Hungary. They tried to get Great Britain where he had not lived ever, except in Gibraltar where he claimed to have been born. They tried to get Great Britain to take him back on the theory that he was a national of Great Britain. In this very case, or in Leng Ma May, they have sought to get China to take him back even though it appears on this record that the aliens have come from Hong Kong. So, it is clear that the problems that the Government has been confronted with in -- in connection with deporting excluded aliens and expellable aliens do not relate only to aliens who are residents of the United States and who are being expelled from the United States under an expulsion process, but they are concerned just as much with excluded aliens who may be stuck at Ellis Island or maybe stuck in the ports of entry in San Francisco or other places of the country who may have to stay here as Mitzi did for three or four years until finally, the Government in its grace decided to let him into this country. Now, after the decision of this Court, so the specific legislative problems, the specific policy considerations that the Government has talked about relates just as much to excluded aliens as they do it to expellable aliens. And that, we submit if it pleases the Court is the reason that in 1950, the -- the Congress of the United States expanded the range of countries. Now, there is nothing in the Government's recount of the legislative history which indicates that it shall not go -- be applied to excluded aliens. I say that because of this, the first part of the 1950 Act, the Hobbs Bill was designed to tighten up controls over deported -- deportable subversives in the United States who are residents of this country. While that Act was under consideration, it was -- in answer to Mr. Justice Black's question. It was Senator Frank P. Graham of North Carolina who proposed in committee the provision with regard to physical persecution. There is no suggestion in those committee hearings and unfortunately, they have not been printed, but there was no suggestion in those committee hearings that it applied only to expellable aliens rather than to excluded aliens. But it was after this Bill which relate it true enough to aliens resident of the United States that the Bill was amended to provide that no alien shall be deported -- who is deportable under this chapter shall be deported to a country in which he will be subject to physical persecution. Well this chapter, as the Court of Appeals in this Circuit held in the Chong case, included both the excluded aliens and aliens who are being expelled. So, it was clear that the original law could be held and was held by the District of Columbia Circuit in the decision which the Government did not ask to have reviewed by this Court, applied both to excluded aliens and to aliens being expelled. Felix Frankfurter: May I go back to your reference to the legislative history. You said something about a bill, the original bill that Senator Graham termed as book of resident aliens, where is that from? David Carliner: No, Your Honor. He did not speak of resident aliens. Felix Frankfurter: You -- you used that phrase. David Carliner: The Bill and the Government has discussed it at long length on page 16 and 17 of its brief. It refers to aliens unlawfully in the United States. Felix Frankfurter: I'm not talking about that. Didn't you use the word resident aliens? David Carliner: Yes, that the first -- that the Hobbs Bill was -- was devoted to the main portions of it. The substance of it was devoted to tightening up supervision of aliens who were in the United States subject to expulsion process, required that they shall at the writ to which the decision overruled said that they should give reports as to where they are in the United States in the newspapers they read and so on. That was the original purpose of the Hobbs Bill H.R. 10. Well that -- and that related to aliens who are in the United States subject to expulsion from this country. Felix Frankfurter: Well now, it was Senator Graham's amendment to that Bill? David Carliner: Senator Graham's proposal was included in -- because that was the Internal Security Act which is rather an omnibus bill that included many things. Felix Frankfurter: But -- but his amendment was -- was in conjunction with the Hobbs Bill, to those and his proposal was related to the Hobbs Bill, is that right? David Carliner: Yes, but as you said, ultimately enacted -- enacted in relation to Internal Security Act which was on the omnibus proposal -- Felix Frankfurter: But that was a separate chapter as I remember of the Internal Security. David Carliner: Yes, Your Honor, it was a separate chapter. But it provided and this appears on page 17 of the Government's brief. It is further provided that no alien, the rest of that relates to deportable aliens. It says that no alien shall be deported to any country in which the Attorney General shall punish and be subject to physical persecution. Hugo L. Black: I noticed in the opinion of Judge (Inaudible) in the Chong case that this footnote to this effect (Inaudible) says that 1964 -- 1950, amending 156 here as it referred to the amendment number 20. It was enacted after the administrative determination that these cases had been reached.Did that have any connection to this, why this amendment was put in -- after the Board -- David Carliner: I don't know for certain. Hugo L. Black: -- they are designed to admit these people after they had declined to -- to consider and give them consideration about the expense deported to another country. The Court of Appeals says that -- David Carliner: I don't know for certain, Your Honor, because there isn't any legislative history, I do know the service disagreed with the Chong decision even after it was -- Hugo L. Black: They argued at that time that the -- the man who was out on bond that these people are, did not get the advantage of -- of being kept here. David Carliner: That's right, Your Honor. Hugo L. Black: And the Court held to the contrary putting which interest is on the words needed. David Carliner: That's correct, sir. Now, one additional point which I think is very significant is this -- that the language deportable alien, the Government interprets to mean only an alien who is expelled from the United States. Now, there is no warrant for that at all in the legislative history of the Immigration and Nationality Act or in any other because an alien who is excluded from the United States is just as deportable as an alien who's expelled from the United States. Section 237 of the Act referring to excluded aliens refers to them precisely as being deportable and the Mitzi case points up the fact that these aliens who are excluded are also deportable.

William H. Rehnquist: We'll hear argument next in Number 96-1613, United States v. The Estate of Francis Romani. Mr. Jones, you may proceed whenever you're ready. Kent L. Jones: Mr. Chief Justice, and may it please the Court-- On the date of his death Francis Romani owned real property worth about 50,000 dollars. That property was subject to a private judgment lien and to a laterfiled Federal tax lien. Both of the liens were for amounts that exceeded the value of the estate, and the estate therefore brought this case to determine whether the claim of the United States or the claim of the private judgment creditor should be paid first. The answer to that question appears in the direct text of what is known as the absolute priority statute. Since 1797, that statute has provided a simple rule for the narrow category of cases in which the United States seeks to recover a claim against an insolvent estate. Anthony M. Kennedy: Well, the statute is different in this respect. Until the revision of the statute in question, which I think was 1982, it talked in terms of debt. 3713(a) at page 2 of your brief talks about claim, and it seems to me that a... that the word claim may be quite different than debt. Claim sounds to me as... has the connotation of something that's not... that's ambulatory, or that hasn't been executed yet, whereas debt sounds as if it's something that's fixed. Kent L. Jones: When Congress enacted that provision in 1982 they said it was a formal change of language that was not intended to change the scope of the statute. Anthony M. Kennedy: But the language still is different. Kent L. Jones: The language is-- Anthony M. Kennedy: One is claim, and the other is debt. Kent L. Jones: --The language is different, but Congress didn't intend it to have a different meaning, but moreover-- William H. Rehnquist: How do you know that? Kent L. Jones: --That's... the legislative history-- William H. Rehnquist: Well, but, you know we don't always pay a lot of attention to legislative history. Kent L. Jones: --It's... you may not always pay a lot of attention to it, but in the context where a change has been made to words, and the question is whether that changed the meaning of the statute, it's appropriate to look to the legislative history, especially when Congress says in that history, we're not changing the meaning. That should be authoritative. But-- William H. Rehnquist: A committee says in that regard. Kent L. Jones: --That's correct. There is an answer, I think, in any event to your question apart from that, and that is... I may be... I may have the wrong case, but I think it's United States v. Moore where the Court said that whether the claim is unliquidated or not, it's still covered by the absolute priority statute. But the importance of the absolute priority statute is that it provides the simple rule that the United States shall be paid first. William H. Rehnquist: Well then, what's the point of 6321 and 6323(a), which deal specifically with tax liens? Kent L. Jones: Yes, that's indeed the ultimate question in the case. Speaker: Yes. Kent L. Jones: Does that statute change the application of the absolute priority statute for tax claims? The Pennsylvania supreme court said that it did, and we say it doesn't. The rationale of the Pennsylvania supreme court was that this tax lien statute provides a limitation on the effectiveness of the Federal tax lien, and that by limiting the validity of the lien, you limit the priority of the United States, but in United States v. Key and United States v. Emory the Court said that only the plainest inconsistency between two statutory schemes would justify disregarding this ancient and clear command that the United States be paid first. There is no claim inconsistency between these statutory schemes. The absolute priority statute is a priority statute. It does not require any lien of the United States. In United States v. City of New Britain, and United States v. Vermont, this Court held exactly that, that the right of the United States under the absolute priority statute exists wholly without regard to the existence of any lien. William H. Rehnquist: But in the New Britain case they discussed at great length the tax lien statutes, too, did they not? Kent L. Jones: Yes, because that-- William H. Rehnquist: Well, why would that have been necessary if the only holding of the case was that it's governed by the absolute priority statute? Kent L. Jones: --Because in the New Britain case the debtor was solvent. The absolute priority statute did not, by its terms, apply, and the very important part of that opinion for this purpose is what the Court went on to say about how the Tax Lien Act applies in that situation. What the Court said was, the Tax Lien Act only determines the validity of the Federal lien. It does not, by its terms, contain any priority provisions. It does not set a priorities, it is a lien statute, and the Court said that to determine priorities we look to the background common law rule of first in time is first in right, unless that has been modified by statute, and the Court pointed out that in the insolvency situations to which the absolute priority statute applies, it has been modified by statute. Congress provided specifically since 1797 that in the narrow category of cases involving insolvent estates the United States is to be paid first. Sandra Day O'Connor: But if... the whole thing is so strange. What if the insolvent debtor, instead of dying, became bankrupt? Then the Government isn't necessarily going to come out the same way. Kent L. Jones: Congress specifically has provided that bankruptcy cases are to be determined not under the absolute priority statute but under the priority provisions of the Bankruptcy Code. It's not illogical for Congress to determine that one set of priority rules apply in one context and a different apply in different contexts. Sandra Day O'Connor: But if the debtor is insolvent and dies, then you say this 3713 has to apply, even if it's a tax that we're talking about. Kent L. Jones: Absolutely. Congress said that, but more important... well, equally importantly, this Court has said that no less than seven times in the last 180 years. Sandra Day O'Connor: Well, what if under 3713 instead of a judgment lien there had been a prior recorded mortgage? Kent L. Jones: Well, that takes us to the heart of an ancient dispute that this Court has, by its express statements, never resolved. The-- Sandra Day O'Connor: Well, what's your position? Suppose there was a prior recorded mortgage here-- Kent L. Jones: --The-- Sandra Day O'Connor: --and we were talking about that in the case of an insolvent who dies-- Kent L. Jones: --The Court-- Sandra Day O'Connor: --versus the Government's claim. Kent L. Jones: --In New York v. Maclay, for example, the Court said a mortgage is more than a lien, that it is closer to a title and possession of the property, and-- Sandra Day O'Connor: Well, do you concede that in the mortgage situation the mortgage holder would come out ahead of the Government here-- Kent L. Jones: --I would-- Sandra Day O'Connor: --if it were a recorded mortgage? Kent L. Jones: --I would concede it to this extent. The Court so stated that in Thelusson. Sandra Day O'Connor: Yes. Kent L. Jones: The Court confirmed that in the Maclay case, but I believe it was in either Mass... United States v. Massachusetts or United States v. Texas, in one of those two opinions when they were reciting the wellestablished rule about we prevail against judgment liens but we may not prevail against mortgages, the Court said something to the effect that if the mortgage cases are still valid. Now... and so I suppose that what the Court was saying then was, they weren't revisiting to decide whether the mortgage case-- Sandra Day O'Connor: Well, what are you saying? Kent L. Jones: --Well, I'm... I'm just-- Sandra Day O'Connor: I think we'll try to figure out-- Kent L. Jones: --Okay. That issue-- Sandra Day O'Connor: --what we were saying. I want to know what you're saying about this. Kent L. Jones: --What I'm saying is that the Court has always held that we prevail against the general lien of the judgment. The question of whether we prevail against a mortgage isn't presented in this case. The question in particular-- Sandra Day O'Connor: Well, I know that. I'm asking what your position is if it were. Kent L. Jones: --Well, I'm... my position is that the Court has twice held that we lose to a mortgage, and has once said that it's not certain that that's good law. I really don't-- Stephen G. Breyer: What about all the repair... the repairmen? You know, people come in and they fix the house, and normally you fix the house or you fix the plumbing and throughout the law there are all kinds of ways of making certain those people get paid. They're usually called mechanic's liens, and here Congress has a specific statute that says, you know, if Smith dies and he... or if Smith owes money on taxes, we get it first. We use this magic word lien, but all that means is, we get it first. But by the way, we don't get it first in respect to the mechanic. Kent L. Jones: --No, Con-- Stephen G. Breyer: He gets his money first, right? Kent L. Jones: --Congress-- Stephen G. Breyer: You're saying that the mechanic lien... the mechanics get their money first, before the tax money, I take it. That's not right? Kent L. Jones: --First of all-- Stephen G. Breyer: I was reading 632... yes. Kent L. Jones: --the absolute priority statute doesn't create a lien. Stephen G. Breyer: I mean, I'm taking... a lien is just a magic way of saying the Government gets paid first, I think. Kent L. Jones: It's not a... it's not that kind of a magic word, and this Court has made the very distinction on this subject, and so it's important for me to emphasize it. The right of the United States under the absolute priority statute does not depend upon the existence of any lien, valid or not. It defeats any... what the Court has described in I think seven cases that we've cited. It defeats anything that is a quote, general lien, which is a lien that does not... as the Court said in Thelusson all the way to Gilbert Associates, a general lien does not divest title or possession from the United States. The property remains in the debtor's estate and therefore the United States is to be paid first. And so, is the... so the question that I believe was implicit in your remark was, is a mechanic's lien a general lien covered... you know, which the United States prevails, or is it a specific lien that might come in ahead of the United States under the absolute priority statute. Speaker: Yes. Kent L. Jones: My perception of that is that if the Court had to reach it, under its precedent it would hold that it was a general lien, although it could hold it was a specific-- Sandra Day O'Connor: And not like a mortgage. Kent L. Jones: --It's certainly not exactly like a mortgage. Stephen G. Breyer: So then my question actually is... thank you, that is much clearer, and my question really is what any Congressman or Senator would have had in mind in saying that my goodness, we want to be certain those mechanics who come in and fix the roof are paid before the IRS, and that's what they seem to say in 1623 and, in fact, if we're reading of the statute is correct, every time a person dies insolvent the IRS gets paid before the mechanics. Now, that to me just doesn't make any sense. Kent L. Jones: Well, I'm not... I'm not saying what our position is on mechanic's liens, because I can hear an argument to be made for saying, oh, that's a specific lien within the context of how the Court uses that term. But let's take the judgment lien, which is also referred to in 6323, and which the Court's opinions say clearly we prevail against under the absolute priority statute. Did Congress intend, in adopting 6323, to repeal the application of the absolute priority statute to judgment liens? The answer to that is no. Why? Because at the same... in terms of intent, at the same time that the repealing legislation was presented for... I mean, that the Federal tax lien legislation was presented to Congress in 1966, Congress was also presented with three bills designed expressly to repeal the application of this statute to tax claims. Congress conducted hearings on those legislation, informed itself of the objections, and declined to enact it. 4 years later, the same repealing legis-- Stephen G. Breyer: Or a committee did, anyway. Kent L. Jones: --Yes. Stephen G. Breyer: I'm normally with you on legislative history, but I'm getting off the train in this instance for the reason that I'd ask before these particular bills, of what sense it would make? What sense would it make-- Kent L. Jones: It-- Stephen G. Breyer: --for... to have a law which says, like 6323, we normally put all these things ahead of the secret IRS lien, because it isn't necessary... but we don't-- Kent L. Jones: --The sense that it-- Stephen G. Breyer: --we don't put it ahead when the person dies. I'm looking for some sense in that. Kent L. Jones: --The sense that it makes is, when the tax lien provisions are applicable, they're applicable within a priority context determined by some other statute or legislation. In the situation you've described, if he goes into bankruptcy, then it's the Bankruptcy Code that prevails, the Bankruptcy Code that is operative. All that the tax lien provisions say is whether we have a valid lien, and then you should ask, so what if we don't have a valid lien, and the answer under the absolute priority statute is-- Speaker: Mr. Jones-- Kent L. Jones: --it doesn't matter. Ruth Bader Ginsburg: --You are presenting the position as though it's clear and certain this is the Government's position, the only question mark is what this Court may have done in some mortgage cases, and yet the red brief cites an Attorney General's opinion from 1857. But you don't... as far as I remember don't address that at all in-- Kent L. Jones: Well, one of the reasons we don't address that opinion of the Attorney General is because all of that portion of their argument relates to an issue that wasn't raised below, which is whether this is-- John Paul Stevens: --No, but they can defend the judgment on the ground that it wasn't thought of below. That's wellsettled. Kent L. Jones: --They can defend it on a ground that wasn't even raised below. John Paul Stevens: Sure. Kent L. Jones: Or addressed below. They-- John Paul Stevens: If their reading of the statute is correct, namely that the... what you call an absolute priority statute merely applies to unsecured claims, then we don't have to get into all this, and we would have to affirm-- Kent L. Jones: --If the-- John Paul Stevens: --if that's a correct reading of the statute. Kent L. Jones: --If the Court were going to revisit the question of whether the judgment lien was subject to the absolute priority statute I would think it would want to do that in a context where it was raised below, because the Court has already decided that issue seven times. John Paul Stevens: Well, it's been fully briefed in this, by both sides in this case. You filed a reply brief. Kent L. Jones: And stare decisis would also suggest-- Speaker: Well-- Kent L. Jones: --that what the Court would do would be to apply Thelusson, Gilbert Associates, United States v. Texas, United States v. Massachusetts, City of New Britain and Vermont, and say-- William H. Rehnquist: --United States v. Massachusetts was a 5 to 4 decision, so it has less claim to stare decisis than-- Kent L. Jones: --Well, it was just one of a long string of decisions, and my point is simply that this is wellsettled since 1817. If the Court wants to revisit the issue, I would think it would do it in a case where we had an opportunity to brief it in the courts below and fully here, instead of just in a reply brief. Ruth Bader Ginsburg: --Mr. Jones-- --But you still haven't commented-- Kent L. Jones: Yes-- John Paul Stevens: --on the merits of the Attorney General's brief. Kent L. Jones: --Right. John Paul Stevens: You said we didn't discuss it because it wasn't raised below, and that's your only answer to that opinion? Kent L. Jones: No, I... that's not my only answer. That opinion was in 1850-something. It was... what it really was, and what the opinion reflects, is that it was an issue about whether a mortgage takes priority under the absolute priority statute, and the Court cited Conard, and maybe Thelusson, but certainly Conard for that proposition, which... we don't intend to dispute Conard. We don't intend to dispute that a mortgage... this Court has held that a mortgage takes priority, and-- Antonin Scalia: Why not? It doesn't make any sense. Kent L. Jones: --Well, when Justice O'Connor asked me that, it's sort of like... well, I... I'm not trying to reformulate the Court's cases. I'm trying to describe them, and the Court's cases have contained that last caveat about, well, whether that is still good law. We don't place that at issue in this case. But getting back to Justice Breyer's question about why does this make sense, this makes sense because Congress has provided priorities for cases involving bankrupts in the Bankruptcy Code. Congress has provided by indirection cases for insolvents, which is that they haven't changed the common law rule of first in time, and that's what the Court held in City of New Britain. Sandra Day O'Connor: Well, the priority under this would be first in time, first in right. I mean, it's not a mystery what the priority would be if-- Kent L. Jones: No, the priority here is we're paid first. Sandra Day O'Connor: --6323(a) governs. Kent L. Jones: No, the priority in an insolvent estate is the absolute priority statute, and that's we're paid first. These are different rules. Congress-- Sandra Day O'Connor: That's the issue. If we were to say 6323(a) was the more specific and it applies, then it would be first in time, first in right, wouldn't it? Kent L. Jones: --That is... well, I wouldn't think you'd say that for a variety of reasons. One is, the Court doesn't apply that method of analysis to the absolute priority statute, but even if it did, which of these provisions is more specific, which is a point I've been trying to get up to. The absolute priority statute is a very narrow statute. It has an extremely narrow scope of operation. It only applies in these narrow categories of cases involving insolvent estates and a few other narrow insolvency situations. The dominant majority of cases are governed by other priority provisions. Bankruptcy cases, solvency-- William H. Rehnquist: But are you saying that priorities, lien, or debt priority statutes come into play in a majority of cases where there is no insolvency? That seems odd to me. I would think the time that it would be most useful and probably most applicable is when there is some sort of insolvency. Kent L. Jones: --And in the vast majority of those cases they're in the Bankruptcy Code, covered by the Bankruptcy Code. I mean, we know Congress intended to have two different priority schemes, because the absolute priority statute specifically excepts bankruptcy cases from its application. Ruth Bader Ginsburg: But Mr. Jones, the Government is owed all kinds of money by all kinds of people, and that's... the absolute priority statute could cover those debts, but here we have something that deals with tax liens, so that's the specific subject matter, as-- Kent L. Jones: Well, that deals with tax liens, and that's the point, because Congress certainly knew full well that this Court had held in Thelusson in 1817 and in the several cases in the fifties, like City of New Britain, knew full well that this Court had held that you don't need a tax lien. It doesn't matter if you don't have a valid tax lien under the... in the narrow situations that the absolute priority statute applies, and so you have to understand that these statutes really operate in different... on different issues. Every Federal court that has considered this has recognized that the priority statute establishes priorities, the lien statute deals with liens. These are different subjects. There's no inconsistency between these two provisions because they both have full application in the separate contexts that they apply. Stephen G. Breyer: --What is the... so I'm still back to the... I'm looking at it... to be honest with you, I'm seeing your statute as a very old one, and once you take that statute the courts have to get into a real nightmare of an issue of deciding when title is passed, or when it isn't passed. It isn't true that any physical property in the possession of the deceased is going to go to the Government. You have to draw odd lines. Time passes. Congress begins to pass specific statutes dealing with specific situations that set up priorities, and unless there is some reason for not applying these later, specific statutes, I don't know why we wouldn't-- Kent L. Jones: Well-- Stephen G. Breyer: --because they're a more thoughtout, careful method of distinguishing between different kinds of-- Kent L. Jones: --You can't come to that conclusion-- Speaker: --Yes. Kent L. Jones: --after reading the City of New Britain opinion, because the City of New Britain opinion says that in the insolvency situation Congress has provided specific priorities, and we win without regard to the existence of any lien. Stephen G. Breyer: What's the... what is special about dying insolvent as opposed to just living and not paying your taxes? What... what's the difference. Kent L. Jones: It's not so much that there's something special about it. It's that the statutes have different words, they have different histories, they have different purposes, they do not conflict if you take them each at their fair reading. The... okay, let's say the fair reading is, this is a judgment lien, our lien would not be valid against it. The next question is-- John Paul Stevens: If you go into history, your opponent argues you go back to the prerogative of the Crown and apply to everything, just general claims and not secured claims. Kent L. Jones: --I think that that's a-- John Paul Stevens: You ignore that history? Kent L. Jones: --vast overstatement again. I mean, they cite a case called Marshall v. New York, where the Court says that the common law rule was that specific liens, only specific liens prevail-- John Paul Stevens: Do you think they correctly or incorrectly describe the law in England before we got started? Kent L. Jones: --I... they didn't correctly describe the law in England as this Court described it in Marshall. Speaker: Well-- Kent L. Jones: As far as what the law in England was before, this Court has said it doesn't matter, because in United States v. Moore, and all the way back in 1824, I think, in the Bank of North Carolina case, the Court said that whatever the common law rule is, this priority of the United States arises solely by statute, and it is interpreting that statute that the Court has said, seven times since 1817, that a general lien such as a judgment lien, or a State and municipal tax lien, or a landlord's lien does not prevail against the absolute priority of the United States. And in City of New Britain they said we don't need a lien in these cases. A lien... and or repeated that same conclusion in United States v. Vermont. The lien... the existence of a lien is a security device. It's not a right to payment. We don't have a lien, so when there's property... in the absolute priority situation, when there's property possessed by the insolvent estate, if it's transferred out of the estate we don't have a lien that follows it, and the absence of such a lien doesn't affect our right to be paid out of the property of the estate. Ruth Bader Ginsburg: --You do concede that certain secured creditors can get priority in an insolvent estate situation, and you would-- Kent L. Jones: Yes. Ruth Bader Ginsburg: --say, well the mortgage... is there anything... well, as to the mortgage, do you make a distinction between-- Kent L. Jones: I think a purchase money mortgage-- Ruth Bader Ginsburg: --title States and lien States? Kent L. Jones: --I think a purchase money mortgage would plainly be the sort of thing this Court would hold as a practical matter would hold it's a specific lien that prevails against the absolute priority of the United States. I think that much is clear, to answer your question. Ruth Bader Ginsburg: Any other-- Kent L. Jones: The Court has never decided that question, and has specifically avoided it, so I can't tell you how you'd decide it. Ruth Bader Ginsburg: --I just wondered what worked in with your theory. Kent L. Jones: The theory that the Court has is that to be specific for purposes of the absolute priority statute you have to divest title or possession of the good from the debtor's estate before the claim of the United States arises. Ruth Bader Ginsburg: So then in mortgage lien States, as distinguished from title States, then in the lien States the creditor would lose. Kent L. Jones: Justice Cardozo who addressed that very point in New York v. Maclay, and he said, well, I don't have... I can't decide now whether a lien State the mortgage would win, but, he says, this... a mortgage is more than a... more than merely a lien, he said. It's more akin to title. It's more akin to possession. Now, there's a reason why the Court hasn't had to address that question. The reason is that it has never had a case before that presented anything other than a general lien that did not divest title and possession, and so that boundary is still out there. It... but it's never been defined by the Court other than in Thelusson, and it... they said, well, it's title or possession-- Stephen G. Breyer: We-- Kent L. Jones: --and the Court has followed that for 180 years. Stephen G. Breyer: --This is a slightly picky point. I'm reminded of my tax professor, Ernie Brown, and I'm looking at the lien statute, and you're saying, well, that's just a lien statute. We win anyway. But it doesn't say the United States shall have a lien. It says the amount owed shall be a lien, right? Kent L. Jones: That's 6321. Stephen G. Breyer: Yes, 6321. Kent L. Jones: 6323-- Stephen G. Breyer: So it says, if I die insol... I know, 6323 refers to the lien in 6321. Kent L. Jones: --And says it won't be valid-- Stephen G. Breyer: Yes, the lien won't be valid. Kent L. Jones: --Right. Stephen G. Breyer: But what 6321 says is, the amount when I die insolvent and owe it to the IRS, it says that amount shall be a lien, so the amount that I owe you is a lien. It's not that you have a lien. Kent L. Jones: But we don't-- Stephen G. Breyer: And therefore the language of the statute is consistent with it replacing the statute that you're talking about. Kent L. Jones: --Well, that... I'm sorry, I-- William H. Rehnquist: I put that-- Kent L. Jones: --I'm just surprised at that suggestion. The Court... I can't remember the case, but I'm quite confident that the Court has said that the tax lien provisions supplement the right of the United States to recover a tax. Stephen G. Breyer: --We have to say it's a supplement? Kent L. Jones: Well, I think it obviously is. Every lien is a supplement to the underlying claim. I mean, it doesn't substi... it doesn't replace the claim. It's a security device. The question is, do we need it? No, we don't. The Court has so held. We don't need that lien. William H. Rehnquist: Why did Congress give it to you if you didn't need it? Kent L. Jones: Well, we don't need it in the absolute priority, in the narrow categories of the absolute priority statute, because there we have a right to be paid first. When those priorities aren't applicable, yes, we benefit from the lien in other priority contexts. Congress intended these priority rules to apply here, intended other priority rules to apply elsewhere. I've got just a few minutes left. I only want to make one other point at this time, and that is that respondent claims that this ancient statute should be modernized to avoid an inconvenience to creditors. The simple answer to that is what the Court said in Emory. Whatever the merits of that objection should be made to Congress, not the Court. And that brings me to the point that these objections were raised with Congress twice. In '66 and '70, Congress conducted hearings on them and declined to make the changes that respondent now asks this Court to make. Going all the way back to 1805, in the first case that this Court decided under the absolute priority statute, Chief Justice Marshall said for this Court that the inconvenience of the statute did not justify its judicial nullification, and for that reason the Pennsylvania supreme court's decision should be reversed. I'd like to reserve time for rebuttal. William H. Rehnquist: Very well, Mr. Jones. Mr. McCartan, we'll hear from you. Patrick F. McCartan: Mr. Chief Justice, and may it please the Court-- If I may, I would like to start with the question posed by Justice Stevens, which is whether antecedent security interests, traditional security interests survive assertion of the priority of the United States Government under the priority statute. We did not handle this case below, and cannot tell the Court, therefore, why it was not discussed below, but I can and do say that it is clearly embraced within the question presented by the Government in its petition. That is why they argued this issue at pages 9 and 10 of the petition, and why they reargued it at pages 14 and 16 of their opening brief on the merits here. The statute under which the Government claims priority had its origins in the prerogative of the Crown for the payment of debts due to the sovereign. When it was enacted, there was more than a century of English precedent to the effect that antecedent security interests would survive assertion of a priority under the prerogative of the Crown. I would urge this Court to revisit your early decisions and those of some of the lower Federal courts at the time. It is old learning, but it demonstrates quite clearly that there is not an unbroken line of authority from Thelusson v. Smith to modern times, as contended by the Government. Thelusson was decided in 1817. 11 years later, this Court decided Conard v. Atlantic Insurance Company, stating, and it was essentially the same Court, that Conard should be limited... or, excuse me, that Thelusson should be limited to the circumstances of that case, and stating unequivocally that Thelusson did not stand for the proposition that a perfected lien could be displaced by, and I quote, the mere priority of the Government under Revised Code section 3466. Subsequently, this Court, in United States v. Hack and Brent v. Bank of Washington, upheld traditional security interests against assertion of priority under the priority statute. For a period of 75 years thereafter, it was the understanding of the lower Federal courts that traditional security interests would survive assertion of priority by the Government under this statute. The Attorney General of the United States in 1857 issued an opinion to the effect that Thelusson was overruled by Conard, and that was the understanding, that was the assumption, that was the premise on which the lower Federal courts acted from that point on. Cottrell v. Pierson, which appears on pages 11 and 12 on our brief, I think is illustrative of the understanding of the lower Federal courts. Now, it wasn't until 1933 in New York v. Maclay that the language of Thelusson referring to the need of a lienor to perfect the lien by acquiring title or possession was revived. Maclay, though, was a case which involved personal property and an unliquidated amount in terms of the lien. The New York State statute with respect to franchise taxes is very, very unusual. Franchise taxes under the New York law are a lien in advance of the years in which they are due, so in Maclay you didn't even have the amount of the lien determined because it wasn't yet due and, secondly, any property to which it may have attached may not even have been in existence. The lien is obviously-- Sandra Day O'Connor: Counsel, what's your best case for support of your position that the judgment lien comes before the Government's right under 3713? What's your best case? Patrick F. McCartan: --You mean ahead, Your Honor, in terms of whether the lien survives? I would say it would be Cottrell v. Pierson, United States v. Hack, and Brent v. Bank of Washington. Those three cases all established the traditional security interests would survive assertion of priority by the Government under the statute. Sandra Day O'Connor: Well, is the judgment lien situation different somehow from a mortgage or other type of secured interest where possession changes, or title, or-- Patrick F. McCartan: I think not, Your Honor, and this Court itself in Rankin & Schatzell v. Scott said that a judgment lien has the same power as the mortgage to hold the land, and if we look at these early cases-- Sandra Day O'Connor: --We... the court below didn't really get into the question of the nature of the judgment lien here, did it? Patrick F. McCartan: --No, it did not, Your Honor. Sandra Day O'Connor: So we don't actually know the nature of it here. Patrick F. McCartan: Well, we know that it was a judgment lien that was definite with respect to the identity of the judgment creditor, the amount of the judgment, and that it was immediately enforceable. It was properly perfected-- Anthony M. Kennedy: Did it apply to all property in the State of Pennsylvania? Patrick F. McCartan: --I'm sorry, Your Honor. Anthony M. Kennedy: Did it apply to all property in the State of Pennsylvania-- Patrick F. McCartan: No, Your Honor. It applied only-- Anthony M. Kennedy: --or just a particular county-- Patrick F. McCartan: --only to property located within Cambria County, which is the county where the judgment was entered, indexed, and was immediately enforceable, and there was only one parcel of property in Cambria County which was owned by the debtor. Anthony M. Kennedy: --But there was nothing to make it more specific than that. Then why isn't-- Patrick F. McCartan: There was nothing that need make it more specific than that, Your Honor. In order to protect the interests that are involved here, which would be subsequent purchasers, or anyone else with an interest in the affairs of the debtor, a simple title search would reveal this. It's not just a matter of journalizing the judgment in the court of record. It is taking that judgment to the county recorder and then entering it there and indexing it so that it will appear in the land-- Anthony M. Kennedy: --Well, except the suggestion is that a mortgage is specific as to property, and that judgment liens are not, and whether or not this Court can get into State lien law as to what's specific and what's general is certainly problematic, but that's the suggestion. Patrick F. McCartan: --Well, Your Honor, when they say that the mortgage is more specific, are we looking at the nature of the mortgage, or are we talking just about parcels? In this case, there was only one piece of real property located within Cambria County to which this judgment lien could attach. The judgment lien was definite with respect to the identity of the judgment creditor-- Anthony M. Kennedy: Well, but-- Patrick F. McCartan: --the amount of the lien, and the property. Anthony M. Kennedy: --It seems to me unlikely we're going to base our holding on that. We have to assume that there were five other pieces of property in other counties, if your reading of the statute is correct. Patrick F. McCartan: No, Your Honor, it would not apply to any property located in other counties unless that judgment were taken to those counties and indexed. Anthony M. Kennedy: But under your submission if you file it in every county, then your lien is good in every county. Patrick F. McCartan: In every county... if you take that judgment and enter it according to State law, it is good in any county in which real property is located, and that lien has sufficient capacity to bind the land. If you look at the early cases, Justice O'Connor, with respect to mortgages, we have to be careful, I think, in looking at these cases that we don't become hidebound by the common law's emphasis on the form of the transaction. At common law, a mortgage took the form of a straight conveyance of title, but it was always subject to defeasance. The mortgagor had an equity of redemption. The mortgagee was never entitled to realize any more from the property than the amount of the secured interest. The mortgagor's spouse even retained dollar. The mortgagee's spouse did not. With respect to real property... and none of the cases relied upon by the Government here involve real property. They all involve personal property. In cases of real property, a lien can be perfected if it is filed after entry of judgment and indexed in accordance with State law. That was done here, and that lien was, therefore, perfected with respect to real property within the county where it was recorded. Now, if the Government's theory is correct, it should apply to mortgage liens as well, and mortgages are liens in 30 State jurisdictions. There's no reason to distinguish between a mortgage lien and a judgment creditor's lien, which has a history at least at long and as enforceable as a mortgage lien. Antonin Scalia: Mr. McCartan, if I understand your position correctly you're not asserting that just the entry of the judgment would have been sufficient to overcome the Government's claim here. That it is the entry of the judgment plus the perfection of the lien-- Patrick F. McCartan: That is correct. Antonin Scalia: --by recording it in... as against particular property? Patrick F. McCartan: That is correct, Your Honor. William H. Rehnquist: In Arizona, where I practiced, if you got a judgment you would have to take a... get a certified copy of the judgment from the clerk of the court and take it to the county recorder, and the county recorder would record it the same way it would record a mortgage. Is that the way Pennsylvania procedure works, too? Patrick F. McCartan: That's the way Pennsylvania works, Your Honor, and at that point, that lien is immediately enforceable without any further judicial proceedings of any kind, as was the case in United States/Texas, a case on which the Government relies here. The mortgage, or the certified copy of the judgment is taken to the county recorder, it is indexed, and it is placed on the land records. It is therefore specific with respect to any land that is located within that county, and it binds that property. There is no way in which a mortgagee or a judgment lien creditor can protect themselves against the kind of theory that's asserted by the Government here. Do you realize that 400,000 dollars of this 490,000 dollar tax lien, or tax claim, as the Government would prefer to say, was for tax years that were after the time when this judgment was entered, indexed, and perfected as a lien under Pennsylvania law? The commercial mortgage market would be in total chaos if that theory were to be accepted. Let me address next the question of the interaction of these two statutes. The Government would make it appear that the only issue here is whether there is an implied exception to the priority statute, when in fact the issue is really whether there is an implied exception to one statute or an implied limitation on another, as I think Justice Breyer suggested. There are really two separate and distinct questions presented by this phase of the case. First, whether the competing statutes are inconsistent within some range of overlapping application. Sandra Day O'Connor: Well, we've applied, I think, a higher standard in justifying any displacement of section 3713. We really have at least articulated a higher standard than just finding a more specific statute. Patrick F. McCartan: Well, when you say a higher standard, Your Honor, I assume that you are referring to the test in United States v. Key, where the Court set forth a threepart test-- First, is there a facial inconsistency, or a logical inconsistency between the two statutes, secondly, would application of the priority statute make the subsequently enacted and more specific statute redundant, or does the legislative history in any way suggest a congressional intention to carve out an exception to the priority statute? I submit that while it is doubtful in my mind that in a case that didn't even involve an inconsistency the Court was setting forth an overarching test to resolve all of these cases, I submit the situation here does satisfy the test that was set forth in United States v. Key. To begin with, the competing statutes are inconsistent, and they are inconsistent in the very area presented by this case. The relative priority of the Government depends upon which statute applies. And, Justice Breyer, it doesn't make sense for the Government to argue that, well, we are here as a tax claimant as well as a lienholder, and we would prefer to proceed as the holder of a tax claim rather than as a lienholder. If you think about that, it's another way of saying that the Government should stand in a better position as an unsecured creditor than as a secured creditor, something that Professor Kennedy, the leading commentator in this area, said was quite paradoxical, that the Government should be better off-- Speaker: I think it-- Patrick F. McCartan: --as an unsecured than as a secured creditor. Stephen G. Breyer: --Where... suppose they're right on the lien statute, and he's clarified the argument quite well. Suppose they're right, then where... suppose they're right, in other words, that the priority statute applies. It would apply to people who die insolvent. If that were true, where would the tax lien statute apply? It couldn't apply to dead people, because the other one does for dead people. It would apply to live people. It couldn't apply to live bankrupt people, because the bankruptcy statute would apply to those people, so it would apply to insolvent live people who aren't... no, sorry, it would apply to people who... perhaps solvent live people. Now, what is that universe like, the universe of solvent, live people for whom one needs a tax lien statute for the Government to collect its money? What is that universe? Patrick F. McCartan: That universe is one where the tax lien would have no... tax lien statute would have no significance whatsoever, as the Chief Justice pointed out earlier. If the debtor is solvent, there is no need for these carefully crafted priorities in section 6326(a). If the debtor is solvent, everyone is going to paid. Stephen G. Breyer: There would at least be people who disappear, but even-- Patrick F. McCartan: Pardon, Your Honor? Stephen G. Breyer: --There might be somebody who disappeared, leaving a house behind, and you'd have a tax lien against the property you could find. Patrick F. McCartan: And that very limited area of cases is hardly what Congress had in mind-- Stephen G. Breyer: Is there any other area? Patrick F. McCartan: --in crafting this. There isn't. The Government says, in an effort really to prove that the priority statute is really the more limited and specific statute, that the Tax Lien Act would have application to cases involving solvent debtors, where, of course, it wouldn't be necessary, and secondly in bankruptcy cases. Contrary to what the Government suggests, priorities in bankruptcy are determined by sections 724 and 726 of the Bankruptcy Code, not the Tax Lien Act, and the Government's reliance on Terwilliger here is misplaced. There is no reference to the Tax Lien Act in the Bankruptcy Code, nor does the Tax Lien Act apply with full force when a trustee in bankruptcy, acting under section 544 of the Bankruptcy Code, which gives the trustee status of a hypothetical judgment lien creditor at the outset of a bankruptcy proceeding, to determine what liens would survive the bankruptcy, which secured liens might exist. The trustee would refer to the Tax Lien Act to determine if a Federal tax lien were involved, it had been perfected, but then the priorities of the bankruptcy statute would kick in to determine how these payment would be made and to whom and in what order, and in that situation, Your Honor, the Government would apply in the third category and in the sixth category, not in accordance with the provisions of the Tax Lien Act. This is the basic structural flaw in the Government's case. If you accept this theory, the Tax Lien Act has application only to cases where its carefully crafted protections of other creditors would have no significance, and it would also be inconsistent with what this Court itself said in the Kimbell Foods case, and that is that this statute represents congressional disapproval of the unrestricted Federal priority in tax matters. Now, I don't think that Congress took the time to craft this very detailed statute in order to have it apply only to situations where it would have no significance, and where its priorities would be rendered totally ineffective, but that is what the Government's position is. Going back, Justice O'Connor, to the key test, I think I've already demonstrated there is an inconsistency between the statutes, because the priority depends upon which statute is applied. Secondly, as I've just discussed, the Tax Lien Act would be totally redundant, as would, I might add, other Federal lien statutes if the Government's theory is to be accepted. If you have a solvent debtor, it doesn't matter if you have a lien or not, you're going to be paid. Now, with respect to the legislative history, the Government points to two proposals that were advanced by the ABA in 1959 and again in 1970 by way of amendment to the Federal tax lien... or, excuse me, to the priority statute. Those amendments went far beyond any issue that is involved in this case. This Court has always been reluctant to draw any inference from congressional inaction, and I submit in this case it would be totally inappropriate to do so because of the breadth of the amendments-- John Paul Stevens: But do they go beyond what your reading of the statute was in the first part of your brief? Patrick F. McCartan: --No, Your Honor. In fact, in the final report of the ABA, which is referred to in the legislative history, I think it is clear that the ABA at that point thought that one of the proposals that was being advanced was really to clarify that traditional security interests have always survived assertion of priority by the Government under the statute. In other words, with respect to that specific proposal, which was part of a much larger package, the ABA was of the view that they were really conforming law to what traditionally it had understood to be, contrary to the suggestion in some cases. If you look at the legislative history of this statute in terms of how the structure of the statute has evolved over time, I think it is also clear that we meet the test set forth in The United States v. Key. This is a statute that started out as a means of facilitating tax collection on the part of the Government. Over the years, there has been a steady expansion of the protection afforded to competing creditors, and if you look at the committee report of the 1913 statute, Congress was of the view at that time that they were putting these other creditors on an equal footing with the Government in tax matters. In 1966, the 1966 amendments, which gave even unsecured creditors, Justice Breyer, priority over a properly filed and perfected Federal tax lien, Congress said that these amendments were designed to bring the Federal Tax Lien Act in conformity with the provisions of the Uniform Commercial Code, and under Article 9 of the Uniform Commercial Code, secured claims are always given preference over unsecured claims. So I think that in terms of whether we have satisfied the standards set forth in the United States v. Key, it is clear that we have. With respect to the cases relied upon by the Government, I want to emphasize that in the case of New York v. Maclay you had a situation of a State lien, State franchise tax lien that was designed to cover all property of the debtor that were accrued in advance of the years in which the amount of taxes were due, so you had an amount that was undetermined, you had property that was undetermined. Antonin Scalia: It wouldn't have been a perfected lien under the Uniform Commercial Code. Patrick F. McCartan: It would not have been a perfected lien under the Uniform Commercial Code or under any other standard, Justice Scalia, that I can consider. The same was true of United States v. Texas, another case on which the Government relies very heavily. In that case, the amount of the lien was undetermined. It required judicial proceedings to determine the amount. The property there was not only all property used in the business, but all property that might thereafter be acquired, far different from the property in this case located within the county in which this judgment was entered, indexed, and perfected as a lien. Every other case that is relied upon by the Government involved... and which turned on possession of the property involved, was a case involving personal property. Liens on personal property at common law required the creditor to take possession of the collateral. If the creditor did not have possession of the collateral, there was no lien at common law. Antonin Scalia: Are these all very old cases, Mr. McCartan, because that's certainly not the rule now-- Patrick F. McCartan: No, that-- Antonin Scalia: --under the UCC. Patrick F. McCartan: --Now you can make the filing with the UCC, but at common law, absent possession of the collateral, the creditor was not deemed to have a lien. In fact, any lien on personal property absent possession was deemed to be fraudulent. So all of these cases on which the Government relies, the socalled modern cases, are really just reaffirming, in the case of personal property, traditional common law principles. The case is different, the considerations are different with respect to real property. Antonin Scalia: But you want us to bring the lien statute up to date with the UCC, which is what you say the legislative history expresses as the purpose-- Patrick F. McCartan: Well, the-- Antonin Scalia: --and you're not going to do that if we continue to make this absolute requirement that in the case of personal property you have to be in possession. Patrick F. McCartan: --Well, in terms of... no, today in terms of personal property with a UCC filing you can obtain a lien on personal property. Antonin Scalia: Right. Patrick F. McCartan: What I'm talking about are the cases involving State tax liens, where personal property was involved and this Court said, absent divestiture of title or possession of the property you don't have a perfected lien on personal property. William H. Rehnquist: Isn't what we're talking about here real property? Patrick F. McCartan: That's right, Your Honor, and all of the cases that the Government relies on have turned on the requirement of possession for the property, as enunciated in Thelusson v. Smith, have involved personal property. David H. Souter: So you're just saying that that feature makes it impossible for the Government to claim authority from those cases, rather than those features should be regarded by us as a basis for present law. Patrick F. McCartan: That's correct, Justice Souter, and I think that, too, is really why stare decisis is not implicated here, in addition to several other reasons, but these cases on which they rely do involve personal property and not real property, and if we're talking about stare decisis we have to go back to Conard v. Atlantic Insurance Company, and there the Court was of the view that Thelusson should be limited to its facts, and that the requirement that the judgment creditor obtain title or possession of the property was limited to the facts in that case. John Paul Stevens: Was Thelusson personal property? Patrick F. McCartan: No. Thelusson was real property, Your Honor, but in Thelusson the judgment creditor was attempting to reach the proceeds of the sale of the property and, as the Court pointed out in Conard, what the judgment creditor should have done was to proceed against the land rather than the proceeds from the sale of the land, and that is why Thelusson was being limited to what the Court said were its circumstances. The Court was very emphatic that Thelusson did not stand for the proposition that a perfected lien could be displaced by the mere priority of the Government under revised statute section 3466. Ruth Bader Ginsburg: And that's the position you say the Attorney General in that 1857 opinion-- Patrick F. McCartan: That's correct, Justice Ginsburg. In 1857 the Attorney General's opinion was to the effect that Thelusson had been overruled, not just limited to the circumstances of the case, and that the priority statute would not reach back over liens general or specific that were antecedent to the accrual of the Government's claim. Ruth Bader Ginsburg: --And yet he-- --Your position would require us to overrule Thelusson, I think. Patrick F. McCartan: My position, I think, would require you to at least distinguish it, Your Honor. Conard, if you accept what the Court said in Conard, that Thelusson did not stand for the proposition that a perfected lien could be overcome by the priority statute, then consistent with Conard you don't have to overrule it. John Paul Stevens: But normally a lien attaches to the proceeds, or I mean... well, anyway, go ahead. Patrick F. McCartan: You see what I mean, though, that the distinction made in Conard would permit the Court to proceed on the basis of Conard without addressing specifically the issue of whether Thelusson should be overruled. As this Court said in Rankin, the judgment lien does follow the property and can be foreclosed, even in the case where a junior lienholder or unsecured creditor has moved against the property in the first instance. I submit that the Government's position in this case, and we are talking about real property, confuses what is necessary to perfect a lien with respect to that property with satisfaction of the underlying judgment. Requiring a creditor to take possession of the property or to foreclose on the lien is a means of satisfying the underlying obligation. It is not required to perfect the lien under modern recording statutes, and the only cases that would indicate to the contrary are cases that have involved unspecified personal property or real property that could not be identified. In this case, the property is clearly identified, the identity of the lienor is clear, the amount of the lien has been established, and the property is located within the county in which the lien was perfected. We satisfy the test in United States/Key, in United States v. Campbell, and I submit that the judgment of the Pennsylvania supreme court should be affirmed. Thank you. William H. Rehnquist: Thank you, Mr. McCartan. Mr. Jones, you have 4 minutes remaining. Kent L. Jones: Thank you. There are basically two propositions respondent makes. One is that the Court should disclaim reliance on a distinction that's recognized for 180 years, from Thelusson through Gilbert Associates, between a general lien that does not defeat the absolute priority of the United States and a more specific lien that may. The Court has held... I'm repeating myself, probably, but I think seven times that a judgment lien is such a general lien and that the priority of the United States prevails against it. It's said it not only with respect to personal property, it's said it at least twice with respect to real property. In United States v. Texas in 1941 the Court said, and I'm quoting from page 7 of our brief, but I'm quoting the Court's opinion, a general judgment lien upon the land of an insolvent debtor does not take precedence over claims of the United States unless execution of the judgment has proceeded far enough to take the land out of the possession of the debtor. Antonin Scalia: Mr. McCartan's point, as I recall, was that the lien in that case was not perfected. The amount was not even established. Kent L. Jones: He's confusing something that this Court has made clear shouldn't be confused, and that is the standards for specificity under the Federal Tax Lien Act, as contrasted with the standards for specificity under the absolute priority statute. The Court in Vermont and in New Britain made clear that those are really two entirely different questions. The question under the Federal Tax Lien Act is, is there a State lien, and the answer is yes if it's become definite in terms of the name of the lienor, the amount of the lien, and the property to which it applies. But as the Court explained in Vermont, the question of whether you have a specific lien for purposes of the absolute priority statute is a different one, and turns on whether, as the Court said in that case, the debtor has been divested of title or possession-- William H. Rehnquist: Well, why should they be different? Kent L. Jones: --They are different because the statutes have different scopes and application, which this Court has clearly held in at least two cases this century. William H. Rehnquist: Is it... was the distinction, or they're saying they're different based on the difference in language in the statutes? Kent L. Jones: And the statute's objectives, yes. I mean, it goes back to the language. The absolute priority statute simply says we get paid first, and the question is, well, is there something that prevents that from happening, and the Court's answer has been, well, if the property has been taken away from the debtor, then you don't get paid first. If it's been taken away from the debtor by something so specific, like a mortgage, then you don't get paid first, but if it's just a general claim against that property, you still get paid first, because it's still in the possession of the debtor, and the statute says, and the Court says we obey the plain language of the statute that the United States gets paid first. To reach a different conclusion the Court would have to overrule no less than seven opinions over the last 180 years. The cases that he says are his best cases for this proposition were all in the early part of the 19th Century. They don't... as our brief describes, they don't stand for the proposition that he contends. This Court has expressly limited the application of those cases to the mortgage situation in the Maclay, New York v. Maclay, that's what Justice Cardozo carefully explained. The second argument that they make is that this statute, this application of the absolute priority statute somehow makes the Federal tax lien provisions meaningless, which if you think about it is a preposterous contention that has absolutely no support for it. The Federal tax lien provisions of course apply in the ordinary situations that the absolute priority statute doesn't apply. In bankruptcy court, for example, they will determine whose lien comes first, where it matters whether your lien came first or not. In the... I'm sorry. My time has expired. William H. Rehnquist: Thank you, Mr. Jones. The case is submitted.

William H. Rehnquist: We'll hear argument now in No. 02-1389, the United States v. Abel Cosmo Galletti. Mr. Jones. Kent L. Jones: Mr. Chief Justice, and may it please the Court: Federal employment taxes owed by a partnership were assessed by the commissioner, and when the partnership failed to pay the taxes, the United States brought this action to recover the taxes against the individual partners who were derivatively liable under State law for all debts of the partnership, including its tax debts. Anthony M. Kennedy: Did the Government have to wait until the partnership failed to pay? Could it have proceeded immediately against the partners under... under the governing State law? Kent L. Jones: You've addressed an... an unanswered question that isn't presented here, of course. It's unanswered because Federal law-- Antonin Scalia: It... it's not presented, depending on what you mean by derivative liability. I... I always thought that derivative liability would be liability that doesn't attach unless and until the person primarily liable fails to... fails to pay up. Kent L. Jones: --And... and I agree with that, and... and the Uniform Partnership Act, which California has adopted, contains a provision that specifies that the creditor must exhaust his efforts to recover from the partnership before he can recover from the partners. Antonin Scalia: I see. Kent L. Jones: And... and so that's what makes it clear this indeed a derivative secondary liability. Antonin Scalia: You think maybe the United States may not be bound by that. You... you don't want to... you don't want to concede that the United States is bound by that. Kent L. Jones: It's not so much I don't want to concede. I don't feel that I'm able to concede that not because it is related to this case, but because of a... a structural intellectual problem about the extent to which whose law governs in that situation. If it's a limitations provision, we know Federal law governs when the United States is bringing a claim that it acquires in its sovereign capacity. Whether this would be regarded as a procedural restriction that the State substantive law didn't... now, whether you want to think this is substantive or procedural may affect the answer to the question... the hypothetical that you've raised. Anthony M. Kennedy: Well, can you tell me as a matter of practice if... if you know? Suppose there's a partnership which is a little murky. It's in the Cayman Islands and they're behind, but that one of the... the general partners is in California. Can you just proceed against him, do you know? Does the Revenue Service-- Kent L. Jones: Well, there-- Anthony M. Kennedy: --ever do that? Kent L. Jones: There... there is an... the uniform... in the case law, there's a discussion of situations where the partnership is known to be insolvent. You're not required to do a senseless act. You're not required to pursue and exhaust against the partnership when it's known to be insolvent. So in that situation, you have exhausted because the partnership is insolvent. Anthony M. Kennedy: And I take it in that situation... you correct me if I'm wrong... but you can't just levy on the account if the tax has not been assessed against that partner individually, but you can commence some other sorts of proceedings which would allow a subsequent levy. Or am I wrong, or is that clear? Kent L. Jones: --Well, you've brought me through... to a lot of levels of complexity, but I think the answer to the question is we... we don't dispute that you need to give a... a notice of assessment in order to collect administratively through liens and levies. That's not relevant to this case because this is a judicial collection case. Anthony M. Kennedy: Of course. Kent L. Jones: But, nonetheless, there is case law that says that when you give notice to the partnership of its liability, that's sufficient as constructive notice to the partners to permit administrative collection through liens and levies. Ruth Bader Ginsburg: Mr. Kent, if you're not right about that and you do have to have individual notice and demand to the partners, then there's a consequence other than liens and levies, isn't there, where you have whopping penalties and interest attached? I thought if you don't give notice and demand within the 60-day period, then not only can't you impose liens, but that the interest and penalties stop running. Kent L. Jones: I'm... I'm familiar with the... the concept of interest doesn't run until notice of the assessment is made, but nonetheless again, notice to the partnership would be constructive to the partners. Ruth Bader Ginsburg: But if you're wrong about that constructive notice, then you could still say, well, the statute has been extended 10 years because of the assessment. However, one might conclude that the interest stops running and that you can't use administrative collection procedures. Kent L. Jones: Well, I... I don't mean to be... I don't mean to sound like I'm retreating from that issue. I'm just... it's not presented here, and so I'm not really capable standing here-- Ruth Bader Ginsburg: Well, it would be to the extent on... if... if this thing is remanded with instructions that the assessment counts against all of them, that there would be the question remaining about the interest and penalties. Kent L. Jones: --That's... I don't... it is possible, and if the Court were to reverse and remand for further proceedings, it's possible that that issue would be raised. Ruth Bader Ginsburg: Are you... are you saying that we should maybe flag it but not decide it? Is it-- Kent L. Jones: I don't... I don't know what your practice would be. I would think your practice would be to decide the issue that's presented. You could note other issues haven't been raised, but since those issues haven't been briefed here, we're not really in a position to advise you on their proper resolution. William H. Rehnquist: --Why don't you go ahead with the issues that are presented? Kent L. Jones: Okay. Well, the point I was making was that the court ruled against us because they said that the partnership taxes had not been assessed directly against the partners. But respondents now correctly concede that there is no requirement of Federal law that a derivative or secondary State law liability to pay a tax has to be assessed before it can be collected, and that concession is plainly correct in light of this Court's decision in 1933 in the Leighton case where the Court held that a derivative or secondary liability that arises under State law to pay a tax may be recovered... and I quote... without assessment of that liability. And there are numerous cases that have applied that principle in... in related secondary and derivative liability contexts. And as... as I've already indicated, those principles plainly apply here because under the Uniform Partnership Act, which applies in California, the liability of the partner is derivative for the... and secondary rather than principal, as I've discussed with Justice Scalia. Not only is it clear from the legal structure of the UPA, but the official comments to the... of... to that act state that the liability of the partnership for partnership debts is principal and that the liability of partners is... is in the nature of a guarantor. It's secondary. It arises only when the partnership doesn't pay its own debts. Federal law also makes clear that this is a liability that attaches directly to the partnership. This is a Federal employment tax. It applies to employers because, under California law, the... the partnership is a separate and distinct legal entity. It is the employer. It pays the wages. Its payment of wages is what causes the taxes to be imposed. William H. Rehnquist: But you... you agree that it's the law of California that imposes the derivative liability on the partners? Kent L. Jones: That's the way the cases describe it. From my... and that's the way this Court described it in... in Commissioner v. Stern. William H. Rehnquist: What more do you want? Kent L. Jones: Pardon me? William H. Rehnquist: I say what more do you want. Kent L. Jones: Well, I don't want more. I'm just being finicky I guess, because to me we... the Court in Commissioner v. Stern said that these... historically these are substantive liabilities that Congress accepts from State law. And therefore, the Court applies the substantive body of State rules in... in implementing that liability. You could also think of this... and I'm not asking the Court to reconsider Commissioner v. Stern. But you can... even in light of Commissioner v. Stern, you can think of this as Federal law borrowing State law for this remedial purpose, and Congress has sanctioned that by not altering the principles that have long existed on this. The... but the... the point that this Court made in Leighton is that these principles that they apply come from State law and you don't a... actually respondents now admit there's no mechanism in Federal law to assist this... assess this sort of secondary derivative State law liability, and that's correct. That's what the Court addressed in the Leighton case. And the court of appeals in this case just misapplied those well-accepted principles. Once the assessment of the partnership taxes was made, under section 6502 the United States has 10 years from the date of the assessment to bring any proceeding in court to collect the taxes. And in the Updike case in 1930, the Court held that that 10 years applies not only to actions against the directly liable party but also to a person whose liability is derivative or secondary and arises from State law. And the Court explained that the broad purpose and broad text of 6502 applies equally in both cases because in the Court's words, in a real sense the action against the derivatively liable party is a proceeding in court to collect the tax. As the Court said in Updike, the aim in the one case, as in the other, is the same. It's to collect the tax liability. Now, in this Court respondents do not dispute that accepted understanding of 6502. Instead, they raise here a new and, indeed, a radical claim that no court has adopted and that they did not raise prior to their merits brief in this Court. What they argue now for the first time is that the Federal statute of limitations should not govern this derivative liability claim because since it stems from substantive State law, the State statute of limitations should govern it. Now, since they didn't raise that claim at any time before their merits brief in this Court... and it is a statute of limitations which is an affirmative defense... they're... they've waived the claim as too rate to... too late to raise it. But nonetheless, I think it is important to note that their claim is plainly inconsistent with this Court's decisions. For example, in the Summerlin case, this Court held that whenever the United States acquires a claim acting in its governmental capacity, that claim of the United States is not subject to a State statute of limitations because of the sovereign rights... sovereign immunity of the United States. And they applied that holding in Summerlin to a situation where what the United States obtained was a right to enforce a private note and private mortgage that the-- John Paul Stevens: May I interrupt for this question? You know, there are some State statutes of limitations that... or some States have limitations provisions that are either affirmative defenses or some are, in effect, conditions precedent to bringing an action. If California had the latter form of action, how would you decide this case? Kent L. Jones: --I think that in... in Commissioner v. Bresson where the Ninth Circuit addressed that very point, they... they were... they wrote a very useful opinion that seems to me to be perfectly correct, that the... that if it is the passage of time after the United States acquires its right that causes the claim to expire, that that is what is barred by the Summerlin rationale because the sovereign rights of the United States can't be extinguished. And so whether you think of it as extinguishing the claim or limiting the... the period of recovery, in either event what's instrumental is that the... the United States had the right at the time it obtained the claim and that the State law could not thereafter cut that right off. Stephen G. Breyer: Why not? Why... why... suppose that you have a... a bank that guarantees a debt, and the debt is Smith's debt. And the guarantee is to pay, including tax debts. That's what it says. It was a condition of the borrowing or some other thing. Now, why wouldn't State law govern the period of time in respect to which any creditor, including the Government, has to assert a... a claim under that note, let's say, or under that particular written guarantee since the liability there is a creation of State law and the State would have the right to define its contours? And after all, that guarantor is not the taxpayer. The... the guarantor's liability arises solely out of the fact that he happens to have entered into a note with a guarantor who promised to pay. Kent L. Jones: So you're talking about a... a private contractual right-- Stephen G. Breyer: Yes. Say a private-- Kent L. Jones: --that the United States somehow obtained rights under by-- Stephen G. Breyer: --Yes. Kent L. Jones: --levying, for example-- Stephen G. Breyer: Yes, yes. Kent L. Jones: --on the... on the right. Stephen G. Breyer: Yes, yes, and then I'm going to say why isn't this that. Kent L. Jones: That's... that's a... that's exactly frankly what happened in Summerlin-- Stephen G. Breyer: Yes. Kent L. Jones: --except Summerlin involved a housing program instead of the Internal Revenue Code. In Summerlin, the Government obtained a private note and enforced it, regardless of the State statute of limitations, and the Court's reasoning was that the... that the United States as sovereign cannot be subject to limitations imposed on the rights that it obtains. Stephen G. Breyer: So if I... if I enter into a promise with you and say in return for my lending, you know, whatever it is, I... I promise that I will pay your tax debts, but by the way, I don't want to pay any tax debt that isn't definite before January the 5th, 2004 or 2010. I don't want to pay anything that arises-- Kent L. Jones: It's a limit... if you're talking about a substantive limitation in the document itself, well, the United States takes its... stands in the shoes of the assignor in that situation, and we don't get a better substantive right... substantive right. Stephen G. Breyer: --Okay. So it's a substantive procedural distinction. Kent L. Jones: Well, certainly that's the way the Court has looked at it, and I-- Antonin Scalia: But you know, in... in other cases, let's say when the... when the Federal Government creates a Federal right without establishing a statute of limitations for that Federal right, State law does not govern, but Federal law looks to the... to the State statute of limitations as a matter of Federal law. I don't know why it wouldn't be the same thing with respect to a... a Federal claim. You mean there is no statute of limitations whatever on Federal claims? Kent L. Jones: --No. Well, that's the second route that the Court has used to say the State's limitations don't control, and that is, when there's a Federal limitations period that applies to the claim, then the State provision doesn't control. Antonin Scalia: Of course. Kent L. Jones: And under... under Updike, what this Court concluded in Updike was that there is a Federal statute of limitations that applies to these proceedings in court to collect the taxes, which includes the derivative claim. Antonin Scalia: Well, that... that's fine. But I'm talking about the more general proposition that... that you're... that you're defending or... or proposing that... that State law does not... never... never applies to a... to a Federal claim. Kent L. Jones: Well, it doesn't-- Antonin Scalia: I mean, a claim by the United States. Kent L. Jones: --It doesn't-- Antonin Scalia: I think it does. Now, it may not apply of its own force. Kent L. Jones: --Exactly. Antonin Scalia: But it applies because of adoption by the United States. Kent L. Jones: If the... if the Court were to find it appropriate in a particular instance to adopt a State rule, that would not interfere with Summerlin, but that would... that would... I can't think of a case exactly like that. There may well be some. But most Federal claims-- Antonin Scalia: I can't imagine our not doing it. I can't imagine our saying that, you know-- Kent L. Jones: --Most-- Antonin Scalia: --the clock keeps ticking on Federal claims forever and ever. Kent L. Jones: --Most Federal claims come within some general statute of limitations, and this is certainly a situation like that. Ruth Bader Ginsburg: Is it... is this question really academic in this case because you have not one but two Federal limitations, one, the regular 3-year period, then the extension by 10 years following an assessment? Kent L. Jones: Well, I think the Updike case makes this discussion somewhat hypothetical, and I understood Justice Scalia's question to be in that vein. Ruth Bader Ginsburg: But here, what you're relying on are the Federal limitations period. So you don't need to worry about suppose there had been no Federal limitations. Kent L. Jones: I... I don't need to worry about them, and I... but I'm only addressing them because respondents have raised them at this point in the case, and so I'm just discussing the two theories that this Court has applied in rejecting that kind of contention. William H. Rehnquist: You're saying it's doubly hypothetical because they can't raise the whole issue-- Kent L. Jones: Yes. William H. Rehnquist: --at this point anyway. Kent L. Jones: Yes, sir. Ruth Bader Ginsburg: I thought their primary position, though, was that the partners are not secondarily liable, they're primarily liable, so that they are the taxpayer and they're entitled to assessment notice and demand. Kent L. Jones: That is now clearly their primary position, and for the reasons I've already described that position can't be reconciled with the Uniform Partnership Act or with... or with the Federal law that applies to these taxes. Anthony M. Kennedy: Can you... can you tell me in the case of a corporation, if the responsible officer does not withhold employment taxes, I... I take it... I thought I remembered that... that the responsible officer is personally liable. Or am I wrong about that? Kent L. Jones: Yes. There is a statute that authorizes an assessment of that liability against a responsible officer. Anthony M. Kennedy: Ah, but you have to assess it. Kent L. Jones: It... it authorizes the assessment. That's... you know, it's interesting. There are certain types-- Anthony M. Kennedy: Can... can you proceed against the responsible officer without the assessment? Kent L. Jones: --If you have a claim based on State law or common law, and that's the reason we have a responsible officer statute is that this is a Federal claim. There isn't... unlike in the partnership situation and in the ordinary transferee situation, there's not a backup State law action. Anthony M. Kennedy: Well, if... if in the case of corporate officers, there must be an assessment, then by analogy it would seem that it wouldn't be too much trouble for the IRS to assess the partners in your case. Kent L. Jones: Well, sometimes it is troublesome, but it's not required in any situation under our understanding of the existing law. Anthony M. Kennedy: I... I thought that it was required in the... in... in the corporate case. You said it has to be assessed against the responsible officer. Kent L. Jones: Oh, I'm sorry. I thought you were talking about the partnership then. Yes. I... the responsible officers... officer liability is created by Federal statute, unlike the partners' obligation for the debts of the partnership. Anthony M. Kennedy: I'm simply wondering if... if that isn't a model, if that's what happens in the corporate instance, in this case where the statute is... is silent on the point, whether we shouldn't just assume that since it's not too much of a burden on the Government in the corporate context to require it to assess the responsible officer before the tax can be collected, that we shouldn't say the same thing here. Kent L. Jones: There is-- Anthony M. Kennedy: I'm just-- Kent L. Jones: --I understand. But the responsible officer liability is... is really a radically different concept. It only... it only arises when that officer had knowledge of the fact that the taxes weren't being paid as they accrued and willfully failed to pay them and... and was responsible, had the responsibility to pay them. It is a... it is a malfeasance claim, whereas the derivative liability claim is just under State law, you are liable as is the partnership, and we can enforce that State law. There's another example-- Anthony M. Kennedy: --There's a-- Kent L. Jones: --where the similar thing happened. 3505, which is the lender's liability. There was no lender's liability for employment taxes that the Court discussed in the Jersey Shore case. That liability didn't have a... a common law precedent, and so Congress created the liability because they saw a specific problem where lenders were allowing or in... in effect, helping employers evade employment taxes by loaning them money from which they paid wages but didn't pay taxes. And so Congress created this separate statutory scheme. But respondents are correct in their concession that there is no mechanism under Federal law for assessing the derivative State law liability of a partner for the debts of the partnership. And so as the Court held in... in Leighton, we can proceed without assessment against them to enforce that liability. Now, I do want to also mention the... the citations that respondents make to section 6303. That section appears in the portion of the code that addresses administrative collection through liens and levies, and it states that the Secretary is to give notice of the assessment to any person liable for the tax. The cases that have interpreted and applied that statute, which stem from 1954, have... have concluded correctly that that statute applies only to administrative collection through liens and levies and has no application to judicial collection actions. And there's a... a sound historical explanation for that, and that is that prior to 1954, there were two independent routes for collecting taxes. The Secretary was authorized by the code to bring a judicial collection suit, but there was a separate officer known as the collector of revenue for each district. And the collector of revenue was, by the code, authorized to do the administrative collection through liens and levies. And the predecessor of 6303 had said that the collector is to give notice of the assessment and make demands for payment. And it was well established that that applied to his actions in administrative collection and had no application of the Secretary's independent authority to bring a judicial collection suit. In 1954 in revising the code, Congress eliminated references to the collector in the code, placed the Secretary in charge both of the... of judicial and administrative enforcement and changed the predecessor language of 6303 from saying the collector is to give notice to saying the Secretary is to give notice. But in doing so, Congress did not mean to change... and the courts that have reviewed this have correctly concluded did not change... the fact that this notice of assessment requirement applies only to the administrative collection area, has no application to judicial collection suits like this one. Ruth Bader Ginsburg: --Are you conceding then that there could be no liens and levies against the partners here because there was no notice and demand-- Kent L. Jones: I-- Ruth Bader Ginsburg: --individually to them? Kent L. Jones: --I don't think the record discusses whether there was notice to the partnership. Ruth Bader Ginsburg: No, no. To the partners. Kent L. Jones: No. Ruth Bader Ginsburg: You just explained these two different routes. Kent L. Jones: Yes. Ruth Bader Ginsburg: And you said that this is a judicial collection proceeding. Kent L. Jones: Yes. Ruth Bader Ginsburg: So the other doesn't apply. So I'm asking you if you are now making the concession that those words... what are they... each person liable for unpaid tax, would stop you from using the administrative collection route because you didn't give notice and demand individually. Kent L. Jones: Let me... I can't say what we did or didn't do in notice because there's nothing in the record on that in this case because administrative collection isn't involved in this case. Ruth Bader Ginsburg: Well, let's assume you gave notice and demand only to the partnership. Kent L. Jones: Okay, let's assume that. If we gave notice and demand to the partnership, what we would be authorized to do is clearly under 6321 and... make a lien and levy against any assets of the partnership. And then as I said, although... the... the cases are also perfectly consistent that the notice to the partnership is valid as constructive notice to the partners. And so, for example, if we have a partnership employment tax liability from Smith Construction and the two partners are Bob Jones and Bill Wilson, notice of the assessment to the partnership is valid as notice to its two partners. And so our lien arises, if they don't pay the tax, but if a third party creditor is out there, First National Bank, the First... our notice to the partnership may not be notice to the First National Bank. And so in a lien contest we might not have the prior lien vis-a-vis this other party, but vis-a-vis the two partners, the cases say that our notice is valid for 6303 purposes to them because, well, of course, a partnership only acts through its partners and notice to one of them or to the partnership is valid, constructive notice to all the others. There is no case inconsistent with that conclusion, but again, it's plainly not presented in this case and we would not ask the Court to address it. There's no need for it to. This is just a judicial collection case. The only issue that is really before the Court is whether we have to give notice... I'm sorry... whether we have to assess the individual partners to collect the State law derivative liability. And for the reasons I've described, that the decision below is incorrect on that and... and should be reversed. And I would like to reserve the balance of my time. William H. Rehnquist: Very well, Mr. Jones. Mr. Haberbush. David R. Haberbush: Mr. Chief Justice, and may it please the Court: We've heard some interesting arguments, and I'd like to address the history here of the way in which this alleged derivative liability is imposed upon the partners. We contend that the partners-- William H. Rehnquist: Now, the Government says you... you did not raise what is now your principal argument until your merits brief. Do you agree with that statement? David R. Haberbush: --Your Honor, no, I don't. This case has always been about statutes of limitation. We were addressing, in fact, a argument raised in the merits brief by the Government. If the Court will note, at page 5... I'm sorry... page 12, footnote 5, this specific question is addressed by the Government stating that it's a Federal not a State statute of limitation that comes into play. And our portion of the brief is simply a reply to that. Antonin Scalia: Wait. It seems to me it's... it's... the burden is on you to make the claim that a State statute applies, and you never claimed that any State statute applies. Now, the Government here, out of an excess of caution or maybe to explain the whole situation to us, puts in that footnote, but that doesn't create a claim on your part that the State statute governs. Did you ever assert that... that this matter was governed by... by a State statute of limitations until your merits brief? David R. Haberbush: Yes, we did in the courts below and our briefs below. Antonin Scalia: You asserted that it was governed by a State statute of limitations. David R. Haberbush: Your Honor, what we argued was that if the Federal statutes did not apply, section 6303 requiring notice and demand, if these partners are not taxpayers under the Internal Revenue Code, then State law would govern. And yes, we did raise it below. William H. Rehnquist: Did the court of appeals touch on it? David R. Haberbush: The court of appeals did not need to touch upon it, because the court of appeals felt and decided that these partners are taxpayers under the Internal Revenue Code. And that's the precise question I would like to address. John Paul Stevens: Did you raise the statute of limitations point in your pleadings in the district court? David R. Haberbush: In the United... this originated in the bankruptcy court, so the district court-- John Paul Stevens: Well, I mean in the bankruptcy court. David R. Haberbush: --Your Honor, we did. We raised it both in terms of the statute of limitations under section 6303 and under State law. David H. Souter: Did you raise it as an affirmative defense under State law? David R. Haberbush: Well, we objected to the proof of claim which is akin to an answer, and yes-- David H. Souter: And one ground of your objection was under State law it's barred? David R. Haberbush: --Our objection was a fairly generic objection in all honesty-- Antonin Scalia: So we're talking about did you ever say this claim is barred by... it... it is too late under this State statute of limitations, citing the State statute of limitations? David R. Haberbush: --Yes, we did. Antonin Scalia: Would you provide us with-- Antonin Scalia: --Where can we find that in the record? Antonin Scalia: Where will we find that? David R. Haberbush: I believe you'll find that at the... the district court level after the bankruptcy court. Antonin Scalia: Well, isn't the place to raise it in the bankruptcy court? I mean, that's where your pleadings... that's where your responsive pleadings were filed. David R. Haberbush: If indeed it is an affirmative defense, yes. Our objection to the claim was this was not an enforceable claim under law, State or Federal, and our reason for it was barred by the limitations periods. Anthony M. Kennedy: As a Federal-- Anthony M. Kennedy: --Under California practice, I assume statute of limitations is an affirmative defense? David R. Haberbush: Yes, Your... Your Honor, it is. We, however, believe that this case does not be controlled by State law, but rather by Federal law. A partner's liability for the debts of a partnership may arise under State law, and this Court has noted in the case of United States v. Kraft that State law defines the rights as between the parties, but the manner by which it may be collected, the tax itself or the claim, is governed by Federal law. And that is really the heart of what our argument is. There is no specific Internal Revenue Code provision that makes a partner liable for a partnership debt. What the Government in this case does is it relies specifically upon historical cases that stem from old section 280, which is adopted as section 6901 of the Internal Revenue Code, whereby assessments may be made against transferees, donees, and fiduciaries, and the cases interpreting those statutes basically find that there is a derivative liability with a coterminous statute of limitations. Stephen G. Breyer: This would be an odd State law, wouldn't it? Imagine that I guarantee a debt or suppose a partner is like a guarantor. And suppose that the primary... person primary... primarily liable is in litigation with the debtor... the creditor, rather. And because of delays and so forth, it takes about 15 years to resolve this litigation. I've never heard of a guarantor who wouldn't become liable at the time the thing is final and that the... he just becomes... I mean, how does it work? I would have thought a guarantor is liable for the debt the debtor owes. How does the statute work, the State statute? David R. Haberbush: Your Honor, we believe the State statute is... is one that does not require exhaustion of remedies as against the partnership. Stephen G. Breyer: It has nothing to do with exhaustion of remedies. Stephen G. Breyer: I'm... and I'm talking about States... the State insofar as it sees the partner as a guarantor of the liability that is created by a different entity, namely the partnership. And I'm asking if under State law of California, wouldn't it be the case that if he's a guarantor and you get the statute of limitations on a matter to determine liability extended, that the guarantee also extends. David R. Haberbush: That would-- Stephen G. Breyer: There's no State law that says you have to sue the guarantor before the liability that he's guaranteeing is determined. David R. Haberbush: --That is correct. Stephen G. Breyer: All right. If that's correct, what are we arguing about? David R. Haberbush: What we're arguing about here is that this is not a suretyship or a secondary liability-- Stephen G. Breyer: Yes, yes. You're back to your question of whether under partnership law in fact this is a guarantor or the equivalent or a surety. I understand that argument, but it sounds to me as if that argument is resolved against you, this statute of limitations argument is a serious red herring because it won't matter. David R. Haberbush: --Well, unless Federal law controls. Stephen G. Breyer: Right. David R. Haberbush: Unless these parties are taxpayers under Federal law, in which case-- Stephen G. Breyer: No, no. If the primary argument, which you want to argue, that they're taxpayers or that they are primarily liable, you win it or you lose it. If you win it, you win. If you lose it, your statute of limitations argument adds nothing. David R. Haberbush: --I think not. Stephen G. Breyer: That's my... that's what I'm thinking. David R. Haberbush: I think not. I think we win, and let me explain why. It has nothing to do with limitations periods. It has nothing to do with State law governing guarantees. It has to do with the way this Court is asked to define this particular claim in this particular case. Is it a tax claim or is it a claim which is derived from the partnership liability? In other words, is it a tax debt or is it a debt because they're liable for a debt of the partnership so that it loses its nature as a tax claim? If that's the case, this is a bankruptcy case. Tax claims in bankruptcy have priority over other claims under section 507(a) of title 11 of the United States Code. Those claims too are not dischargeable if they're a tax claim under section 523 of title 11. So if the Court determines this is nothing more than a guarantee pursuant to State law and not a tax claim, then this debt will be discharged in this bankruptcy case. Antonin Scalia: Do you have... have any cases for that, that a tax claim loses its character as a tax claim when relief is sought not against the person primarily liable but against somebody derivatively liable? It seems to me it's still a tax claim. David R. Haberbush: No, Your Honor, we do not have authority for that. However, if it is a tax-- Antonin Scalia: I wouldn't expect you to find any. David R. Haberbush: --However, if they are liable for the tax, this Court has already stated on a number of occasions, including the most recent case of U.S. v. Kraft, someone who is subject to the tax is someone who pays it, someone who is liable for it. These parties are liable for the tax. They are subject to the tax under section 7701(a)(14) of the Internal Revenue Code, and therefore they are taxpayers. Once they are taxpayers, that invokes the provisions of section 6501 requiring assessment or suit within 3 years. We don't claim that assessment is the only method. We claim assessment or suit, which is consistent with the history of the cases, and that's a 3-year limitation period as to these-- David H. Souter: No, but you say that they're taxpayers because they're partners, and therefore they... and... and that's why the... their... their right to an assessment can be claimed. But by the same reasoning that you follow, if they are taxpayers because they are partners, why isn't notice to the partnership notice to the partners or assessment against the partnership assessment against the partners? Why... why do you, in effect, make a metaphysical distinction in the latter case but not in the former? David R. Haberbush: --Well, Your Honor, I don't think that we do. I think that the argument that there is constructive notice merely because one is a partner creates notice to... notice to the partnership is notice to the partners. There is no controlling case on this idea, and that would be too a question I think of State law, whether notice to a partnership is notice to the partners. And we've clearly cited to California law that says you must commence a separate suit against the partner in order to obtain a judgment against it. There is no California law that says that by filing a suit against the partner, that's sufficient for due process purposes of creating notice to the partners such that-- William H. Rehnquist: We don't ordinarily decide questions of State law here. I think we would generally feel perhaps the Ninth Circuit knows more about California law than we do. David R. Haberbush: --Well, certainly that's true. And that's-- William H. Rehnquist: I said, we would think. [Laughter] David R. Haberbush: --Well, thank you. And... and yes, this Court ordinarily does not address questions of State law. We think that this is a Federal statutory interpretation. Either these persons are taxpayers liable for a tax or they are not taxpayers liable some... for something that is not a tax. Stephen G. Breyer: The last part. They are for... they are not taxpayers in the meaning of the statute who are liable for something that is a tax. And I don't know why that wouldn't be. David R. Haberbush: Well, Your Honor-- Stephen G. Breyer: And State law makes them, in effect, guarantors of debts. This is a tax debt. So they're guarantors of the tax debt. So, therefore, they're liable for the tax or sureties or some other equivalent word. David R. Haberbush: --All of the cases referred to for the coterminous statute of limitations, which is what would be suggested would be applied here if in fact they are liable for this tax debt and therefore the provisions of the Internal Revenue Code apply, are all cases where specific enabling provisions created the liability of those persons. Under section 6324, certain persons are made personally liable. Under section 6901, certain persons may be assessed with taxes as transferees. And those specific statutes have provisions in them that say that the assessment and collection and enforcement of the tax... this is 6901 and its predecessor, section 280, where the collection assessment and enforcement of the tax is subject to the same provisions and the same limitations as the tax itself. So it's not surprising that you have cases like Leighton and Updike where the statute of limitations set forth in what is now 6502 applies to them because they're subject to the same limitation periods. There is nothing in the Internal Revenue Code that sets forth a limitation period as to partners. If one adopts the guarantor analogy, then this is conceivable a case where any number of years could pass where the partners would become liable. Your... I would point out the Court's record in the joint appendix. At pages 100 and 102, we have the proofs of claim that were filed in these bankruptcy cases, and these proofs of claim on their face show that the Government in this case is not simply filing a claim as though it were a lawsuit against these partners. These proofs of claim were filed as secured claims in both of the two cases that are before the Court. Secured by what? Motor vehicles and real estate. So the Internal Revenue Service is taking the position clearly, unequivocally that it can enforce this debt by the summary collection process which has been called awesome and... and super powers that are not available otherwise. Ruth Bader Ginsburg: Whether they could or not, they're saying that the question here is a judicial action. David R. Haberbush: Well-- Ruth Bader Ginsburg: And... and so maybe they're wrong and maybe they're right about that, but that's not before the Court. David R. Haberbush: --That's not... that may not be before the Court, but the Government has taken the position the only way, the sole and single way, it can collect taxes is to file suits against partners. We would suggest that if the Court were to permit assessment, rule that they are taxpayers subject to assessment, subject to suit, that that would enhance collection. It would encourage partners at the earliest opportunity to cause their partnerships to pay taxes. It would cause partners at the earliest opportunity to pay the taxes. In this instance, you have proofs of claim-- David H. Souter: It... it would also cause an enormous number of assessments to be made that ultimately would have no... no use. I mean, the... the amount of administrative assessing going on would... would be staggering. David R. Haberbush: --Well, the amount of suits could be staggering as well to collect these kinds of taxes. Stephen G. Breyer: What is the problem? Suppose... I'm... I'm failing to see it but maybe... suppose it's true that what the Uniform Partnership Act says is true. Partners are, quote, in the nature of guarantors, end quote, rather than principal debtors on the debts of the partnership. So let's suppose they're like guarantors. I would have thought that State law was something along the lines of a guarantor must be sued in order to collect a... a guaranteed debt within a period of time after it becomes determined that such a debt exists. Now, I would think that that's how the normal State law runs. So unless there's something Federal to the contrary... and by the way, if there is, they have 10 more years. But unless there is something Federal to the contrary, there's no problem with bringing this case. So the only question in this case is are they in the nature of guarantors. And I'd be interested... well, A, I'm interested in your comment on what I just said, and I'm also interested in the comment of why they're not guarantors. David R. Haberbush: Very well. Here the Internal Revenue Service has filed proofs of claim in the bankruptcy court not for the debt of the tax but for the tax, for the penalties, and for the interest. Guarantors under California law are liable for the debt and perhaps the interest, but not for the penalties. The Court will note that these proofs of claim are approximately three to four times as much as the amount of tax that was originally assessed against the partnership in the initial instance. There is nothing in the record to suggest that these partners had knowledge or notice of these taxes at any time before these proofs of claim were filed. Now, under California law, if you have a guarantor, the guarantor knows of the liability that that guarantor is offering surety for. That guarantor knows that that liability exists. That guarantor can encourage the principal party to pay the tax or the debt in question. Here the policies that are urged by the Government do not encourage collection of this-- William H. Rehnquist: Mr. Haberbush, do you defend the decision of the Ninth Circuit in this case? David R. Haberbush: --Yes, we do. William H. Rehnquist: That in order to collect against the partners, an assessment would have to be made against them? David R. Haberbush: No, not within that specific limitation. We think that an assessment or a suit should be brought within the statutory period-- William H. Rehnquist: Well, I thought... I thought the reasoning of the Ninth Circuit was that you couldn't collect against the partners unless you assess them too. David R. Haberbush: --To that extent, the opinion is wrong for the reason that it is a well-held proposition that suit or assessment may be brought under section 6501 within the 3-year period, so that it's not exclusively assessment that's involved. And this Court and other courts, I believe, have... have ruled that assessment is not a prerequisite to collection. However, some action must be taken within the statutory limitations periods. John Paul Stevens: And the filing of a claim in a bankruptcy court is insufficient because? David R. Haberbush: It's untimely. It is not done within the period of time-- John Paul Stevens: So this is simply a statute of limitations case. David R. Haberbush: --That's our position. Yes, Your Honor. It is simply a statute of limitations case. The Government has contended that this is a tax governed by the Internal Revenue Code. The liability may be created by State law, and this Court has consistently said while liability may be... be created by State law, the enforceability of that liability is a subject of Federal law. The Federal laws provide for 6303 notice and demand. They provide for... 6501 provides that assessment must be made. The... the Government suggests that there can-- Sandra Day O'Connor: Mr. Haberbush, would you be able, after the argument, to furnish the Court with the places in the record available to us where it shows that you raised the State statute of limitations issue below? David R. Haberbush: --Yes, I can. Sandra Day O'Connor: Thank you. David R. Haberbush: Yes, I can. Ruth Bader Ginsburg: Why shouldn't an assessment against the partnership be good as to the partners as well? I mean, the whole difference is that you'd have to add the... the names of the individual partners. I mean, the assessment itself is something in a file in some building. Right? David R. Haberbush: Well, the assessment is the notation or recording of the liability. However, section 6203 says that to be a proper assessment, it must record the liability of the taxpayer and we, of course, say that the taxpayer also includes the partners. And yes, there could be a single assessment naming numerous parties. There are examples of that. For example, a husband and wife are jointly assessed. An assessment against a husband or a wife independently is not an assessment against the other. So there are multiple assessments that are capable of being made under the code. There are numerous other instances where assessments are made. 6901, for example, assessment-- Ruth Bader Ginsburg: Is it... does it... would it matter if in fact the partners knew... had received the... I assume that the notice and demand would come to the partnership. This is a small partnership. There were what? Four partners involved? If they had actual notice, would that make any difference? David R. Haberbush: --Your Honor, that might make a difference. We... we would contend that it does not make a difference. We have cited to cases... and I don't recall them right off the top of my... my head at this moment... where the assessment... in fact, that was Cool Fuel, Inc. out of the Ninth Circuit where the assessment actually has to be received and made. It has to name who the taxpayer is. Marvel v. the United States. While the taxpayer there was named as a partnership's name, the individuals' Social Security numbers, taxpayer identification numbers, were on that... that assessment, and that was found to be good as to those persons even though they were not individually named. Ruth Bader Ginsburg: But certainly they had actual notice. Your big due process objection that you make would not... would... would be very thin, would it not? David R. Haberbush: I don't disagree with that, Your Honor. There is nothing in the record below where there is... that issue has been addressed. There is no facts that were derived at the trial of this matter where that was addressed. There is nothing in the record-- Ruth Bader Ginsburg: But you addressed it in your brief. You said if they didn't get individual notice and demand, that would be a violation of due process. David R. Haberbush: --Yes. It is not before the Court, however, whether they did or didn't, and there's nothing in the record suggesting that they did get such notice. That's why the... the Government relies so heavily on its constructive notice theory, although starkly absent from that argument is any California law to support that idea that notice to a partnership is constructive notice to its partners. Turning back to the... the idea of the... the assessment in this case, the... there are striking examples throughout the brief of the Government, although the Government contends that it is not able legally to assess partners, there are no less than 12 cases cited in the briefs, 10 of which were cited by the Government, in which summary collection process was instituted against partners, and in... in any of those cases there was an assessment. In fact, the one case that's cited by the Government, the... the United States v. Wright... that's the case which came out of the Seventh Circuit that the Government contends is in direct conflict with the Ninth Circuit case in this instance is one where the United States District Court in its findings found that the partners were assessed. And it's not surprising therefore, that the Wright court found that there were-- Ruth Bader Ginsburg: It said that... but I thought Judge Easterbrook said that that was irrelevant, that there might have been a fact question about that whether there were individual assessments. But in any case, the court's rationale had nothing to do with that. David R. Haberbush: --That is correct. However, the district court did find that there were assessments. The Seventh Circuit found that that was irrelevant to the... the determination. However, it is entirely consistent with the idea that in that case there were coterminous statute of limitations. For the reason that assessments were made within the statutory period of time... that was still within the coterminous periods... then the collection. The question was whether the 6502 allowed the collection against the partners who were jointly liable with the partnership in that instance. The statutory period of time allowed to the partnership, because it had been tolled during a bankruptcy, the court found coterminous statute of limitations, relying on the Updike case as its example. We... we believe that the collection of taxes would be enhanced by adopting the position that we have taken in this case. We believe that requiring the filing of lawsuits in every instance where partners are liable for the debts of a partnership which has failed to pay its taxes and which may or may not be out of business, is simply a policy which would have litigation that is not required. If the partnership is liable for the tax and this Court were to find that the notice provisions of 6302 and the provisions of 6501 allowing suit or assessment within 3 years applies, that that would enhance the collection of taxes. We believe that... excuse me... we believe that by doing that, the tax will be paid at the earliest possible time. Interest and penalties, such as have accrued in this case, would not accrue because the partners would be encouraged at every point and at every spot to cause their partnership to pay or to pay the tax themselves. The Government is not in the business of banking tax claims, if you will, allowing them to accrue penalties and interest and thereafter, for who knows how many years, potentially as many as 3 plus 10, and if suit is filed within the 10 years under 6502, the... the term for enforcing a judgment. So it could be 20-25 years that a partner could be out there liable for the tax during which penalties and interest continue to accrue, and then finally one day maybe that partner or that partner's estate or the partner's beneficiaries of the partner's estate might become liable for this tax. We believe that by filing the tax... by filing an assessment at the earliest possible opportunity against the partners, this would encourage tax collection. Ruth Bader Ginsburg: Nothing would stop a partner from paying the tax. David R. Haberbush: If the partner knows, that is correct. If the-- Anthony M. Kennedy: Isn't it reasonable to assume most partners know what's happening in their business? David R. Haberbush: --I don't know that it's unreasonable to assume that, but I suppose it is reasonable. However, there are partnerships and there are partnerships, and some partnerships have managing partners who are actively involved in the business of the partnership and-- Anthony M. Kennedy: Yes, but I... I would think, by and large, most partners know what's going on. I mean, certainly there are exceptional cases, but certainly that's not typical. David R. Haberbush: --Unfortunately, I'm only involved in my law partnership and I know what's going on there. I've not been involved-- Antonin Scalia: Maybe you shouldn't be a general partner if... if you're not prepared to know what's going on. It's pretty risky. I mean, that's... that's the responsibility you assume when he... it only applies to general partners. It doesn't apply to limited partners. David R. Haberbush: --That's exactly right. Antonin Scalia: So don't become a general partner if you're not willing to know what's going on in the partnership. I... I thought that's the deal. David R. Haberbush: Well, Your Honor, I don't know whether that-- Antonin Scalia: That's what it means to be a general partner. You're... you're going to be liable for what the partnership does. So you better pay attention. I... and you're saying this is unjust somehow? David R. Haberbush: --Well, yes, it is, Your Honor, for the reason that does that mean that every partner has to go through every single piece of mail that enters the partnership and be familiar with every single thing that occurs? Anthony M. Kennedy: No, but when you accumulate tax liabilities of several hundred thousand dollars, they ought to find that... be able to find that out. David R. Haberbush: Well, Your Honor, these are over a number of quarters. These were not all assessed at one time. Anthony M. Kennedy: Which is all the more reason they should have known about it a lot earlier. David R. Haberbush: Well, husbands oftentimes hide things from their wives who are a joint taxpayer as well. Ruth Bader Ginsburg: But we're talking about a partnership that has not paid... what was it... FICA and FUTA taxes. Surely, the partners were aware that they were not paying the taxes that were due year after year. David R. Haberbush: There's nothing in the record that suggests-- Antonin Scalia: Who was responding to these letters from the Government? The secretary? David R. Haberbush: --Your Honor-- Antonin Scalia: I mean, does she take it in to... to her boss who was presumably one of the general partners and say, hey, you know-- David R. Haberbush: --If it's a-- Antonin Scalia: --the Government says we owe a lot of money. David R. Haberbush: --If it's a managing... if it's a managing general partner, I assume that that's the case. If in fact the partnership had ceased its operations and these notices came afterwards, who knows who received the notices. I don't think that the law imposes a burden upon every single general partner to look at every single bill and piece of paper that comes into a partnership. Anthony M. Kennedy: No, but you shouldn't rely on the United States Government to tell you what you... how your financial affairs are coming along and be the primary source of information. David R. Haberbush: That may be so, but if the... if the Government were required to do so, partners would at every point in time be encouraged to cause the partnership to meet its financial obligations. Antonin Scalia: It doesn't place that kind of a burden on the partners that you're talking about. They're entirely free not to read the mail. David R. Haberbush: Well, that's... that's correct. Antonin Scalia: But... but the problem is they're going to be liable for whatever debts are incurred by the partnership if they don't do it. That's the only burden imposed. David R. Haberbush: Well, Your Honor, and looking at burdens there is no... there is no insignificant... excuse me. It's not a significant burden to place upon the Government to simply send another notice to the partners regarding their derivative liability for these claims. David H. Souter: And it's not a very significant burden to a partner to say you better make sure they're paying the taxes. David R. Haberbush: Well, of course. However, there... there have been dishonest partners, and the cases that I cite-- David H. Souter: You better be careful who you form a partnership-- David R. Haberbush: --Well, yes, and there are cases cited in the briefs that say exactly that. However, if... if the policy is to collect taxes and collect them promptly, then that is encouraged, rather than filing suit against partners, by a simple assessment sent in the mail to the partners. If there is nothing further-- John Paul Stevens: --Does an assessment affect your credit rating? David R. Haberbush: --Yes, it does. It does. John Paul Stevens: So... so you want... all right. William H. Rehnquist: Thank you, Mr. Haberbush. David R. Haberbush: Thank you. Speaker: Mr. Jones, you have 5 minutes remaining. Kent L. Jones: Thank you. At page 3 of respondents' brief on the merits, they say... and I quote... if respondents are secondarily liable for the partnership taxes, then the Ninth Circuit's ruling that the IRS must assess respondents to collect the partnership taxes is incorrect. It is clear to us that there is... this is a secondary derivative liability that partners have under State law. I didn't hear respondents give any explanation of why that isn't so. Given those two facts, then this Court's holding in Leighton seems clearly applicable, which is that we don't have to assess a derivative State law liability to bring suit to recover upon that liability. Now, respondents say, well, somehow that holding is influenced by the fact that transferee liability is provided in 6901 of the code. It's interesting that in... in the Leighton case what the Court held was that the 6901 transferee liability is a supplementary remedy that did not displace and, indeed, left in place the right of the United States to bring its suit upon the derivative State law liability without assessment. So the... the principle that we draw from the Leighton case is not dependent on any of the specific statutes that address specific types of... of assignments of transferees. In fact, it's utterly independent of that, which was the very issue the Court decided in Leighton. Given that and... and given that there's a derivative sub-secondary liability, we can recover against State law. Then the only other question is, well, what statute of limitations applies to that, which the Court held in Updike that it's 6502 which applies both to the direct liability and the derivative liability. Stephen G. Breyer: See, that's what I'm really wondering about. I mean... but... but I mean, A, they may have not have raised it below. B, it's not within the scope of the question. C, it may not make any difference because the State and Federal may give you enough time anyway. But if you do have to get to it, I'm... I'm a little worried about it because I don't... I don't really see why it should be Federal. Kent L. Jones: The reason it should be Federal is because all of these actions are designed, as the Court stressed in Updike, to collect the tax. We have different remedies. Congress could Federalize all of this. Congress could write a statute that said, you know, you can bring suits for derivative liabilities and that those suits will... specifically subject to 6502. And what the Court noted in Stern was that Congress hasn't done that because the Court has consistently applied State law to permit such tax collection to occur. And... and so that's why Updike has got to be right because this is a strong Federal interest in collecting taxes, not to be too big about it, but I mean, this Court has noted that the collection of taxes is the lifeblood of Government. This is as sovereign a claim as we have, and... and because of that, we need to have a uniform statute of limitations, which Congress has provided under 6502. If... if we were left to the haphazards of State law, we would certainly want Congress to... to address that and correct it, but they don't need to correct it because since 1930 in the Updike case, the Court has explained that 6502 is broad enough to cover both types of... of judicial collection proceedings. In the Court's words, the action against derivatively liable party is in every real sense a proceeding in court to collect the tax, and that's the... that's the statutory language. And... and I... there has been no contention that that's not a correct interpretation of 6502. I do not know what references respondents may have in mind to arguments they raised under State statutes of limitations before. We're not familiar with those. The statute that's referred to in their merits brief is a specific State statute. We're not aware that that statute was ever cited before by the parties in this case, but even if it was, it seems to us that the reasoning of the Summerlin case and... and of Updike, which is... there's already a Federal statute... should control that question and-- Ruth Bader Ginsburg: Mr. Jones, why isn't Mr. Haberbush right at least when he says everybody would be better off if you went ahead and listed the partners as well on the assessment and gave them notice and demand? Then there would never be any hassle of whether you could use both remedies, administrative and judicial. Kent L. Jones: --I think it's a question for Congress what's... you know, what makes everybody better off. And what Congress has said is that we can assess these taxes against the employer. The employer under State law is a separate and distinct legal entity known as the partnership. Ruth Bader Ginsburg: Do you think you're impeded that you have no authority to give the partners notice individually? Kent L. Jones: We... well, we have authority to give them notice of an assessment and collect from them administratively, but in terms of, if you will, making an assessment them directly, we're supposed to assess the party whose subject to the tax. William H. Rehnquist: Thank you, Mr. Jones. The case is submitted.

William H. Rehnquist: You may proceed whenever you are ready, Mr. Etzweiler. Larry R. Etzweiler: Mr. Chief Justice, and may it please the Court, we are here today asking this Court to overturn a decision which threatens grave interference with state grand jury proceedings. It is our concern that the lower court's opinion will encourage disgruntled subjects of state grand jury investigations to file 1983 suits in the hopes that they can sidetrack the state grand jury process or obtain discovery under liberal civil discovery standards which are not available in the criminal context. I will briefly summarize the facts. Petitioners in this case are all state law enforcement officers who have been sued in a 1983 action requesting both injunctive relief and money damages. The petitioners executed a search warrant issued by Judge Lenox, an assignment judge in New Jersey who supervises the state grand jury. At the time of the execution of the search warrant there was a dispute. The plaintiffs claimed that the state was not leaving an adequate inventory to explain what had been taken. And the plaintiffs accordingly telephoned Judge Lenox and obtained from Judge Lenox an order that all of the evidence that was being taken should be sealed in evidence boxes pending judicial resolution of the inventory problem. Also at the time of the execution the state issued three state grand jury subpoenas upon the plaintiffs, two of which the plaintiffs complied with, and a third of which and also a fourth subpoena which was issued later, the plaintiffs successfully moved to quash, again before Judge Lenox. At a later date in an attempt to resolve the inventory dispute the plaintiffs came to the division of Criminal Justice in Trenton, went through the evidence with a court reporter to take an inventory, and in the process of doing this came upon evidence which the plaintiffs claim was being retained illegally by the state in that their Fourth Amendment or attorney-client privileges or work product privileges were being violated, and accordingly, in view of their complaint, the state again resealed this evidence, not the entirety of it but just three boxes of it pending judicial resolution of this question which the state sought by an order to show cause again before Judge Lenox compelling the plaintiff to explain why this resealed evidence should not be unsealed. At that proceeding the plaintiffs relied upon attorney client and work product privileges. The plaintiffs filed suit. They did so after the motion to quash and after the first partial unsealing but before the show cause order. The District Court in viewing these proceedings concluded that with respect to the equity portion of the lawsuit, that is, with respect to the plaintiff's claim for an injunction for the return of property, that these proceedings showed that the Younger abstention doctrine should apply, and accordingly the District Court dismissed the equity portion. With respect to the damages portion, the court concluded that the pendency of the damages action would substantially impede the state's criminal investigation, and it also dismissed this portion of the suit. The plaintiffs appealed to the United States Court of Appeals for the Third Circuit. The Third Circuit in viewing these proceedings concluded that the District Court erred, concluding that these proceedings were not adequate to invoke the Younger abstention doctrine, and remanded the matter to the District Court for a hearing on the merits of the plaintiffs' request for injunctive relief. With respect to the damages portion, the Third Circuit concluded that even if the Younger abstention were applicable, the District Court would have no discretion to dismiss and it would only be allowed to stay the damages claim pending the Younger absention proceedings. We submit that the Third Circuit erred-- William H. Rehnquist: Mr. Etzweiler, some time in your argument are you going to address your opponent's claim that the case is moot? Larry R. Etzweiler: --I wasn't initially intending to, but I will be happy to entertain questions on that question. William H. Rehnquist: Well, I don't know that I have any questions. I was just... you are going to leave it to your brief, basically. Well, I have a question, if I may. What difference will it make whether we just dismiss the case or in effect adopt Judge Adams' position in the Third Circuit? Larry R. Etzweiler: With respect to the damages claim? John Paul Stevens: Well, is basically what is at issue, what is your argument here is whether the damage claim should be dismissed? Larry R. Etzweiler: Well, we are arguing both that the District Court has discretion to dismiss the damage claim and also that the District Court was correct with respect to the Younger proceedings on the injunctive claim. John Paul Stevens: Why do we have to fight about the injunction now, when, as I understand it, they no longer seek injunctive relief, and everybody agrees you can fight these issues out in the state court? Larry R. Etzweiler: They have agreed that they would amend the complaint. They haven't yet done that. Also, one of the points is, there is currently allegations of criminal conduct which has resulted in the issuing of state grand jury proceedings again with respect to these plaintiffs. I guess what I am trying to say is that this issue can come up again before them. John Paul Stevens: But involving the same parties? Larry R. Etzweiler: Involving the same parties, yes. Let me see. Antonin Scalia: Is there some likelihood that is going to happen? Larry R. Etzweiler: Well, that... I can't-- Antonin Scalia: It can, but is it any more likely to happen to them than it is to anybody else walking around? Larry R. Etzweiler: --There is an ongoing criminal investigation going on. Subpoenas have been issued. I, of course, am not at liberty to divulge what has happened in the course of the state grand jury proceedings, but-- Antonin Scalia: You say they haven't dismissed their complaint yet. Is it clear that they can dismiss their complaint when the proceedings are up here? Is there anything they could have done beyond saying to the appellate court, we no longer have this claim? Larry R. Etzweiler: --What they have said is that if this Court will dismiss the claim as moot, we will... if this Court will dismiss the petition as moot, we will amend the complaint to delete our request for injunctive damages. Antonin Scalia: What more could they have done? Can you and amend a complaint when the proceeding is on appeal? Can you go into the court of first instance and say, even though this whole proceeding is under the jurisdiction of another court, I want to amend my complaint? Larry R. Etzweiler: I don't know, Your Honor, but there is another factor, and that is that not all the plaintiffs have been indicted. The issue still remains in live controversy, for example, with respect to Mr. James, who hasn't, as I understand it, agreed to dismiss this claim with prejudice. He could come back later on the same claim. Also, this type of question-- Antonin Scalia: Mr. James is not a party. Larry R. Etzweiler: --Yes, he is, Your Honor, He is one of the respondents, and he is also a party who has not been indicted. Not all the plaintiffs have been indicted. Byron R. White: xxx agreed not to seek an injunction? That is what-- Larry R. Etzweiler: I think they have agreed to amend their complaint if this Court will dismiss the case as-- Byron R. White: --Both the indicted and the unindicted. Larry R. Etzweiler: --I don't know if they have agreed to do so dispositively on the merits and not come back into court and petition-- Byron R. White: Yes, but they are all in the same position, all of the respondents. Larry R. Etzweiler: --Well, they are not quite all in the same position in that only some of them have been indicted and some have not. Byron R. White: As regards their agreement with respect to the injunction, they are all in the same boat. Larry R. Etzweiler: They are not quite in the same boat because the plaintiffs who have been indicted would of necessity resolve their Fourth Amendment claims, I presume, in the course of the state criminal litigation. That is not necessarily true with respect to the plaintiffs-- Byron R. White: Well, the respondents have also said it is all right just to stay, that their damage suit be stayed, haven't they? Larry R. Etzweiler: --They have offered that, yes. Byron R. White: No injunction, and stay the damages suit until the Fourth Amendment issue is settled in the state court. Larry R. Etzweiler: That is the offer which they have made, yes. John Paul Stevens: And isn't that the relief you seek? Larry R. Etzweiler: No, we seek a reinsertion of the District Court opinion. We don't want the damages action-- John Paul Stevens: But the only difference is that you get a dismissal of the damage claim, but it is not with prejudice. Larry R. Etzweiler: --That's correct. John Paul Stevens: So whether you stay it or you just, you know, close the case and let them file it two years from now, what difference does it make? Larry R. Etzweiler: Well, the pendency of the damages action has a chilling effect. John Paul Stevens: Does it have any more chilling effect than a letter to you saying, as soon as these proceedings are over I am going to refile the case? Larry R. Etzweiler: Psychologically it does. John Paul Stevens: But that is all that we are asked. Our time is devoted to save the psychological concern. Larry R. Etzweiler: Well, but these are very important for the states-- John Paul Stevens: I understand, but we generally decide lawsuits. We don't, you know, assuage people's feelings about-- Larry R. Etzweiler: --Yes, I know, but this is an important factor under the Younger comity considerations. Even the pendency of this action is going to, for example, make it hard for our investigators to apply for credit when they apply for mortgages and their mortgage companies get nervous. Is stands as a sword over them that makes them less enthusiastic about proceeding with the criminal matter. It makes other investigators shy about becoming involved in the criminal prosecution. This is why the-- Byron R. White: --Yes, but if it was just dismissed without prejudice, people who really know what they are doing would have the same concern. They would know that if they lose on the state proceeding on the Fourth Amendment claim, the damages action can be reinstituted. Larry R. Etzweiler: --I beg your pardon, Your Honor? If they lose in the-- Byron R. White: Can't they file the case again? They can file the case again if they win in the state proceeding, and there is a holding that there was a violation of the Fourth Amendment. Larry R. Etzweiler: --Yes. Of course, it would be preferable if they would take all of these claims into the state system where a single judge could-- Sandra Day O'Connor: They are not required to do that. Larry R. Etzweiler: --I agree. Sandra Day O'Connor: And you are not asserting that. They have every right to file their 1983 damages claim in the Federal District Court, don't they? Larry R. Etzweiler: That's correct, Your Honor. Sandra Day O'Connor: Sure. Now, what about if the statute of limitations runs on them because it is dismissed? Isn't that a consideration for the District Court to make in determining whether to dismiss or not? Isn't that something they should think about? Larry R. Etzweiler: It very well may be. It is not a consideration which was brought to the attention of the District Court in this instance. William H. Rehnquist: So long as the state proceeding goes first if New Jersey law allows it you will get the benefit of res judicata from any favorable findings that the state court makes on the Fourth Amendment issue. Larry R. Etzweiler: I think that is probably correct, Your Honor. William H. Rehnquist: And that is true whether the federal damages suit is stayed or dismissed, isn't it? Larry R. Etzweiler: That's correct, but with respect to the question of the stay or dismiss, another reason we think that the District Court should have discretion in these matters is that plaintiffs whose desire is to impede the grad jury investigation are going to have an incentive to attach damage claims to equity actions when they file 1983 lawsuits. William H. Rehnquist: But you are not arguing here, as I understand it, and as I understand your response to Justice O'Connor, you are not arguing that there is no proper damages action here in the event that it is determined either in the state court or somewhere else that there has been a violation of the Fourth Amendment. All you are saying is the damages action perhaps should have been dismissed without prejudice rather than stayed. Larry R. Etzweiler: We are arguing that the District Court has discretion, yes. John Paul Stevens: Let me pursue that just a second. Suppose we were in the District Court now and they came up with a motion to dismiss all their equitable claims, and they said, all we are interested in is damages, and we are willing to wait until all the state proceedings are over. Given those facts, would the district judge have discretion to dismiss the damage claim? Larry R. Etzweiler: We would submit that it would, but of course our case is much easier, because we have got the-- John Paul Stevens: And say the statute of limitations is going to run. Could they dismiss it and just say, I don't want to hear this? I mean, doesn't a federal judge have a duty to... I don't understand your theory. Why would he have discretion to dismiss a valid claim? Larry R. Etzweiler: --He would have-- John Paul Stevens: Say they had never filed an equitable action. He just filed a damage action. Could he just dismiss it because he doesn't want to hear it? Because if he doesn't do it they will be unhappy. Larry R. Etzweiler: --Well, because we don't view the dismissal again as a dismissal on the merits. We don't have... we would submit that he would have the discretion. Of course, in the absence of a claim for-- John Paul Stevens: Even if there had never been an equitable claim asserted? Larry R. Etzweiler: --We would submit that, but that it not-- John Paul Stevens: He doesn't like cases like this, so he will dismiss it? Larry R. Etzweiler: --I beg your pardon? John Paul Stevens: I don't understand your theory. How can a federal judge say, I don't like these 1983 suits, I will just dismiss it as a matter of discretion. Larry R. Etzweiler: Well, he can do it under the comity considerations which underlie the Younger abstention doctrine, underlie, for example, this Court's opinion in Fair Assessment versus McNulty on the theory that the pendency even of the stayed damages action is going to have a chilling effect upon these investigators as they attempt to pursue the criminal prosecution, and also for policy-- John Paul Stevens: It seems to me you have got pretty timid investigators in New Jersey. Larry R. Etzweiler: --We also have in this case other facets which supported the district court's discretion in this matter, and that's the many questions of state law that were very much entwined... intertwined with the federal claims. For example, part of the federal claim here is that-- John Paul Stevens: xxx stay. That-- Larry R. Etzweiler: --They may be resolved. They won't necessarily be resolved with respect to the parties who aren't in the state criminal-- John Paul Stevens: --But they are not... the difference in whether the federal court resolves them first has nothing to do with whether you have a stay or a dismissal. That is a totally irrelevant factor. Larry R. Etzweiler: --That's correct, Your Honor, yes. Going back to the... with respect to the Third Circuit's opinion again, which had covered not only the damages action but also, of course, the request for injunctive relief, it is our posture that the Third Circuit's opinion will enable subjects of grand jury investigations to chill investigations, to use discovery that they cannot obtain in the course of the criminal investigation, and also will result in dual litigation, enmeshing both the federal court and the state court in supervising the state grand jury procedures which are contrary to our system of federalism and the comity principles that lie at the basis of Younger. Perhaps I could talk a bit about the discovery question. Even with respect to the... with the injunctive portion of this suit, the plaintiffs would also have access to discovery. In this instance, at the time of the filing of the suit, with that filing they served a request for deposition and for the production of documents. Among the documents which they wanted were documents which divulge what the instructions our investigators had been given before they went to execute the search warrant. It is apparent that that type of information could divulge or might divulge to the plaintiffs the theory of the state's case. Sandra Day O'Connor: Presumably you could get a protective order from the Federal District Court if the District Court is going to delay hearing the case in any event. Larry R. Etzweiler: Yes, Your Honor, but of course the... ascertaining whether the protective order is appropriate may very well require the federal judge to look into the grand jury investigation to ascertain what information should be privileged, what information should not be privileged. It might require the federal judge to pull in the prosecutor, to ask him what is happening in the course of this criminal investigation. Essentially it requires the federal judge or may require the federal judge to supervise the grand jury process just... or as the state judge should be doing. We submit that this is contrary to our notions of federalism. John Paul Stevens: But again that would not happen if you were to enter an order vacating the judgment of the Court of Appeals and directing that in accordance with the representation of the opponents, the equitable claims all be dismissed and the damage action be stayed. You would be protected from this particular risk. Larry R. Etzweiler: We would be protected, but the rule allowing a permanent stay is not necessarily a good rule for this Court to adopt as national policy. John Paul Stevens: I am just wondering about disposing of this litigation. That would protect your interest in this litigation. Maybe not your views of national policy. Larry R. Etzweiler: Well, it is still going... it would not protect our investigators as they go out and apply for mortgages as they have the-- John Paul Stevens: Well, it would protect them... you were talking about the concerns of discovery and the federal judge butting into the state procedure. It would protect you from that. Larry R. Etzweiler: --Yes, it would protect us from that. It would not-- John Paul Stevens: But not the credit rating of the officers involved. I agree with that. Larry R. Etzweiler: --Right. It would not offer us the full protection which-- John Paul Stevens: Nothing but a judgment on the merits will do that. Larry R. Etzweiler: --Or a judgment of dismissal not on the merits. John Paul Stevens: Well, if the claim isn't destroyed, if it isn't with prejudice, it won't protect them. Larry R. Etzweiler: But the pending litigation will not be hanging over these... the subjects of the investigation. Also, if these plaintiffs, it would be preferable if these plaintiffs would pursue all their claims in the state court system where they have remedies, including 1983 remedies, because in a coordinated system we can then have a state judge ascertaining, for example, from his review of the grand jury process, whether limited aspects of discovery could go forward whether limited aspects of the damages action could go forward. It is possible that through limited proceedings, for example, the damages action could be determined to be subject to dismissal under the Harlow versus Fitzgerald standard. That would certainly be preferable to these plaintiffs other than letting this action hang completely in the federal court pending the Younger abstention proceedings. Antonin Scalia: Of course, I suspect the only reason in Younger itself we didn't enter a stay instead of direct dismissal is simply because what was asked for was something we simply would not do. That is, enjoin a state criminal proceeding. It had nothing to do with psychological impact. And had not the request been something we are just not unwilling to do by reason of federal-state comity, I expect that... why should a stay be the normal remedy rather than dismissal unless what you are asking for is something that comity absolutely prevents the federal courts from doing, and damages, comity, there is no reason why granting damages interferes with a state's proceeding, right? If the federal court damages suit went forward and concluded before the stage proceeding there would be res judicata there. Larry R. Etzweiler: There very well may be, yes. Antonin Scalia: At least there would have to be a stay. Larry R. Etzweiler: I think Mr. Justice-- Antonin Scalia: Why do you oppose a stay? Larry R. Etzweiler: --We oppose... we submit that the matter should be in the discretion of the district court. Byron R. White: Why? As Justice Scalia... why should that be so? Larry R. Etzweiler: Because... essentially for three reasons. The Younger opinion will be intimidating, the continuation of the damages action will be intimidating investigators. If the stay is not mandatory, these plaintiffs will be continually coming back, asking for a lifting of the stay, which will involve the federal judge in looking into the grand jury process. We don't want to encourage plaintiffs who are simply seeking to hinder the process of the grand jury investigation to join a damages action along with their injunctive claim, and we think that this is consistent with the Younger doctrine, somewhat responding to Justice Scalia's question in that Younger was concerned about federal processes which would enmesh the Federal District Court in disrupting or having a negative impact upon matters of importance in state proceedings. Antonin Scalia: A negative impact would have occurred in Younger no matter when you did it. So long as you enjoin a state criminal proceeding, you are going to have that impact. So we said, get out of here, we are not going to do that. Whereas in this case it is not the case that giving damages will inevitably impair the state criminal proceeding. It depends entirely on when they are given. So why is the stay the only remedy that you should be able to obtain? Larry R. Etzweiler: A rule which would always mandate that stay would again... I guess there's two possibilities with the stay. Number One, it is subject to being lifted. Or, Number Two, it is not subject to being lifted. Neither of those possibilities is necessarily good. Subject to being lifted, of course, upon the plaintiff's contention that the grand jury proceedings are not going expeditiously, then you've got the federal judge intervening. If it is not subject to being lifted, then a preferable rule would be for the states to take the matter over so that it can ascertain whether the damages action can continue without interference upon the grand jury process. May I reserve-- Byron R. White: Could I ask you a question? Wasn't the grand jury proceedings terminated before we even granted certiorari? Larry R. Etzweiler: --An indictment was returned. That's correct. Byron R. White: An indictment was returned. Larry R. Etzweiler: With respect to this-- Byron R. White: And what is the status of the criminal proceeding? Larry R. Etzweiler: --The indictment? It is still in pretrial proceedings. Byron R. White: Well, has there been a motion to return the material, and is there some proceeding pending to decide whether there was a violation of the Fourth Amendment? Larry R. Etzweiler: My understanding is that the plaintiffs have not yet filed such a motion. But I got that from the last time I talked with the attorney who is prosecuting the matter. I presume they still will file such a motion. Byron R. White: Isn't there some limit, some time limit on when they can do that? Larry R. Etzweiler: There may be. My understanding... I can't answer that question. There is, of course, a time limit, but often judges extend the time limit, especially in very complex cases such as this. Thank you. William H. Rehnquist: Thank you, Mr. Etzweiler. Mr. Fitzpatrick, we will hear now from you. Let me ask you, Mr. Fitzpatrick, your brief on Page 21 talks about the mootness issue, and you say at the sentence beginning on the fourth line from the bottom of that page, "Under these circumstances, plaintiffs have no further interest in pursuing their claim for injunctive relief in the federal courts. " "If this case is remanded to the District Court, plaintiffs will amend their complaint to eliminate any claim for injunctive relief and will further move to stay the damages portion of their Section 1983 action. " Now, I take it that is your position. Edward N. Fitzpatrick: That is our position, and it is our position for all of our clients, including Mr. James, who is not under indictment. William H. Rehnquist: And you speak for all of your clients. Edward N. Fitzpatrick: I speak for all of our clients in this Court and below, and we said that, Mr. Chief Justice, because in essence what has occurred here is, events have overtaken the need for injunctive relief. There is an indictment. There are motions pending. One motion has already been granted. Our Fourth Amendment claim with respect to lawyer-client privilege has been vindicated in the Superior Court in Bridgeton, New Jersey, by Judge Serata. Indeed-- Byron R. White: That just relates to some of the material. Edward N. Fitzpatrick: --It relates to some of the materials, and there is a motion pending with respect to our other Fourth Amendment claims as well. We had a forum, at the time there was an indictment, we had a forum for those claims. We raised those claims in the New Jersey forum. Indeed, the Court has disposed very early on of the lawyer-client privilege document and returned certain documents to us as a result of our Fourth Amendment claims, and has under consideration today, and has a motion before him today with respect to other of our Fourth Amendment-- Byron R. White: Has that motion been argued, Mr. Fitzpatrick? Edward N. Fitzpatrick: --It has not been argued, Your Honor. We have asked for an October 31st date. We are trying to move that along because... for practical reasons. We have clients who have essentially been put out of business by the pendency of the indictment, so we are making efforts to move that along. We made the motion and we believe it will be heard, if it is not October 31st of this year, it will be shortly thereafter. Well, I take it the answer to the mootness argument is that this case isn't moot because the entire case should have been dismissed by the district judge. We are prepared to argue that. We are prepared to support the majority of the Third Circuit. Byron R. White: I know. There is a good argument that it shouldn't have been dismissed, but there is an argument that it should have been, and that is the issue here, so why is the case moot? Edward N. Fitzpatrick: That was the issue when we were seeking injunctive relief, because it is the injunctive-- Byron R. White: I know, but the claim is that the entire case should have been dismissed. Edward N. Fitzpatrick: --I understand that, but it should have been dismissed because of the alleged intrusion on the investigative process by our seeking injunctive relief, not by our seeking damages, and what they argue, that since we sought injunctive relief, our claim not only for injunctive relief but for damages should be dismissed-- Byron R. White: And that still is the claim. Edward N. Fitzpatrick: --And that still is the claim, but we are not making it-- Byron R. White: That raises an issue right here in this Court. Edward N. Fitzpatrick: --But we are not seeking, we are no longer seeking the injunctive relief. Byron R. White: I know, but you are seeking to stay in court on the damages claim. Edward N. Fitzpatrick: Yes, we are. Byron R. White: The other side says you shouldn't even be in court on that basis. Edward N. Fitzpatrick: Yes, Justice, we are. We are seeking to stay in court, and we are seeking to stay in the federal court on the damage issue albeit stayed, and we have agreed to the stay. Byron R. White: Yes, you want to stay there and the other side says, no, you shouldn't even be there on that. Edward N. Fitzpatrick: That's correct. That's exactly what this-- Byron R. White: And so we have an issue under Younger. Edward N. Fitzpatrick: --Well, you have an issue under Younger, but what we say is essentially it is a moot issue because the reason that Younger would be applicable, or the reason it was argued that Younger was applicable to us below is that we were seeking certain injunctive relief which we are no longer seeking. That didn't happen-- Sandra Day O'Connor: Well, but up here the attorney for the state is telling us that even if the injunctive relief is no longer sought, that somehow Younger principles mandate that the trial court's decision to dismiss the remaining damages action is appropriate. Edward N. Fitzpatrick: --They have argued that, Justice. Sandra Day O'Connor: Yes, so why don't you address yourself to that? Edward N. Fitzpatrick: Well, with respect to that, I would say where is the intrusion, where is the necessity... where to comity principles come into play so as to deprive us of what the Congress... deprived our clients of what the Congress has given them, that is, a right to go into the federal court with a 1983 lawsuit. The Congress passed the law and said that essentially under the jurisdiction section, that we have the right to original jurisdiction in the federal courts. It is defeated... that is a right that was given to us. It is defeated only if by our bringing that particular action we are now going to impose ourselves in a way that would violate the federalism principle on the state process, that is, the investigative process, the grand jury process, or some other state process. In this case it would be investigative and grand jury. What we say is, at that stage we were seeking certain injunctive relief which they could argue would impose upon that particular state those particular state processes. We say that is no longer the case. That happened, unfortunately, about ten or fifteen days after the Circuit Court decided this case. So that what we argue at this stage with respect to mootness, Justice, is that there is no longer any reason for the Federal Court to abstain from a case which is validly before it based on comity principles and based on federalism principles. Byron R. White: You are arguing the merits of one of the issues that is before us now. Edward N. Fitzpatrick: I am sorry, Your Honor. Byron R. White: You are arguing the merits of an issue that is before us now. Is that the rule under Younger? Edward N. Fitzpatrick: Yes, we believe the rule under... we believe that Younger allows, obviously, and mandates abstention under certain circumstances, and what are the circumstances? It was essentially a three-pronged test. William H. Rehnquist: Abstention on the damages claim or on the injunctive claim? Edward N. Fitzpatrick: Well we say that only on the injunctive claim. We say if we brought a damage suit only originally in the federal court there would be no basis for Younger abstention. William H. Rehnquist: Well, would there be a basis for staying the claim until-- Edward N. Fitzpatrick: Yes. We think there would be an argument. At that point in time, Chief Justice, we may very well have argued against it, but today we will not argue against it, and I believe our briefs have indicated that. William H. Rehnquist: --So then the life part of this case is the petitioners are saying the District Court has discretion to dismiss rather than stay a damages claim in this situation. You say, no, they must only stay it. And does that really make a lot of difference? Edward N. Fitzpatrick: Whether they stay it or dismiss it? William H. Rehnquist: Yes. Edward N. Fitzpatrick: Yes. I think it makes a lot of difference, because as has been pointed out here we have statute of limitation problems in the event it is not. I mean, there is a two-year statute of limitations. The two years is long past. Byron R. White: But the reason that there is no interference is that in this criminal proceeding where you are... the state proceeding that is going on is a criminal proceeding in which you are making a motion to return certain evidence, and there is no way in that proceeding to get damages. Edward N. Fitzpatrick: That is only partially so, Justice, because-- Byron R. White: Well, if there was an ongoing state proceeding that would give you the remedy, you would be interfering with a state court. Edward N. Fitzpatrick: --Justice, you see, our case goes far beyond our Fourth Amendment claims. Byron R. White: Yes. Edward N. Fitzpatrick: And what we say is, we now have a forum for Fourth Amendment claims. Where is our forum, Justice, where is our forum for our claim of deprivation of liberty? Where is our forum for our Fifth Amendment claims? Where is the forum for our claim in our complaint that we were deprived of our property, at least on a temporary basis? Those are all claims that cannot be litigated in the present criminal proceeding in New Jersey. William H. Rehnquist: Now, were any of those claims other than the Fourth Amendment claim embraced in your request for an injunction against the state proceeding? Edward N. Fitzpatrick: No, they were not. Just the Fourth Amendment claim, Your Honor, was embraced in the injunctive request, is my recollection. So that the injunctive request really only went to part of our case, and what we argue to this Court is that we are entitled to a federal forum on damages because that is all that is left in this case. Had the situation been as it is today, we would have never moved for injunctive relief. John Paul Stevens: May I ask you a question? Edward N. Fitzpatrick: Because it wasn't necessary. John Paul Stevens: You say about the injunction you are not fighting for it. Would it be your position that it would be appropriate for this Court to vacate the judgment of the Third Circuit insofar as it contemplated further proceedings for equitable relief? Do you have any... as a litigant-- Edward N. Fitzpatrick: Your Honor, we believe that would dispose of the-- John Paul Stevens: --I know it would dispose. Do you have any interest in a litigant in not seeing that happen, just-- Edward N. Fitzpatrick: --As a litigant, no. As a lawyer, obviously, I do. But our litigants do not have an interest in that, because they do not seek-- John Paul Stevens: --So your litigants really have no interest in defending that portion of the Court of Appeals' judgment. Edward N. Fitzpatrick: --That's correct. John Paul Stevens: The only thing you want to do is be able to maintain your damage action. Edward N. Fitzpatrick: That's correct. Indeed, the dissent at the Court of Appeals was a dissent only with respect to-- John Paul Stevens: I understand. You would be happy with Judge Adams' position. Edward N. Fitzpatrick: --We will take either of the opinions at the Third Circuit at this stage. I must say we argued at the Third Circuit-- John Paul Stevens: But you really don't care, your litigants really don't care. Edward N. Fitzpatrick: --The litigants do not care. It is of no moment to any litigant in this case that injunctive relief would be available. They are not looking for it and don't want it. Antonin Scalia: The correctness of the District Court's action, whether it should dismiss or... should have dismissed or should have stayed depends on what the factual situation was at that time, at the time that it took that action, and at that action the injunction matter was alive. Could we reverse the District Court on the basis of a new state of facts? It seems to me that its action was either right at the time or wrong at the time. Edward N. Fitzpatrick: Well, that's correct. Antonin Scalia: And if there should have been a dismissal then because there was an injunction pending, why shouldn't we say that? You should say that if that's what the judgment of this Court is based on those facts. I haven't gotten to argue that, but I would argue to this Court that the District Court was there. But you can say that, and if this Court were to say precisely what Your Honor has just said, and leave our damage case in place, it would be of no moment to our litigants. Now, I think it is important again taking up the different stages, and I had intended to argue that, because frankly, it is our position before this Court that at no stage was there... was Younger abstention appropriate even as events came about. The one thing that we would point out to the Court is that we did not seek to enjoin the prosecution, as they did in Younger. We did not seek to declare unconstitutional the statute which the investigation such as it was was going forward. We did not attack the investigation. That was not the focus of the attack in this case. The attack in this case was an attack on the conduct of individual state officers in performing that investigation. We didn't say the state shouldn't be able to indict these people because there is something wrong with the statute, it is unconstitutional, or it is in bad faith. We don't allege that the investigation in this case was in bad faith. You allege it violated the Fourth Amendment, among other things. Edward N. Fitzpatrick: We allege that the investigation as carried out by the individual defendant petitioners in this case was conduct which violated the constitutional rights of the respondent. We allege that. And in doing so we did not ask to enjoin the prosecution, and today we do not ask to enjoin even those acts. We ask that the case go forward with respect to damages. Byron R. White: You have got, in this criminal proceeding you have got the rest of your Fourth Amendment claim pending. Edward N. Fitzpatrick: Yes, we do, Your Honor. No, we do not. We have another part of our Fourth Amendment claim pending. If Your Honor please, let me explain that to you. Byron R. White: Part of it is over. Edward N. Fitzpatrick: Part is decided, part is before the Court, and part-- Byron R. White: You don't want to go forward on the damages claim on that part in the federal court. Edward N. Fitzpatrick: --See, we don't have-- Byron R. White: Because if you did and had it decided, it would foreclose the state court. Edward N. Fitzpatrick: --You see, Your Honor, we don't have a Fourth Amendment claim for damages per se. What we have alleged in our complaint is that there are a host of constitutional violations which were caused by an improper effort by the state to coerce several of the clients to give testimony against other individuals in Cape May County. Our Fourth Amendment claim is really threefold. One, it had to do with return of documents that were subject to lawyer-client privilege. It had to do with the return of documents that were outside the scope of the warrant. And it had to do with the officers going... the way they conducted the search, the way they went out into the yard of this particular area and looked at the serial numbers, for instance, on all of the construction equipment that was there, had nothing whatever to do with what the warrant was issued for. It was simply an effort to find out really-- William H. Rehnquist: What were your clients indicted for? Edward N. Fitzpatrick: --They were indicted for conspiracy, a bribery case essentially, conspiracy and bribery. It had nothing to do at all with the equipment. The effort was to see if they could pick up a serial number off the piece of equipment that was stolen or some problem with it so that they could then come in and use that to browbeat them to give testimony against other people who they wished to indict. That was the effort we allege... that we have no... we have no forum for that; even today, because it doesn't challenge the warrant. The warrant didn't say that they could go out in the yard and look at the equipment in the yard. The magistrate, the judge who issued the warrant, he didn't say they could do that. They took that upon themselves. The magistrate or the judge in this case who issued the warrant did not say, listen, fellows, go in there with a blank subpoena and if you see something that you want, we will have an attorney sign the subpoena in blank, and if you see something that isn't under the warrant but you want to pick it up later, fill out this grand jury subpoena and hand it to him, which is what we allege in our complaint occurred. They stacked up all these documents that weren't... had nothing to do with the warrant, sat down with their blank subpoena, and issued a blank subpoena. We can't challenge the warrant on that basis because the judge didn't authorize that type of-- William H. Rehnquist: You can challenge all of... you can raise all of these Fourth Amendment questions in state court now, the same way that you could sue for damages on them in the federal court, can't you? Edward N. Fitzpatrick: --We can raise them only insofar as they affect documents that are presently in the possession of the state or those that would be offered, say, in evidence, those that are evidence against us. Byron R. White: Or any verbal testimony by officers gained contrary to the warrant. Edward N. Fitzpatrick: Correct, Your Honor. Yes, Justice, we could. Byron R. White: Well, could I ask to make sure-- Edward N. Fitzpatrick: But there won't be. You see-- Byron R. White: --Weren't there more... how many defendants have been indicted? Three? Edward N. Fitzpatrick: --Two defendants, two at one company. One company, one partnership, and one individual. Byron R. White: How many of the plaintiffs have not been indicted? Edward N. Fitzpatrick: Three. Byron R. White: Three, and two of them-- Edward N. Fitzpatrick: Three, but one individual, one partnership, and one company. Byron R. White: --And one company. Now, so those... those are still... those are unindicted plaintiffs. Edward N. Fitzpatrick: Yes, Your Honor. Yes. Now, if... at different times in the progeny of Younger the Court has looked at what facts should we look at in determining whether or not Younqer should apply. For instance, in Middlesex County, the belated effort by the New Jersey Supreme Court to provide that petitioner a remedy for his constitutional claims was considered even though that didn't occur until after the Third Circuit's decision. In the Hicks case there was an indictment that was considered. What we argue to this Court is, we are prepared to analyze this case at any stage and argue to the Court that there was never an ongoing state proceeding which was an adequate forum for all of the relevant issues which we raised in the District Court, and that is because there was never a forum even today that would allow us to raise those constitutional claims except for some of the constitutional claims under the Fourth Amendment. John Paul Stevens: Is it not true that the claims that are not... could not be decided in a state forum are all damages claims? Edward N. Fitzpatrick: No, there are other claims which... there are other claims... I am sorry. I missed part of your question. Are you saying to me that-- John Paul Stevens: Are those claims that you say can only be decided in the federal court, such as trying to put pressure on your people to testify? There is no state forum for that, but you are not seeking... you never sought an injunction against that, did you? Edward N. Fitzpatrick: --No, we did not. John Paul Stevens: You just wanted damages. Edward N. Fitzpatrick: We did not, and there is a state forum. John Paul Stevens: Oh, sure. Edward N. Fitzpatrick: In all honesty I must say that we could file the exact pleading in the state court, but the Congress allowed us to file it in the federal court, and we chose to do it. John Paul Stevens: Yes. Edward N. Fitzpatrick: So there is a forum. The question, as I-- John Paul Stevens: But it seems to me that to the extent that you are describing claims that you think you have no state remedy other than a 1983 claim are basically damage claims. Edward N. Fitzpatrick: --Yes. Yes. Correct. John Paul Stevens: And you are willing to-- Edward N. Fitzpatrick: On all of them, even the one aspect of the Fourth Amendment that we can't raise as a damage claim. It is not an injunctive claim. We have no injunctive claims any longer. The injunctive claims were mooted by what occurred. William J. Brennan, Jr.: --You did say, Mr. Fitzpatrick, you could have brought your 1983 claims for damages in the state court if you chose? Edward N. Fitzpatrick: Yes, we could have. William J. Brennan, Jr.: But you had the option of federal or state court. Edward N. Fitzpatrick: Yes, Justice, we had an option. We believe the Congress gave us that option. We selected the federal court. And we believe that in applying Younger this Court ought to respect, and we argue to you you should respect our choice of forum, unless what we are doing is so offensive to the principles of comity-- Byron R. White: Let's just assume that the only claim that you had in the federal court for which you ask an injunction and damages was simply that there was a... certain of the evidence was seized in violation of the Fourth Amendment, and you won an injunction, and then there was an indictment, and you could raise... every claim you had except damages could be raised in the criminal proceeding. Would you say that the federal proceeding could go forward just on damages? Edward N. Fitzpatrick: --I would argue yes, and I also know I would be in a lot of trouble in this Court in arguing yes, but I would argue to you yes, but the fact is that-- Byron R. White: Well, yes, but-- Edward N. Fitzpatrick: --that is not our case. Byron R. White: --Well, I know, but you keep saying you could go forward on your damages claim, but if that proceeding, if the federal case was decided before the state case, you would be foreclosing the state court from deciding your Fourth Amendment claim. Edward N. Fitzpatrick: Justice, I don't believe that in the real world, that there is any chance that that could happen, especially given the calendars, what they are in New Jersey today. We would never get a decision. Byron R. White: Just say that you would never go forward on your damages claim in my example in the federal court. Edward N. Fitzpatrick: I am sorry, you lost me. Or maybe I lost myself. Byron R. White: I don't think the state criminal proceeding is as much, almost as much interfered with by a holding in the federal court that evidence has been seized in violation of the Fourth Amendment. Edward N. Fitzpatrick: Yes, Your Honor, and I can understand it makes it a much closer-- Byron R. White: And if it takes as long to get to the criminal proceeding as this, as it may be that the federal court could get your damages case decided before anything significant happens in the state court. Edward N. Fitzpatrick: --Most doubtful that that could happen, but let me get back to the earlier point, Justice, which you made. If that were the only case, that is, our Fourth Amendment claims that we now have pending in New Jersey, that would make this case a closer case. That would make it a much closer case respecting whether there ought to be Younger abstention, because obviously the state provided us a forum. It did it in a way that we didn't appreciate. That was through an indictment. But we have a forum to test it except for damages. But that is not this case. This case goes far beyond anything which we are now or can litigate in the state court. It goes to violations of... 1983 violations far beyond those aspects of the Fourth Amendment, and that is why we most respectfully argue to this Court, you must look at our entire case. Look at and find out whether or not there was an ongoing state proceeding at any stage which could have allowed us to litigate those claims, the claims of deprivation of liberty, the claims of deprivation of property, having nothing whatever to do with the matters under which our clients are indicted. Indeed, I say to you, whether or not our clients are convicted is irrelevant to that lawsuit because either the state officers on October 5th, 1984, when they went there, they either violated the constitutional rights of our clients or not, and even if they were guilty of something, even if they were guilty of something, they were entitled not to have their rights violated, and we allege they were violated in more ways that merely the seizing of the documents which are now being challenged pursuant to our Fourth Amendment motions in the state court. John Paul Stevens: May I ask you one question about state procedure? Edward N. Fitzpatrick: Yes, sir. John Paul Stevens: In this case, I don't remember his name, there is one state court judge that seems to have been supervising the grand jury, issued the-- --Lenox. Lenox. He operated in about three different areas of the law. Is that typical, or is that just kind of a coincidence? Edward N. Fitzpatrick: That is most unusual. If we were to file a state case it would be in Cape May County, and Judge Lenox is in Trenton. It happens because Judge Lenox is the assignment judge in Trenton. The state grand jury sits in Trenton, and Judge Lenox has been assigned to supervise the procedure of the state grand jury. John Paul Stevens: He doesn't automatically do that as assignment judge? Edward N. Fitzpatrick: No, but he also had a second role. It happened that he was the issuing magistrate for the warrant as well, but the state could have gone to any judge. Indeed, municipal magistrates are available, and others. In this case they chose, because they regularly take their business to that court... it just happens it is across the street, so that is why they go there. John Paul Stevens: He is the one who is ruling on things like whether some documents were seized that were not described in the warrant and so forth. Is that because he was in charge of the grand jury, because he was the assignment judge, or because he issued the warrants? Edward N. Fitzpatrick: It is because... frankly, I arrived on the scene on October 5th and got Judge Lenox on the phone, and I was the lawyer who complained that we weren't getting a receipt for these documents, so when Judge Lenox said that, he said, seal them all, and he put them under seal. The federal case... you have to understand the chronology. John Paul Stevens: You did that because he was the issuing-- Edward N. Fitzpatrick: He was the issuing magistrate or the issuing judge, but the chronology is important, Justice. This case was started before the state filed an ex parte order to show cause. There was no proceeding pending. There was no state proceeding pending when this complaint was filed, so if this Court were to look at where we were on December 27th, 1984, when this complaint was filed, there were no state proceedings pending. The state proceeding came, and I wrote it down, but it is some time in February or March of 1985, by virtue of an order to show cause that the state brought. They brought it, and then, of course, let that order to show cause sit there. We argue to you reason tells us that they did that so that they could have created a proceeding that they could go to the federal court and say, oh, look, there is a proceeding in New Jersey on some of these same matters, so you ought to throw these plaintiffs out of the Federal District Court because they, despite the urging of Judqe Lenox, for over a year they did absolutely nothing with the order to show cause. Nothing occurred. It just sat there. And then when something happened we wrote to Judge Lenox, and Judge Lenox said this case is deemed withdrawn because of this hiatus and this inaction. So that while they were bound and determined to get this order to show cause, certainly the state showed not so great diligence on following up on the order to show cause, although they obviously pointed to it at every stage in the federal proceeding. Finally, Justices, let me say that the Potomac case, the Potomac Electric Company case, juxtaposed to our case, I think amply demonstrates what the true differences are. In that case the plaintiff sought to have declared unconstitutional the underlying statutes with which they were threatened an indictment, and they sought to have... essentially affect the investigation by having the statute it was based on declared unconstitutional. Not so here. In our case we did not do that, and that is the difference, because if there was an... if you consider the grand jury to be an ongoing state proceeding, we would argue to the Court that it is not an ongoing state judicial proceeding, and that there is no certainty that Potomac Electric would have forgotten to argue its case. Indeed, since there was no indictment, what we argue indeed came true in Potomac Electric. They never got to be able to argue the constitutionality of the ongoing statute because there was no indictment, but in our case that is not what occurred. We are not challenging that. We are not challenging any statute, and therefore we are in a different position. We are in a position where there is absolutely no adequate forum in the state court by virtue of an ongoing proceeding even if there is an indictment. Thurgood Marshall: --After you have gone over all of this, do you agree that if we say injunction is out, damages are in, you are satisfied? Edward N. Fitzpatrick: I am satisfied and I will go home, Your Honor. Thurgood Marshall: Well, what is all this argument about? Edward N. Fitzpatrick: It is over as far as I am concerned, Justice Marshall. Thank you. William H. Rehnquist: Thank you, Mr. Fitzpatrick. Mr. Etzweiler, you have four minutes remaining. Larry R. Etzweiler: With respect to the mootness question, and it is particularly with respect to the mootness of the question whether state grand jury proceedings are judicial proceedings for the purposes of the Younger abstention doctrine, this is certainly a case which is capable of repetition but evasive of review. This Court has before it two cases, the PEPCO versus Sachs case out of the Fourth Circuit, it has this case out of the Third Circuit holding directly conflicting theories. In the PEPCO case the grand jury chose not to return an indictment. In this case the grand jury chose to return an indictment. It is very likely every time this issue arises in the Third Circuit by the time it gets to this Court, even in a very complex case as of this nature in which the grand jury pleadings were extensive, one status or the other is going to arise. Therefore, it would be a basis of review... evasive of review. It is certainly capable of repetition in this case because there are grand jury proceedings outstanding with respect to the plaintiffs because these plaintiffs may again have a search warrant or other proceedings in the course of those grand jury proceedings because these plaintiffs have agreed to abandon their injunctive claim with respect to this indictment but they haven't agreed to abandon these claims with respect to any future criminal proceedings which may ensue and which currently are under investigation. Also, what we are reviewing here is the propriety of the District Court opinion in which a dismissal was entered. That dismissal was premised in part upon the facts as existed at the time it entered its judgment, and it was premised in part upon its conclusion that Younger applied by virtue of the ongoing grand jury proceedings. To review that judgment and to review whether that dismissal was proper requires an adjudication of the first question which we have raised, that is, whether the grand jury proceedings are state proceedings for purposes of the Younger abstention doctrine. That is with respect to mootness. With respect to when the state proceedings were started and with respect to part of what my opponent here was saying in his argument, we submit that the proceedings, the state proceedings were started first of all with Mr. Fitzpatrick's telephone call to Judge Lenox seeking the sealing order. They may have been started earlier with the Judge's issuing of a search warrant. In our last brief filed in this matter we made some comparison. A search warrant is very much like an ex parte writ of attachment. State officials go to a judge. They submit an affidavit. They get an order which is called a search warrant. That allows them to go and take property, and to retain that property until such time as the plaintiffs come into Court in New Jersey under a Rule 357 motion explaining why the state should not retain that property. That is very much like an ex parte writ of attachment which this Court, I think, in Trainor versus Hernandez found sufficient for a state ongoing proceeding, so we dispute the proceedings in this case started at the late date which my opponent says. We submit they started much earlier. Third, with respect to the question whether these plaintiffs are seeking to enjoin the grand jury, I want to point out, first of all, the Perez versus Ledesma case, which... the Third Circuit had no problem with this question. They agreed taking documents away from a grand jury investigation which would substantially interfere with these proceedings, and they partially relied upon case law from this case. I think if you look at Perez versus Ledesma you will find, that was one of the companion cases to Younger, that in this case this Court held that the District Court's adjudication that Texas officials had to return property was a substantial interference. Thank you. William H. Rehnquist: Thank you, Mr. Etzweiler. The case is submitted. Speaker: The honorable court is now adjourned until Monday next at ten o'clock.

Warren E. Burger: We will hear arguments next in 1383, Christiansburg Garment Co. against Equal Employment Opportunity Commission. Mr. Sturges you may proceed when you are ready. William W. Sturges: Mr. Chief Justice and may it please the Court. This case arises out of Title VII of the Civil Rights Act in 1964. This particular action began or had its genesis in the charge that was filed with the EEOC in 1968. This charge was processed and disposed of by a 'right to sue' letter issued by that agency in July 1970. In January 1974, the Commission filed a suit in the District Court for the Western District of Virginia. On that charge on the basis of purported authority contained in the 1972 amendments to the Act. The EEOC Commission lost. Some time after that the prevailing defendant pursuant to Section 706 (k) of Title VII, which states, "The Court in its discretion may allow the prevailing party a reasonable attorney’s fee, filed a motion in the District Court for attorney’s fees in the case." The District Court held that the prevailing defendant was not entitled to attorney’s fees because the EEOC had exercised good faith in bringing and maintaining the suit. Christiansburg appealed to the Fourth Circuit. At this time the Fourth Circuit had followed the decision of this Court in Newman versus Piggie Park Enterprises to the effect that prevailing plaintiffs should be awarded attorney’s fees in the ordinary cases unless there are some special compelling circumstances that they should not be. Despite this rule, it was followed in the Fourth Circuit in the case of prevailing plaintiffs. The Fourth Circuit in a two to one decision, ruled in favor of the EEOC. So we are now before this Court with the issue before the Court fairly simple in the sense. The issue being whether prevailing defendants and plaintiffs are to be treated equally in the awarding of attorney’s fees under the statute. As of this time, some of the Circuit Courts follow a double standard in which they award attorney’s fees to defendants only in bad faith cases while other Circuit Courts most recently panels of the Sixth and the Fifth Circuit are ruled that defendants are entitled to attorney’s fees on the same basis as the plaintiffs. We of course argue that equality of treatment should prevail. In our brief, we have argued that the plain meaning of Section 706 should control that the statute says simply the Court may allow the prevailing party a reasonable attorney’s fees. John Paul Stevens: Mr. Sturges? William W. Sturges: Yes your Honor. John Paul Stevens: I know you do in this Court take the possession that the same rule should apply to both parties. The Court of Appeals’ opinion suggests that you took a different position in that Court. That there you argued there was a difference between the plaintiff and defendant, and that the standard would be reasonable as opposed to good faith with the defendant. Is that correct or did you take it differently? William W. Sturges: Your Honor that is what we argued in our brief to the Court of Appeals and in our oral argument it was directed to, the rule should be the same for the prevailing plaintiffs and defendants. John Paul Stevens: You mean you changed from your brief to the oral argument in the Court of Appeals? William W. Sturges: Yes, we did Your Honor. John Paul Stevens: I See. William W. Sturges: Indeed as we point out in this brief here, if the rule is not to be the same for prevailing defendants and prevailing plaintiffs, what is it to be? We suggest it is not to be the bad faith rule for the prevailing defendant and the ordinary rule for the prevailing plaintiff which is the Court of Appeals’ rule, if it is not to be that then a new rule from whole clause, if you will, has to be construed whatever that may be. Frankly in the Circuit Court we suggest that some rule or reason, but that was very difficult, if you will, to apply, and secondly there was really no statutory basis for that. If I may add this by the time we arrived in the Court of Appeals in the Fourth Circuit, the tied was running pretty latch against the position that we now has supposed in this Court. In terms of the plain meaning of the statute, respondent and the amici who support respondent do not seem to take much issue. They suggest rather that the legislative history or perhaps policy considerations overwrite what the plain meaning of the statute suggests. In respect to the legislative history, there is no question that the first bill that was introduced into the House of Representatives provided only that prevailing plaintiffs would be entitled to the Award of Attorney’s Fees. Our concept was subsequently changed to prevailing party. Two Senators commented in the debates and very similar language under Title II that if the plaintiffs lost attorney's fees could be awarded against them, indeed one of those senators replied to a statement by Senator Irvin of North Carolina that the Act might encourage ambulant chasing, and the reply was no it would not encourage ambulant chasing because the attorney’s fees could be awarded against the plaintiff. Now it is arguable that the legislative history is inconclusive, but what is not inconclusive is there is no legislative history, suggesting that a different standard applied to defendants then applied to plaintiffs. There is just nothing then the legislative history that deals without particular subject matter. In view of that which concluded that the legislative history is inconclusive, then we suggest all them more reason. The plain meaning of the statute should apply and the rule let so provides. Potter Stewart: Mr. Sturges, you keep talking by the plain meaning of the statute. The statute says that the Trial Court may exercise its discretion to assess attorney’s fees either against the plaintiff or against the defendant. It does not say that that it shall -- it did not say a word about it is applying the same criteria, may be on its discretionary the -- plain meaning of the language is that it need not and should not use the same criteria. It talks about the Trial Court’s discretion. But there was -- what is there in the plain meaning of the statute in other words that leads an elective way to conclusion that the criteria have to be identical? William W. Sturges: There is nothing in the statute that says a different standard should apply to the plaintiff. Potter Stewart: There is nothing in the plain meaning of the statute. Is there that requires identity of criteria? William W. Sturges: Only that the statute suggest that both the plaintiffs and defendants are first of all entitled to the attorney’s fee. Potter Stewart: And everybody agrees with that -- William W. Sturges: And everybody agrees with that. Potter Stewart: And that is what the statute said that sometimes attorney’s fees can be assessed against plaintiffs and everybody agrees that sometimes they can. William W. Sturges: Right. Now, in passing the statute if the Congress had intended that different statutes or different standards would apply, it could, for example, have just said, only prevailing plaintiffs will be entitled to attorney’s fees, and then in that event, the only time the defendants would be entitled to attorney’s fees if they prevail would be if the plaintiff had acted in bad faith. Potter Stewart: Well, I wonder if they would ever be if the Congress had said only prevailing plaintiffs shall be entitled to attorney’s fees. William W. Sturges: Well, we -- Potter Stewart: We think it would be pretty clear that prevailing defendants would then under such enactment never be entitled to attorney’s fees. William W. Sturges: Well, this Court has indicated in both the Alyeska Cases and in the Newman versus Piggie Park that the courts have the inherent jurisdiction to award attorney’s fees to either a plaintiff for defendant if the others has acted in bad faith. Potter Stewart: If there is no congressional enactment to the contrary. William W. Sturges: Well, perhaps my choice that the word only plaintiffs are entitled to attorney’s fees was unfortunate. I Perhaps should have said prevailing plaintiffs. Thurgood Marshall: Perhaps, Congress has used the word discretion is unfortunate for you too. William W. Sturges: Well, your Honor, the Congress certainly did not define discretion, but this Court did. Thurgood Marshall: No, we do not know what discretion means, do not you? William W. Sturges: Well, I read the decuisions of this Court -- Potter Stewart: It is a chanslash foot (ph). William W. Sturges: Chanslash foot (ph). This Court in the Newman Case said, "Here is how the discretion is to be applied. Here is how the District Courts are to apply the discretion." And this happened to be a plaintiff’s case and then it said, it should be applied in the ordinary case. Attorney’s fees should be granted. Now all we are saying to this Court is that standard should be the same for the defendant if some other standard should not prevail or if this Court thinks some other standard should be imposed under the Act. Fine just it should be the same for the plaintiff as for the defendant and there is nothing in the history that suggest otherwise. William H. Rehnquist: But you have to go that far in order to support discretionary treatment that they cannot be manifestly different, so as to produce different results simply because one is the plaintiff and one is the defendant, but leaving otherwise a wide discretion in the trial judge, is in fact as far as you need to go? William W. Sturges: Your Honor, I think all I need to go is that whatever discretion is exercised and for either party, it should be the same. Arguments that have been made in the briefs for the amici, the respondent's amici, suggest that if this Court were to rule as the petitioner argues that plaintiffs would be chilled in bringing actions under the Act. We suggest to this Court that, that has not happened up to this point and this statute has plaintiffs -- attorneys have been aware of the statute since 1964, and indeed there has been a plethora of litigation under Title VII. So we do not conceive if this Court rules that the statute means the same kind of discretion is to be exercised for both parties that this will chill any litigation that it has not chilled so far. At most the legislative history suggests that the purpose in passing the statute was both to encourage litigation and discourage litigation. To encourage litigation that would be meritorious and to discourage litigation that would be unmeritorious. The statute suggests that the determinant is who prevails, whether it is the plaintiff or the defendant, and that prevailer is the one that is entitled to the attorney’s fees. I guess, I can best sum up, if you will, stating what the dissent said in the Court of Appeals. Then that result we end up with as a result of the majority opinion under statute which says the Court may allow an attorney’s fees in its discretion to the prevailing party, it is that a prevailing plaintiff is unallowed and attorney’s fees absent exceptional circumstances, while a prevailing defendant under the same statute is not allowed an attorney’s fee unless the plaintiff has prosecuted his action in bad faith. I suggest this is not the level floor the court house demands. We would reserve the rest of our time. Warren E. Burger: Very well. Mr. Martin. Thomas S. Martin: Mr. Chief Justice and may it please the Court. The attorney’s fees provisions of Title II and VII of the 1964 Civil Rights Act are by their terms permissive grants that the Court in its discretion may allow prevailing party a reasonable attorney’s fee. In Newman versus Piggie Park Enterprises, this Court established standards to inform that discretion with respect to plaintiffs' awards under Title II, and before the Court today are similar standards for defendants also based upon the proposition that statutory discretion is not a license for arbitrary action, and the question here as it was a Newman, is whether the standards properly effectuate the congressional purpose. Now, these standards which are now followed by six Courts of Appeals, state that the indicia associated with fee awards to defendants are vexatiousness, meritless litigation, abusive conduct, frivolous litigation, or an attempt to harass or embarrass. We think that the so called good faith test is what Congress intended because – 1. It tracks the purpose statements in the legislative history of the 1964 Act. 2. It was relied upon by Congress in enacting parallel civil rights legislation. 3. It preserved the enforcement incentive provided by Section 706 (k). William H. Rehnquist: What if one of the EEOC’s motives in brining an action against a defendant one of several motives was the feeling that they had a lot more legal resourced that they recommend then the defendant did, and therefore he would be likely to cave them and rather than fight the thing. Would that meet the bad faith test? Thomas S. Martin: Mr. Justice Rehnquist, I think the practical answer to your question is that the courts in applying the bad faith test look to objective criteria. No one deposes the EEOC to decide what their motives were. They look to whether they had made sense whether there was a reasonable ground, whether there was in fact some evidence of discrimination. They look to the fact that the EEOC has a burden, a responsibility to advance Title VII’s purposes. This test is applied in objective fashion rather than a subjective fashion. William H. Rehnquist: Well then why do you call it a good faith test? Good faith speaks to me in terms of subjective intention. Thomas S. Martin: I think in some ways it is a misnomer. It is a short form for the set of indices that the courts look to. These are just references. The courts have a discretionary grant from Congress, and I look to these indices to see if something like this has occurred. Now, if the EEOC brought litigation that was, let's say had a reasonable legal ground, or let's say private plaintiff, but litigation had a reasonable legal ground. This is a Carrion Case in the Second Circuit, but had brought that same litigation already in another form and lost. The Court said, well, although this is reasonable, there is a bad intent here, so there can not be bad intent cases, but most of the time they are looking for really objective purpose. Warren E. Burger: Are you suggesting that all the thousands of lawyers that have employed in government at one level or another there are never can be some occasion when government proceedings have brought vindictively and in bad faith. Thomas S. Martin: I think that there can be that and if that occurred that the courts could award attorney's fees under this good faith standard. I am just suggesting to you that -- William H. Rehnquist: You have just restored some another substantial meaning to the content of the good faith. Thomas S. Martin: I think there is bad faith element in it. I am suggesting that it is not just that. In other words, it is not just a subjective test. It does not require for an award of attorney’s fees that we proved that the EEOC had a bad motive. The EEOC brought an outrageous frivolous litigation. Fees will be awarded against the regardless of its good motive, but it if brought litigation with a bad motive, fees will also be awarded against it. So it had both aspects. Lewis F. Powell, Jr.: Mr. Martin, I take it from what you have said and what you also have said in your brief that you would apply different standards depending on whether you have with the defendant prevailing or the plaintiff prevailing. Thomas S. Martin: Absolutely. Lewis F. Powell, Jr.: Do you find any justification in the language of the statute for different standards? Thomas S. Martin: I find the justification, Mr. Justice Powell, in the legislative history which I would like to turn to now. Lewis F. Powell, Jr.: But my question was in the language -- Thomas S. Martin: In the language, all the language says is that the award should be in the discretion of the District Court. Lewis F. Powell, Jr.: Well, I am familiar with the language. Thomas S. Martin: And it points out no distinction between plaintiffs and defendants. Lewis F. Powell, Jr.: None whatever. Thomas S. Martin: None whatever. Lewis F. Powell, Jr.: And so you fall back solely on policy. Thomas S. Martin: Not on policy Mr. Justice Powell. We fall back on a teaching of automobile and I think what is implicit in Newman is that when you have a discretionary standard, it is not license for arbitrary action. Discretion has to be exercised in conformity with the purposes of Title VII with the statutory scheme, with whatever there was in the legislative history -- Lewis F. Powell, Jr.: Is there any legislative history that would confine recovery of defendant to a situation involving bad faith? Thomas S. Martin: I think there is and I would like to turn to it if I could, the legislative history as you know is a slain legislative history, but we think the statementq with respect of awards, the defendants have a uniform theme and those are the -- Lewis F. Powell, Jr.: Does (Inaudible) indicate, why Congress did not make that explicit? Thomas S. Martin: No it does not indicate why it did not make it explicit. I think it is fair to assume that Congress was enacting a new statute, it was difficult to conceive of all the possible situations that might arise, so what did it grant a discretionary power and through the legislative history gave a guidance to the court in how that discretionary power might be interpreted, and I think that was not a successful effort I think to deal with kinds of problems which might come up rather than straightjacket in the courts into some particular standard. They gave them a broad grant of discretion and through legislative history informed that discretion. Lewis F. Powell, Jr.: A bad faith standard is quite a straightjacket. Thomas S. Martin: I do not think it is Mr. Justice Powell, unless you interpreted as a totally subjective standard which is not and has never been. If it includes award of fees in cases of frivolousness, harassing litigation, vexatious litigation, the Courts of Appeals in Carrion include unreasonable litigation and new Eighth Circuit case includes unreasonable litigation. I think that is a broad standard and permits the District Court the discretion to respond to what Congress was concerned about, and what Congress was concerned about is demonstrated by the statements by Senators Humphrey, and Senators Lausche, and Senators Pastore. And they said that the purpose of these fee awards to defendants was to prevent harassment suits, to prevent unjustified suits, to prevent suits without foundation, and to prevent frivolous suits. That is exactly we thank what the good faith standard does. It almost tracks to the language used by Congress. Lewis F. Powell, Jr.: Do you happen to know how many EEOC claims are now pending at the Commission level? Thomas S. Martin: Are we talking about litigation or -- Lewis F. Powell, Jr.: We are talking about pending claims, I think I have read in a press few months ago that over 120,000 claims are pending. Thomas S. Martin: That would be correct Justice Powell. Let me give you some perspective on that. Each year the Commission gets something in the nature of 100,000 claims, out of all those claims the Commission selects out only about 300 cases in which to sue. So the perspective that one might get from the briefs of some of the parties that the Commission is running wild all over the country suing people, I think it is inaccurate, and selecting 300 out of 100,000 cases Commission sued by statute only after investigation, only after conciliation, only after approval by procedure, only after approval by the General Counsel’s Office and the Commissioner itself. Potter Stewart: But all of those remaining out of the 100,000 are free to sue once they get a right to sue letter. Thomas S. Martin: Absolutely. Potter Stewart: That is 100,000 potential plaintiffs. Thomas S. Martin: And in actuality that turns into as the statistics, I believe it is in the Lawyers’ Committee brief state that there are about 5,000 suits last year on employment discrimination nature. Potter Stewart: And all are entitled -- and all of them are entitled to attorney’s fees under the -- Thomas S. Martin: If they prevail -- Potter Stewart: Presently under the Newman -- Thomas S. Martin: Absolutely, and if those suits turn out to be unreasonable, frivolous, meritless, outrageous, abusive all then will be, all the defendants are also entitled to test. Potter Stewart: They have all been given right to sue letters by the Commissioner. Thomas S. Martin: Obviously. Potter Stewart: That is hypothesis. Thomas S. Martin: Correct. John Paul Stevens: Mr. Martin do you think the Ninth Circuit case which allowed fees which was cited in the cert petition was correctly decided? Thomas S. Martin: I think that is a difficult case. I think it is on the line and probably suggest the breadth of discretion that permitted the courts under the standard there the EEOC pursued an appeal from a denial of an intervention order, it was not totally denied, it was partially denied, and the Ninth Circuit apparently felt that the precedent was so clear against the EEOC’s action. That it was in nature of a frivolous or harassment suit and awarded fees against the EEOC. John Paul Stevens: Well, I know what the Ninth Circuit felt, I am wondering, what the Government’s position is? Was that a proper case for the amendments of fee when that fits (Voice Overlap)? Thomas S. Martin: Well, we thought it was not a frivolous action? We thought it was not abusive and fees ought not to have been awarded, but we did not seek certiorari. But then Hommerson (ph) in case in the Ninth Circuit -- Byron R. White: Was it decided a cert petition it sounds like, thank you. Lewis F. Powell, Jr.: (Inaudible). Byron R. White: So you do not think the standard should be awarding fees to a defendant that if a judge thinks the EEOC or the plaintiff should have known he is going to lose the case. Thomas S. Martin: I do not think it should be something. I think that is a standard which would be so difficult to apply, and a standard might so discourage private enforcement or EEOC enforcement is not be a good standard. I think the trust of what Congress was suggesting that fee should be awarded in something like abusive conduct, not just the fact that the District Court says well, this is obviously wrong, but that really looks like inabusive. Byron R. White: So you really are talking about subjective and subjecting bad faith. Thomas S. Martin: I do not think so. I think that the Court looks to one kind of case for example this case where was a case of first impression. In the Court that is a Court of first impression, you know this does not look like abusive conduct to us. Now if this case, if the EEOC had brought a kind of action and had lost in Ninth Courts of Appeals, and the Supreme Court and tried again, the Court would say, well, regardless of the great motives of the EEOC fees could be awarded. It is not totally a subjective test. William H. Rehnquist: How much of discouragement factor, do you think awarding of attorney’s fees the defendant has with plaintiffs. So far as the EEOC is concerned, they get their money from the public treasury, and so far as the private plaintiffs are concerned, most of them are judgment proof anywhere I think. Warren E. Burger: We will resume there -- Thomas S. Martin: I will answer the question tomorrow. Warren E. Burger: -- in the morning. Thomas S. Martin: Thank you.

Warren E. Burger: We will hear arguments first this morning in State of Colorado against the State of New Mexico. Mr. Simms, you may proceed whenever you are ready. Richard A. Simms: Mr. Chief Justice, and may it please the Court: The question before the Court is whether Colorado has met the burden of establishing a basis in fact which would warrant an award of water for a future use in Colorado on a river that has been fully appropriated and used in New Mexico. The Master's Report before the Court simply adopts Colorado's case. Colorado's case, however, does not begin to meet the standard of preponderance in ordinary civil actions much less the standard of clear and convincing evidence in original actions between states. The Master has recommended an award of 4,000 acre-feet. The bottom line of that recommendation is his conclusion that there would be no injury in New Mexico. That conclusion depends upon three interdependent factual predicates. The first of those is that the acreage in New Mexico must be cut in half. That is, the acreage that New Mexico users are ready, willing and able to irrigate must be cut in half. As part of that predicate the Canadian River users of Vermejo water must not even be considered by the Court. The reduced acreage on the main stem of the Vermejo in the 1970's must not have been caused by water shortage. The New Mexico water users must not have been diligent, and the Court will, therefore, protect only 5,300 acres in New Mexico instead of 9,100 acres. Secondly, and additionally there must be in New Mexico reasonable conservation measures which would effectively manufacture or make available or augment the supply by 4,000 acre-feet at the diversion points in Colorado. Thirdly, and again additionally the future use of the benefits that would derive therefrom must be reasonably certain and comparatively unquestionable. All three of these factual predicates are essential to the Master's Report. If one of those predicates fails, Colorado's case fails and the Master's Report fails. We believe the case fails on all three predicates. The bottom line I believe in this case generally is that there simply is not enough water in the Vermejo River to make it possible to make an award to Colorado for a future use. In the Court's first decision in this case the Court indicated two ways in which it might be possible to apportion water: first, augmentation of supply in two ways, either through water conservation or through the effective forfeiture of water rights not diligently exercised; secondly, the Court indicated that through a balancing of benefit to the future use in Colorado against detriment to the cessation of the existing uses in New Mexico an award might be made to Colorado. Sandra Day O'Connor: Mr. Simms, on the first point and the way in which water can be augmented, how can New Mexico legitimately claim that nonuse over a thirty-year period never becomes in effect an abandonment of the use of a certain portion of the water? Is it your position that New Mexico can never by nonuse lose the right to use the water? Richard A. Simms: Not at all, and I think the Court's first instruction to the Master in the first area of evidence taking suggests the answer to the question, Justice O'Connor. The Court said that to determine the existing uses you must look at present levels of use, and balance on the one hand shortage of water against the possible inference on the other hand of lack of diligence on the part of the water users. We presented the evidence. Colorado did not present the evidence to do that. New Mexico did present the evidence to do it. That evidence indicates that for the Vermejo Conservancy District as an example... I presume that they are the users to whom you are referring. In there after the District was rehabilitated in 1955 there was a ten-year development period. That did not end until 1965. In an ordinary reclamation project you would not expect the water users during that period to have developed their water rights. They are given that period of time within which to do it. Right after that as the evidence shows the water supply dropped off substantially. The way in which you instructed the Master to provide the factual information to the Court is the same way a water right entitlement is adjudicated in most every western state. They will look at historic use, an adjudication court will, and balance on the one hand times of shortage so that nonuse might be excused and on the other hand the possible lack of diligence. Here you can make no inference of lack of diligence out of the contractual development period. Once that stopped, once that was over there is a drought on the river. Consequently, while the water users are still ready, willing and able to use the water supply, the water supply simply is not there. Speaker: Mr. Simms, let me interrupt if I may for a moment. The Master in dealing with the finding of drought says New Mexico claims that the nonuse on the part of the District is caused by the drought in the early seventies. However, the drought in the 1970's cannot be responsible for the nonuse which has existed in the District since its formation in the fifties, nonuse through a time period when all of the other users in evidence from flow tables found sufficient water available. So he is finding for a substantial period before what you say was the drought. Richard A. Simms: Early in the fifties. See, the Vermejo Conservancy District was rehabilitated. That was finished in 1955. Prior to then there was a much larger irrigation project, nearly twice as many acres. It was all torn apart. The canals were rebuilt. Some reservoirs were taken out. New reservoirs were put in. New lands were leveled or were to be leveled. The whole place was rearranged. So in 1955 there began a ten-year period within which to develop up to the potential of the District. Actually it was seven years. It was later amended and became ten. At the end of that development period is when the drought years began. The problem with the Master's assessment... The Master says he looks at the flow records or the flow charts. What he does is look at Table 2 in his second report to you. We invite the Court to look at Table 2. Table.2 is the average discharge for every month of every year from 1916 until now. The Master looks at that, but he does no do anything else. He does not compare those figures with anything. That is the end of the Master's analysis. That is the beginning of New Mexico's analysis. What you have to do is take those figures and do a water accounting down the river below the Dawson gauge where he gets the figures. You have to add accretions, subtract depletions and carry those figures, carry that water supply down to the farmer's land in order to find out how much water is available on the land. If, for example, you look at the year 1950... and the Master has told the Court he finds no time of material deficiency or intermittent supply by looking at those figures... but look at 1950 in his chart. If you add up the discharge for the year you will find the first figure in New Mexico's Exhibit F-29. That figure is 4,800 acre-feet. If you do a water budget and take that down the river to the land, you end up with 1,600 acre-feet. The Master says that is sufficient. He is explaining to the Court that that is sufficient to irrigate 7,380 acres. We believe that is patently incorrect. If you were to do it for the year 1951 you would end up with nothing on the farms. If you were to do it for 1956 you would end up with nothing on the farms. Then there were some good years following 1955. The problem there, though, was the development of the District. Once the District development period was over you get back into drought years, and if you follow through on Exhibit F-29 and do this water budget accounting, which Colorado never provided and the Master never did, you will find out that the river is very, very short in the seventies. The evidence in that regard is overwhelming. It is the bulk of the evidence in the record. If you were to compare the monthly USGS flows to demand from 1916 to now, that supports New Mexico. The Bureau of Reclamation testified in this case, including its regional director and its area engineer. Both are personally familiar with the operation of the Vermejo Conservancy District. They testified to the shortages. Their testimony is unimpeached. Indeed, in this regard it was not even cross examined. The water users, all of them, testified to this shortage. John Paul Stevens: Mr. Simms, can I ask a question about one of the Master's findings. He refers to a man named Porter on page 7, who is an individual user, as I understand, downstream of the District. He got substantially all his water as I understand what the Master found and did not complain that the... He got 85 percent I think. The difference he did not get was attributable to the shortage. If he could get anything at all, does it not follow inexorably that the District itself must have gotten all it needed? Richard A. Simms: No, it does not follow at all. Mr. Porter is one of a number of users, Justice Stevens, who uses... He is not a member of the Vermejo Conservancy District-- John Paul Stevens: No, he is downstream. Richard A. Simms: --but he utilizes-- John Paul Stevens: He is junior to them, is he not? His rights are junior to theirs. Richard A. Simms: --That is correct. But he utilizes their works in order to take water. He takes his water out of their works. A comparison of the same flow records at the Dawson gauge that I just mentioned in our Exhibit number F-29 will reveal the same thing with respect to Mr. Porter as it does to the Vermejo Conservancy District. There simply is a shortage that averages 6,600 acre-feet per year between 1955 and 1979. That figure is corroborated by Colorado's own exhibits. Their exhibit numbers 37, 38, 43, 45-- John Paul Stevens: Let me cut through because I do not have the facts nearly as well in mind as you do. Is it correct that he got all the water he needed? Richard A. Simms: --He may have gotten all the water he needed during that period of time. That is correct. John Paul Stevens: Is it correct that his rights are junior to the District's rights? Richard A. Simms: I think the question perhaps you are asking, Justice Stevens, is whether or not he should have called priority somehow. He was not in a position to call priority because-- John Paul Stevens: If he got all the water he needed could someone who had senior rights to his have preempted his water? Richard A. Simms: --That is true. John Paul Stevens: Including the District could have done so. Richard A. Simms: The District might have done so, but if the District were to call its priority and take the water rights of somebody junior to it, you end up with the same net shortage. You have to reduce the amount that would have gone to somebody else, and then that amount is given to the District. In terms of the New Mexico users in general, the same figure, 6,600 acre-feet short, is still true. There is much more evidence in the record in this regard. Three New Mexico engineers testified to the shortage. The Fish and Wild Life Service, the United States Fish and Wild Life Service, testified to the shortage. William H. Rehnquist: Well, Mr. Simms, how valid are these points now? I can see arguing to the Master that this testimony supports such and such a finding, but the Master has rejected a lot of testimony by his findings. We do not review that de novo to decide. He is free to disbelieve any witness he wants to as I understand. Richard A. Simms: I think he is free to disbelieve any witness he wants to, but it is awfully difficult for me to believe that there was any issue of credibility in this case. There was none. I think that issue is now trying to be injected in this case in order to pump up the weight that is to be given to the Master's Report, but I find it difficult to distrust the testimony of the Bureau of Reclamation. I find it difficult to distrust the unimpeachable evidence of the USGS. I find it difficult to distrust the testimony of all of these people. The reason the Master did what he did was because he never looked at demand. He simply stopped on the supply side. He looked at that table and he just surmised, well, it seems to me there is enough water there for everybody. Had he compared that to the demand he could not have thought all of those people were not telling the truth to the Court. Similarly when Congress passed legislation just a few years ago to relieve the repayment obligation of the Vermejo Conservancy District, that was done upon a congressional finding of the very water shortage that the Master says does not exist. We find it hard also to believe that Congress was duped. The second area or second, way in which the Court can apportion water according to the Master in the first decision is through conservation, and the Court has indicated in its first decision that there also the burden has shifted to Colorado to prove by clear and convincing evidence that there are reasonable conservation measures available in New Mexico which would make 4,000 acre-feet at the diversion points in Colorado. We submit there is not any evidence of any particular conservation measure in the record, nor is there any discussion nor any evidence put on by Colorado of the economic and physical feasibility of any given conservation measure. There is no discussion of how much water might be made at the diversion points in Colorado from any given conservation measure. Sandra Day O'Connor: Going back to the supply side question again, Mr. Simms, for a minute, what did the Master do about the peak flows and the floods in his calculations of water availability in the Vermejo? How did he resolve that question? Richard A. Simms: He bought Colorado's position that all basin discharge is available as a practical matter and divertable by the water users. That is half of his mistake. The other half is he never bothered to compare that gross figure, which was already wrong methodologically, with the demand. So he is patently wrong in two ways. Sandra Day O'Connor: Well, did his use of the average availability figures in effect get used twice, once in the supply figures and once in the excused nonuse calculations? Richard A. Simms: Well, what he did to determine the demand on the river in effect was to equate the short supply... that is what you see in his Table 2... with the acreage that was irrigated with that supply. Now that kind of logic or that kind of reasoning precludes a determination of water shortage. To know water shortage you have to know the difference between the supply and the full demand. He refused to look at the full demand. The reason he did that was because Colorado knew in the beginning that the only way they could even argue that there would be no injury to New Mexico in this case is to cut the water users in half to begin with and leave all of that injury behind. That is what the Special Master's Report recommends to this Court. There is nearly 4,000 acres that is just pushed aside to begin with because the Master never bothered to look or compare supply and demand. William H. Rehnquist: But the Master has found that New Mexico's administration of its water decrease was much looser than Colorado's. Certainly the intimation from those findings is that New Mexico could do a much better job of conserving and make better use of the water that it gets. Richard A. Simms: That Master, Justice Rehnquist, did not point to one way in which administration would be able to save water in New Mexico, and I would suggest to you that that again was part of the design of Colorado's case and was necessitated by the fact that there are no reasonable conservation measures available. William H. Rehnquist: But the fact that it is part of Colorado's case does not mean it is wrong. Everybody starts with a case they try to get the finder of fact to adopt, and he is going to go presumably for one or the other. So the fact that he has, as you say, bought some of your opponent's ideas does not make them wrong for that reason. Richard A. Simms: But the Master is most definitely wrong because he has not been able to pinpoint how it would work. He has not told us how administration would work, nor is there any testimony point on by Colorado about how you can somehow administer this river and get more water. What Colorado did was to put on the testimony of his state engineer and then elicit from our state engineer the fact that there is presently no water master on the Vermejo as a whole and then argumentatively in briefs Colorado tried to explain as they managed to persuade the Master that some kind of administration would make it possible to conserve water. William H. Rehnquist: You say that since the Master's finding does not meaning anything he should not only find that the New Mexico decree is loosely administered but be able to point out how tighter administration would somehow save water. Richard A. Simms: Most certainly. First of all, it is not loosely administered. If you were to compare along any one of the lines that Colorado has suggested, if you compare administration in the two states, New Mexico does not come out on the short end of the stick. For instance, in the Vermejo Conservancy District there is a manager there. There are two ditch riders there. All of the uses and all of the releases are metered and measured. When water is taken out of the reservoirs everybody knows how much water is taken out of the reservoir. That is all of the farms in the district. That is as much administration as you find anywhere in Colorado. Colorado has tried to suggest that water could be made available if the state engineer came in and administered for forfeiture. Our point is Colorado put on no evidence, and the Master can point to none, indicating any land on the entire Canadian system that is conducive to forfeiture. There is none. There are no rights that are conducive to forfeiture. Also, if you were to compare the two laws in that regard, Colorado urges that theirs is much superior, that there is a list of some 34 rights on the Purgatory that has been prepared to forfeit. Well, if you look and see what happened factually and historically that list has not even gone to adjudication. In New Mexico nearly 8,000 acres of water right has been judicially forfeited on the Vermejo system. If you compare the reality of the two there is no discrepancy, then there is not this looseness in administration. Mr. Chief Justice, I would like to retain the remainder of my time for rebuttal. Thurgood Marshall: What do you suggest we do? Richard A. Simms: Justice Marshall, I believe because, number one, the Master never compared supply and demand thus because his finding with respect to lack of diligence on the part of New Mexico users flies in the face of all of the testimony, because he is patently wrong it could be dismissed on that basis. It could be dismissed because Colorado did not meet its burden on putting on any evidence with respect to an economically and physically feasible conservation measure. Both of those problems exist in the Master's Report. It could be dismissed for lack of having met the burden of proof on either of them. Warren E. Burger: Mr. Welborn. Robert F. Welborn: Mr. Chief Justice, and may it please the Court: This Court in its opinion in this case set forth two basic principles or considerations that apply particularly to this case: first, that reasonable conservation measures in one state may offset the effect of a diversion, a new diversion, in another state; secondly, that benefits in one state may outweigh harm in another state. It is Colorado's position that the Special Master has found and that the evidence fully supports the conclusion that reasonable conservation measures in New Mexico in the Vermejo Conservancy District, for example, would and in fact already have offset the effect of a Colorado diversion and further that if there should be any residual harm to New Mexico, which Colorado does not believe there would be, that this harm would be outweighed by benefits to Colorado. The conservation measure that has already been completed is one of the most blatant cases of waste that there could be. It results from the District stock water system procedure. That procedure is fully described in our briefs, of course, and in New Mexico's own Exhibit E-3. The District released annually over 2,000 acre-feet of water from its reservoirs for the purpose of supplying water for livestock. The livestock consumed about 35 acre-feet of water a year. So as you can see there was over a 98 percent loss of water. This waste continued during the period that the District complained of a water shortage. It has now as of last year been eliminated by the installation of a closed stock water system... I should say closed water system... because the main thrust really of this new water system as explained in this New Mexico Exhibit E-3 is to supply domestic water. That was how it apparently got started, to supply water to 20 homes and then it expanded. But this saving of 2,000 acre-feet of water at the reservoirs will completely offset the effect of the Colorado diversion of 4,000 acre-feet at the river. The reason for that is mathematically very simple. It's based on testimony of New Mexico officials, uncontested testimony, uncontested evidence, that the losses from the reservoirs to the farm headgates are approximately one-third. The losses from the river to the farm headgates due to the system going through the reservoirs, the canal system from the river to the reservoirs, the losses there are approximately two-thirds so that you can see 2,000 acre-feet with a one-third loss is equivalent to 4,000 acre-feet with a two-thirds loss. This extreme waste of this water in this method of supplying water to livestock over the entire period of the District's existence until last year did not even constitute under law a beneficial use, an existing use which should be recognized. The Jicarilla case which we cite in our brief dealt with a 93 percent loss, an incredible loss of water at the Elephant Butte Reservoir below the city of Albuquerque. The Tenth Circuit applied New Mexico law and found that that 93 percent loss did not constitute a beneficial use. This Court in this case Justice O'Connor has referred to the need for reasonable and beneficial use of a water right. In Washington v. Oregon the Court said before they concluded that Oregon should have this water said, "We better look at this use and see if there is waste. " They looked specifically. They used the words "beneficial use". So here we have a conservation measure that is complete. The feasibility of it is proved. Now the Special Master was completely correct in placing emphasis on water administration. Water administration is the key to water in the western states. It is the other half. A water right is one half, but it is not worth anything really if there is not water administration to back it up. That is why the Special Master, an experienced judge, an experienced water attorney, really, who represented the State of Wyoming in Wyoming v. Colorado in one phase of that case, that is why he focused in all of these respects on this matter of administration. William H. Rehnquist: Mr. Welborn, let's assume that the Master was justified in finding that Colorado was entitled to some allocation out of the Vermejo. Now as I understand the decree it basically gives Colorado 4,000 acre-feet. Robert F. Welborn: Yes, sir. William H. Rehnquist: How is that going to work, say, if another year like 1974 comes along which Table 2 to the Master's Report shows that the annual flow at the Dawson checkpoint was 3,040? Robert F. Welborn: Well, the Colorado diversion... There are two or three factors there, Justice Rehnquist. The Colorado diversion would take place at a point within the Colorado production which would mean that Colorado would take only approximately one half of its production so that it would be only take a half of the Colorado production and as the Special Master found only about a third or a fourth of the total Vermejo River production. William H. Rehnquist: But isn't the Dawson checkpoint made up largely of water that you would call the Colorado production? Robert F. Welborn: Well, it is, yes, but it is made up also of water coming in below the border, and as I say Colorado contributes roughly half to the total figure. For example, the New Mexico witness, Mr. Moots, testified that the Colorado production was approximately 5,500 acre-feet a year on the average, and you relate that with the Dawson gauge with an average of some 11,000 acre-feet a year. William H. Rehnquist: How about a year where the Dawson gauge says 3,040? Robert F. Welborn: In such a year from here on, Justice Rehnquist, the District will be completely protected for this reason, the stock water situation, which has now as a result of recent developments come to fruition, but the District gave first priority according to its own witness, Mr. Moots, in his testimony gave first priority to the stock water. They save water in their reservoirs. They release water from their reservoirs first for the stock water. They held water in the reservoirs as against irrigation usage so that they would have enough for the stock water usage. So this conservation measure that has taken place would completely protect, as against the past situation, completely protect even in a low year. William H. Rehnquist: Are you saying then that you think the records supports the finding that New Mexico's demand could be satisfied with 3,000 acre-feet? Robert F. Welborn: Well, I would suggest this, Justice Rehnquist. The District... this gets to another point that has been made here... deals entirely with reservoirs, and the District is entitled to take all of the water in the Vermejo River at its diversion point and indeed has taken most of the water in the river during the 30-year period. So there have not been significant spills from 1950 to 1979. The reservoir system of the District as shown by New Mexico's own exhibits allows the carry over of water from one year to the next. Now at the last hearing in this case Justice White asked if there were a five-year period of low water would that not be a problem. I suggest to you that, first, again I cannot emphasize strongly enough the conservation measures that have been now perfected by the District, but even if there were a period of over one year of low flow the District would not be suffering as compared with what it has in the past because it has now conserved this water. Another element of conservation as far as the District is concerned is revealed in Exhibit 41, and the Special Master alludes to this, and that is the loss of water in its canals in its lateral system. Exhibit 41 is a Bureau of Reclamation report on a meeting between state and district officials, and they were discussing... this was in the later part of the seventies... they were discussing the possibility of administration on the Vermejo River and specifically in the Vermejo Conservancy District. They did not go ahead with administration, but in that report it is said that if there were administration the District would have to be charged with waste as a result of the loss of water in its canals and laterals. The definite plan report put out by the Bureau before this thing got started showed... Their estimate was a loss of 25 percent in the canals and laterals. Sandra Day O'Connor: Is that because they are not lined with concrete or something? Robert F. Welborn: There is no particular testimony except that the silting in the canals and the debris that seems to collect in the canals. I do not think that there is any requirement that they be lined with concrete. Sandra Day O'Connor: That might be quite uneconomical. Robert F. Welborn: No, there is no suggestion of that, and in this report it is simply the matter of cleaning up the canals. But the District usage which has been referred to earlier and which the Special Master found was really basic... it is basically its average usage... is supported by the record. Mr. Simms suggests that the District was just getting going up to 1965, but as shown by New Mexico's own exhibit which is at page 12 of New Mexico's last brief the year of highest irrigation was prior to 1965. Now New Mexico in its brief on remand represented to the Special Master... this was after it was remanded to him for the additional findings... represented to the Special Master that the period prior to the seventies was a period of stable supply for irrigation. Those are New Mexico's very words in its brief. So the Special Master was eminently justified in noting in his additional findings that New Mexico contended that the period of the seventies was a drought period. He did not necessarily accept that, but he noted that even prior to that period the District did not irrigate substantially more water. The average acreage irrigated for the total period of the District operation was 4,379. For the 1960's I think it was about 4,500, and for the 1950's it was about 4,400 so that you can see-- Byron R. White: Mr. Welborn, what about Mr. Simms' point that their underutilization in the sixties or from '55 for ten years was excusable because it was a period of development? Robert F. Welborn: --Well, I suggest, Justice White, that there was not... According to this table, this New Mexico exhibit, there was not any underutilization then as compared with the later period based on the acreage irrigated. There is an exhibit, a Bureau of Reclamation exhibit-- Speaker: Well, let's assume that there was a good deal more water available than was being used for the first ten years after the District was rejuvenated or whatever word is proper, would there have been an excuse for the District not using it because of the fact that it was just being developed? That is Mr. Simms' point as I understand. Robert F. Welborn: --During all this period they were, as I say, giving preference to be sure they had at least 2,000 acre-feet to release-- Speaker: I understand that. Assume that from '55 to '65 there was plenty of water to meet the District's supposed demand, but they did not use it. That is what you are saying is the case. Mr. Simms' response is, as I understand it, that the District was in a period of development so that is excusable. Is that his point do you think? Robert F. Welborn: --I believe that is his point, but their own exhibit which is on page 12 of their brief shows they irrigated as much prior to '65 as they did after '65. The Dawson gauge figures... The Dawson gauge it has been suggested is an average figure and so forth, but it gives monthly figures-- Speaker: Say from the time this grace period ended up until the drought period they were not irrigating any more than they did before. Robert F. Welborn: --No. No, they were not appreciably. The total average was 4,379. The average for the sixties was, I think, around 4,500, and for the fifties it was around 4,400. The Dawson gauge figures, which are a real guide mark as to the water available to the District because the District can take all the water below the Dawson gauge with the exception of the senior priorities of Phelps Dodge and those five people that take off the District canal... The testimony is that those diverters all of whom are senior to the District with the one exception of Mr. Porter take about as much as the accretion from the Dawson, below the Dawson gauge to the District point of diversion. Considering the fact that the District has these reservoirs, that there were no appreciable spills past the District head gauge in the thirty-year period from '50 to '79 except in two years, considering that, the Dawson gauge figure tells you what the District not only should have gotten but what the District did get. Now the Dawson gauge average for the fifties was something, 9,900 acre-feet a year. The average for the sixties was 11,000 acre-feet per year. The average for the seventies was 8,000 acre-feet per year. So you can see there is not a great variation there. Speaker: Mr. Welborn, another point. Suppose that there is really a severe drought period, and I take it if Colorado wins this case if there are 4,000 acre-feet of water in the river in Colorado above... at the point of your hoped-for diversion you would get that 4,000 feet no matter what the consequence was on lower river users. In short, you would never have to share the drought effect. Is that right? Robert F. Welborn: That is correct. Speaker: That is because there would be that much water for you to take. Robert F. Welborn: On the assumption that during the drought there would be 4,000 acre-feet at the diversion point, but if there were a drought there would not be 4,000 acre-feet, I suggest, at the Colorado diversion point because everyone would share in the lower figure as well as the higher figure. Speaker: I do not quite understand that. How much average water is in the Vermejo at your diversion point? Robert F. Welborn: At the diversion point the New Mexico testimony was that it is 3,360 acre-feet a year on the average. The Colorado testimony was that it was 4,700 acre-feet a year. Speaker: And you would want to take 4,000 acre-feet of that? Robert F. Welborn: At the diversion point. Speaker: Leaving on the average 700 acre-feet in the river? Robert F. Welborn: That is right. At the diversion point. Then there is an accumulation in Colorado below the diversion point. Speaker: I understand. In any event, as long as there is more than 4,000... Well, whatever water is in the Vermejo at your diversion point you can take 4,000 feet of it. Robert F. Welborn: That is correct. Speaker: You can take it all if there is only 3,000. Robert F. Welborn: That is correct. We do not deny that. We simply point out that with these conservation measures and considering that Colorado would be taking only one-fourth of the flow in the Vermejo River, another factor as far as the District is concerned, there is no question but what these other diverters are going to get their water. The monthly figures at the Dawson gauge show that. They are all senior to the District-- William H. Rehnquist: Mr. Welborn, you say you are only taking one-fourth of the flow in the Colorado River. That is fine... in the Vermejo. That is fine in a year when they get 16,000. But '74 was a year when they did not even get 4,000. Robert F. Welborn: --Well, I was going to get to the point, Justice Rehnquist, that the figures that the Special Master set forth in his report in his additional findings as to the amount of water coming to the District from other sources were about 45 percent. The District, in other words, gets about 35 percent of its water from the Chico Ricco and 10 percent from creeks which flow into the District's system. So the water that the District gets from the Vermejo is only a little over half of its total supply. Those other sources, of course, would not be affected in any way by the Colorado diversion, but I wanted to suggest this again that the diverters on the Vermejo other than the District would not be affected even in a low flow year because all but one are irrigators and the monthly figures at the Dawson gauge even in the low flow years show that there is sufficient water for that purpose. Sandra Day O'Connor: Mr. Welborn, why did the Master refuse to admit into evidence recent USGS stream flow measurements so that there could be a clearer picture of the available water? Robert F. Welborn: Well, I suggest that the Special Master very properly recognized that as being cumulative and cumulative in a way of minor significance. New Mexico's exhibit F-29 gave a thirty-year picture of the spills at the Vermejo Conservancy District headgate. It showed that in only two years in a thirty-year period were there significant spills. Now, the new evidence that New Mexico proposed to the Special Master covered the years '81 and '82, and that evidence according to their offer of proof would have shown more than 4,000 acre-feet of water spilling past the District headgate in each of those years. That is particular significant because that is more than the Colorado entitlement. They got the evidence in in effect because it is at page 50 of their brief, one of these charts. It shows that on only one day in 1981 did the spills exceed the capacity of the District canal, 600 cubic feet per second. Now Mr. Moots has testified that the District will start to spill at 450 cubic feet per second, but this evidence showed that the spills exceeded... the amount of water there exceeded 450 cubic feet per second on only one day. So this was water that the District was entitled to take and it could have taken presumably if its diversion system had been efficient according to its own testimony. So I suggest that that is the basic reason that the Special Master did not take that, the basic reason being that it was simply cumulative. It was a two year period-- Speaker: I take it that is the reason you objected to it, or did you object? Robert F. Welborn: --We objected. We did not object vehemently. New Mexico said we screamed and hollered, but we did not. We objected. We asked leave to present additional testimony, but we had 16 days of trial, many exhibits. It was clearly cumulative. The other two areas that they wanted to go into, one of them was this closed stock water system, and they put that in their brief on remand to the Special Master. There was just one factor there and that was that the closed stock water system... really, domestic water system was completed. There was no denying that. Byron R. White: Mr. Welborn, what about Mr. Simms' argument that the Secial Master's analysis, he just looked at the supply side and really did not follow the water down the river to the District, did not deal with the demand? Robert F. Welborn: Well, the District demand I suggest is revealed particularly by the amount of acreage that the District irrigated as shown by their own exhibit, by the fact that they chose to continue with this wasting 2,000 acre-feet a year on this stock water business instead of using that for irrigation the District picture, I suggest, Justice White, is a relaxed one. They chose... As shown, as I mentioned, by Exhibit 41 after a conference when the state officials said they would have to be charged with waste if there was administration... they chose apparently not to have administration. It was a relaxed situation. Much more than half of the people in the District... The farms were part-time farmers, absentee owners. This is discussed in detail in the Bureau documents, Exhibit 36, which the District witness testified was currently the situation. I think this is what the Special Master concluded. Speaker: You are not suggesting that New Mexico water laws require to disallow water rights to part-time farmers are you? Robert F. Welborn: No, I am suggesting that that was the picture. I am suggesting, though, that a New Mexico water law is interpreted by the Jicarilla case and another case that is cited in that require beneficial and reasonable use of water. The Special Master contrasted the New Mexico picture with the Colorado administration. I suggest that this brings into play the Wyoming v. Colorado concept and the concept suggested in this case that wasteful uses will not be protected and that each state has a duty to preserve the common supply. Now in Colorado as testified to by its state engineer there is daily surveillance in the Arkansas River Division, Division II, where this falls, the Purgatory falls, of water diversions of the amount of acreage irrigated. The Colorado statute specifically requires the state officials to shut down water if it is not being put to beneficial use, if it is being wasted. This was the picture that the Special Master had. As said in, I believe, Wyoming v. Colorado or Nebraska v. Wyoming, it is not what a state should do for the other state, but-- Thurgood Marshall: Mr. Welborn, was that not all argued before when this case was here? Robert F. Welborn: --I beg your pardon? Thurgood Marshall: Was that not all argued before when the case was here? Robert F. Welborn: The question of duty and so forth, yes, Justice Marshall, was-- Thurgood Marshall: Was it not decided? Robert F. Welborn: --Yes, it was. Thurgood Marshall: Why are you presenting it now? Robert F. Welborn: I am relating it, Justice Marshall, to the question of conservation which I believe is up here. We felt that the pronouncements of this Court regarding protecting wasteful practices were particularly relevant to this question of conservation. Now there is another area that administration would have protected and dealt with that would have been a benefit to the Vermejo Conservancy District, and that is the overuse of water by other diverters. There was no administration and no surveillance. These other diverters were senior, had senior priorities, and there were not any records... the Special Master noted that... because of the absence of administration, but the interesting thing was that when one measurement was made as shown by a New Mexico exhibit, A-130, the seepage run on the Vermejo had shown the Phelps Dodge lessee irrigating after what New Mexico's own exhibit had said was the irrigation season, after September 15th, and using an amount of water, 300 acre-feet, which would have been equivalent to the total annual entitlement of that diverter. So this is the sort of thing that could have been dealt with and would have been dealt with by proper administration certainly in Colorado. All of these factors, I suggest, are ones that the Special Master took into account. He noted also, and I would like to emphasize this in closing, the great benefits to Colorado and the Purgatory, the fact that the City of Trinidad needed water... the City of Trinidad put a moratorium on water taps... the fact that there was 29,000 acres of land, irrigable land, in the Purgatory Valley, 19,000 in the District and 10,000 above the district that needed water. The water was needed for coal washing purposes, for industrial development. He put that together with the picture of water administration. One of the questions this Court propounded was, would there be conservation in Colorado, and he concluded that there would be because of the Colorado picture on water administration. So the benefits to Colorado, it is our position, of course, that with conservation measures dealing with the overuse, with the silting in the District canals and particularly this conservation measure that has been completed with the domestic water system which eliminates the 2,000 acre-foot waste, it is our contention that there will be no harm to New Mexico resulting from the Colorado diversion. But if there should be, the Special Master eminently concluded that any such harm would be outweighed by these benefits to Colorado, and that, we feel, Justice Marshall, fits into both the concepts and, as I say, the principles that were announced in the last paragraph of the Court's decision. Thank you very much. John Paul Stevens: Can I ask one question, Mr. Welborn? At the end of your brief you suggested maybe the decree should be rewritten in a couple of minor respects, or maybe they are not so minor. Did you take any exceptions to the Master's report yourself? Robert F. Welborn: No, we did not. We did not consider that to be an exception, Justice Stevens. We suggested... We felt that the main thrust of the Special Master's original reports and his additional findings that Colorado should have 4,000 acre-feet of water a year, and his report did not specifically limit the Colorado points of diversion as being the points where this water should be taken out of above those points. So we suggested that there be that limitation that Colorado could not take anything below the points of diversion specified in the Colorado decree, and that along with that there be this ten-year running average which is used in Nebraska v. Wyoming, for example, and also used in the Colorado River compact. Sandra Day O'Connor: Why won't that ten-year progressive average you suggest increase the divertable quantity to Colorado beyond the Master's recommendation? It looks to me like it would. Robert F. Welborn: Justice O'Connor, if Colorado was specifically limited to the points of diversion in the Colorado decree it could. You are absolutely right. If, however, Colorado is free to take water any place in Colorado then it would be a corollary to the protection that would be given by limiting Colorado to these points of diversion. Warren E. Burger: Mr. Simms, do you have anything further? Richard A. Simms: There is an extremely important point with regard to this 2,000 acre-feet that Colorado has talked about a great deal being conserved from the closed pipeline that was put in by New Mexico users, two very critical points. First of all, Colorado says that there is an Exhibit E-3. That exhibit has in it a figure of 2,000 acre-feet that could be saved if a closed stock water pipeline were put in. If you translate that 2,000 acre-feet in the reservoirs of the Vermejo Conservancy District into 4,000 acre-feet through all of the efficiency coefficients in route to 4,000 acre-feet at the diversion points in Colorado. As a matter of fact, that 2,000 figure is 2,145. It was estimated in that exhibit by taking the month of November, finding out how much water was released then after the irrigation season was over and when all of the canals were dry and multiplying it by nine. You get a very inflated figure designed to support this project. The fact of the matter is and according to the unimpeached testimony of Colorado if you look at their Table 4 of their exhibit number 6 the average amount of water released during the period of the life of the District has been 790 acre-feet, not 2,000 acre-feet. That is Colorado's testimony. That is based on Colorado's discussion with the people that manage the Vermejo Conservancy District. Speaker: What did the Special Master find? Richard A. Simms: The Special Master never looked at that exhibit. Speaker: Did he ever find how much had been diverted to the stock water system or how much might be saved by a closed system? Richard A. Simms: He did not. He made no specific finding in that regard. Colorado is arguing that this one measure, and it is the only one they can point to, is going to offset the new diversion in Colorado. To do that he has to be correct. Colorado has to be correct that it is going to make 4,000 acre-feet in Colorado. It will not. Seven hundred ninety acre-feet diversion on the average. Bear in mind this was because that is what the Bureau of Reclamation gave them to use. Speaker: How much water upstream would 790-- Richard A. Simms: 1,500 acre-feet. Speaker: --So you agree with his formula. Richard A. Simms: We would we agree with... No, we don't agree with that methodology, but utilizing Colorado's methodology in backing up the river you would have an offset only of 1,500 acre-feet. What that nets out to be is cutting into the New Mexico uses, not only the ones we already threw out, half of the entitlement. Now you cut into the ones that are left by an additional 2,500 acre-feet. John Paul Stevens: May I ask, you say that the 2,000 figure should really be 790. Richard A. Simms: That is correct. John Paul Stevens: What is your view of the correct ratio if you do not accept their two-for-one figure? Richard A. Simms: Justice Stevens, I do not think I can answer that without the help of an engineer. The reason is-- John Paul Stevens: Is it somewhat larger than 790 though? Richard A. Simms: --No. The figure would be about the same. We agree with the 790 figure. The only difference is how you translate that 790 at the reservoir-- John Paul Stevens: Do you take the position that 790 feet saved down in the reservoir is the equivalent of 790 feet diverted up in Colorado? Richard A. Simms: --No. It is the equivalent of somewhere in the neighborhood of 1,500 acre-feet. Speaker: So you do then agree with their two-for-one ratio if I understand. Maybe I misunderstand it. Richard A. Simms: We do not exactly agree with it. There is no dispute over it insofar as this point is concerned. Speaker: Thank you. Richard A. Simms: Secondly, the conservation measure that is being discussed was undertaken long before this litigation began. It was undertaken because the water users themselves recognized that what the Bureau of Reclamation gave them to work with was not very good, and they worked awfully hard to put together the money. They went to every state and federal agency you can conceive of to get that money. They finally put the package together and built the system. It seems to me that the question is not whether CF&I should vicariously be awarded the benefits of their labors, but rather whether this Court is going to protect the kind of conservation measure, ongoing conservation measure, that it has said the states on an interstate stream are obliged to do. Speaker: Well, you do not suggest, I am sure, that a conservation measure would increase your water allocation. Richard A. Simms: No. What the evidence shows without contradiction, and it is the evidence of the Bureau of Reclamation. It is the evidence of the USGS. The evidence shows that there is no economically or physically feasible conservation measure, any further ones, available in New Mexico. We have the ultimate conservation measure down at the bottom of the Canadian system. There are two major reservoirs down there that impound nearly 500,000 acre-feet of water. The Vermejo dumps into that. Colorado would have you believe that the river channel that runs from the point of diversion at the Vermejo Conservancy District down into Conscious Reservoir does not exist. Byron R. White: Is part of your argument that the uses of Vermejo water in the Canadian river should prevent an allocation to Colorado? Richard A. Simms: Those uses have to be thrown out entirely in order to reach the conclusion of no injury. Byron R. White: Well, I understand that. That does not answer my question. Richard A. Simms: Justice White, they along with the 4,000 acres that you would throw out along with the additional undercutting of New Mexico uses by 2,500 acre feet plus the 13 percent shortage of the Canadian river users and their historic reliance on the Vermejo, yes, they all add up. Speaker: They may have a historic reliance, but that is only because there is water running past the District. Yet the Vermejo is completely adjudicated. Richard A. Simms: It is completely adjudicated, but there are spills and they get down there frequently as the USGS data show. If you look at the entire period of record and not the mean daily flows on the exhibit to which Mr. Welborn has referred you to, you will find an average flowing past that diversion point of 7,700 acre-feet over the long haul. That is a lot of water getting down to the Canadian river. Speaker: That includes the flood periods. Richard A. Simms: Yes. That is essentially flood flow. One final point, even if the Court were to buy everything that the Master did, which we believe is patently incorrect because he never compared demand to supply and because he never identified a conservation measure, he has not shown you one reason either in law or in equity why priority should be varied even if Colorado were to be awarded the water. Thank you. Warren E. Burger: Thank you, gentlemen. The case is submitted.

Warren E. Burger: Mr. Connolly, you may proceed whenever you're ready on 179, Roger's against Bellei. Joseph J. Connolly: Mr. Chief Justice and may it please the Court. This case calls into question the constitutionality on an act of Congress. The statute involved as part of Section 301 of the Immigration and Nationality Act. This statute is set forth on page 45 and 46 of our brief. Section 301 (a) (7) includes among those who are declared to be citizens of United States at birth. Persons who are born abroad of one alien parent and of one citizen parent who has resided for a specified time in the United States. Section 301 (b) provides that such persons that is person foreign born persons who derive their American Citizenship from one American parent, must come to the United States prior to their 23rd birthday and remain here continuously for five years, prior to reaching age 28 in order to retain their American citizenship. Another Section of the code provides that absences from the United States of less than 12 months in the aggregate will not break the required continuity of the physical presence in the United States. The facts in this case were stipulated and can be stated quite briefly. The appellee, Aldo Mario Bellei was born in Italy in December 1939. His father is a native and citizen of Italy, although Bellei became an Italian citizen at birth and is an Italian citizen today. He also acquired American citizenship at birth under the predecessor of Section 301 (a) (7), because his mother had been born and raised in the United States and was an American citizen. Appellee resided in Italy from the time of his birth until recently, when he moved from Italy to England. Prior to his 23rd birthday, he made four brief visits to United States, the longest of these being four months in duration. On several occasions, when he applied for renewals of his United States passport, he was advised by American consul officials that he must satisfy the requirement of the period of continuous presence in the United States. When the appellee did not heed these warnings and remained in Italy past his 24th birthday, his passport was canceled on the ground that he was no longer an American citizen. Thereafter, the appellee instituted this suit for declaratory and injunctive relief premised on the contention of Section 301 (b) is unconstitutional. A three-judge District Court sustained the appellee's claim to American citizenship, holding section 301 (b) unconstitutional on the authority of this Court's decisions in Schneider versus Rusk and Afroyim versus Rusk. The government has appealed directly to this Court. We argue in this case that the type of citizenship involved here is of an entirely different type than that involved in Schneider and Afroyim, that it owes it's existence entirely to legislative judgment and that the provision for it's termination is a reasonable exercise of the same authority by which appellee citizenship was created. We contend further that a decision sustaining this statute would not undermine the principles on which this Court's previous decisions rested. We build our argument on the following points. First, there is no claim that Section 301 (b) is a penal law, either in its intent or in its effect. Residents abroad is not a criminal or reprehensible act declared by the American government or by the American people. The loss of citizenship is in no way intended to punish such absence from the United States. Therefore, the principals which underlay this Court's decision in Mendoza Martinez are not applicable here. Second, the laws of nationality under Section-- William J. Brennan, Jr.: Mr. Connolly, if the constitutional stand would have be that one can't lose citizenship without voluntarily giving it up, I take it this argument wouldn't hold, would it? Joseph J. Connolly: Our case would be much more difficult, I would not -- William J. Brennan, Jr.: Well could you win it, if that were the case? Joseph J. Connolly: I think we could make a contention that absence abroad of extremely long duration may indicate of voluntary relinquishment of American citizenship. But then we would be struck with a counter argument, premised on Schneider that we would be distinguishing between this class of American -- unreasonably distinguishing between this class of American citizens and other citizens who require their citizenship -- William J. Brennan, Jr.: So that if a voluntary relinquishment were the standard you would probably -- Joseph J. Connolly: I think that that's right Mr. Justice. William J. Brennan, Jr.: Yeah. Joseph J. Connolly: And we're contending quite forcefully in this case that voluntary relinquishment is not necessarily the standard because of the like Fourteenth Amendment foundation. Our second point is that the laws of nationality under Section 301 unlike the statute involved in Trote versus Dallas, does not create the risk of statelessness, which concerned Chief Justice Warren in that case. The legislative history set out in our brief shows the Congress was concerned with the problem of dual nationality and the protection of persons abroad who held American citizenship for owing primary and permanent allegiance to another country. To such persons, the laws of American citizenship does not result in statelessness. They simply retain the citizenship of the country to which they have shown their principal attachment. In this case, the appellee is, and always has been, a citizen of Italy. Our third point, and this is a critical point of distinction between this case and the Court's recent precedence in the area is that the type of citizenship involved here does not derive any constitutional protection from the Fourteenth Amendment. The majority of the Court in the Afroyim versus Rusk, found in first Section of the first sentence of the Fourteenth Amendment, a protection against involuntary expatriation for those persons whose citizenship was declared by that sentence. The process by which the first sentence of the Fourteenth Amendment was held to include certain substantive guarantees and the type and scope of these guarantees are matters which I confess are not entirely clear to me. But it does seem clear that whatever those rights may be, they are in guaranteed only to those persons whose citizenship is declared by the first sentence of the Fourteenth Amendment. The first sentence of the Fourteenth Amendment reads, “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and other state wherein they reside.” The appellee of course was not born in the United States. There may be some questions whether he acquired his citizenship by naturalization although it is not pressed that contention. We doubt whether Section 301 (a) (7) can be considered in naturalization statute as that term is used in the Fourteenth Amendment. We can find no authority that the reconstruction Congress view the statutory acquisition of citizenship at birth as part of the naturalization process. But even of it is assumed -- William J. Brennan, Jr.: But how -- what then should constitutional authority of Congress to make him an American citizen? Joseph J. Connolly: Mr. Justice, that is not entirely clear. The court below passed over the point in its opinion and in our brief we agreed that there was constitutional authority to grant this type of citizenship. We suggest that that have might be premised on the naturalization clause and it might be premised upon the Congress' inherent powers, the legislative body of a sovereign to declare the classes of persons who will be considered as citizens. My own research in the area leads me to conclude that the creation of this class of citizenship is in the exercise of an inherent power rather than the-- William J. Brennan, Jr.: Of course under that power could the Congress make every resident of Canada or every Canadian an American citizen really by legislation? Joseph J. Connolly: It perhaps could. The basis for my conclusion is that the Congress -- according to the English precedent where the use solely was the fundamental law of citizenship, but as I'll show later, was amended by the parliament in 1350 to provide for a limited grant of citizenship to children born of British nationals overseas. That the English authorities viewed that as of the same order of creation of citizenship as the natural law of use solely, and that it wasn't considered to be part of the naturalization process which proceeded separately by separate statutes. I believe that that was the approach which the founding fathers had in the Constitution that is to the extent that this power is existing in Congress, it exists as a natural incident of the sovereignty and there is very limited authority to cite for that. The very first statute -- William J. Brennan, Jr.: That to suggest that instead of the first sentence of the Fourteenth Amendment, Congress might have enacted a statute which overruled the Dread Scott? Joseph J. Connolly: I think so, the Civil Rights Act. Warren E. Burger: Going back to your earlier quotation of the first sentence of the Fourteenth Amendment, do I understand your position to be that one who derives his citizenship, achieves his citizenship by being born in Italy as here with two American parents then residing in Italy has less in a way of protection than an Italian national who came over here and became a citizen by naturalization? Joseph J. Connolly: Well, his citizenship would not be derived. It would gain no protection from the first sentence of the Fourteenth Amendment. Warren E. Burger: Well, then it follows from that, that it does have less rights? Joseph J. Connolly: It does follow from that, that the -- Warren E. Burger: Does that seem rather anomalous? Joseph J. Connolly: No Mr. Chief Justice, because the first section of the Fourteenth Amendment was designed to take care of a particular problem in the United States at that time in securing of the right of citizenship to the newly freed slaves and it since had been interpreted more broadly to have rights involving rights associated with the preservation of citizenship. But insofar as the citizenship is to be created by the Congress in the exercise of its power to define citizens of the United States, then it must be admitted that that power has -- that included within that power is the authority to impose reasonable conditions upon that citizenship. That power in Afroyim holds, perhaps was taken away in respect to the Fourteenth Amendment citizens by the Fourteenth Amendment but insofar as our constitutional principles are concerned, we argue that where the citizenship is created entirely by statute and in exercise of Congressional judgment, that reasonable conditions may be imposed. Speaker: I'd like to go back to Mr. Justice Brennan's question of the constitutional source. If there is now a constitutional authority for the issue on your case, would that warrant you? Joseph J. Connolly: That's right. We don't make that argument. We do not argue that Congress lacks the authority to make adverse citizens of the United States, those who were born abroad. Mr. Justice Brennan, just to complete my answer to your question, some limited authority for my proposition comes from the very first law containing this provision providing for grant of citizenship to children born abroad. In that law, which was passed by the First Congress in 1790, it says that, “And the children of citizens of the United States, that maybe born beyond sea or out of the limits of the United States, shall be considered as natural born citizens.” We suggest there was in the exercise of its naturalization authority under the Constitution. William J. Brennan, Jr.: Were there any traditional challenges to that kind of legislation, before the adaption of the Fourteenth Amendment? Joseph J. Connolly: I'm not aware of any Mr. Justice. We take the position that even if it is assumed, that the appellee acquired his citizenship by naturalization, it still would not come within the Fourteenth Amendment. This is so because he was neither naturalized in the Unites States nor was he subject to the jurisdiction of the United States when he acquired his citizenship. The history of the amendment confirms when its language unmistakably contemplates that it was directed to events occurring in the United States. This was well settled by what Mr. Justice Douglas has called, the historic decision in the United States versus Wong Kim Ark and I would like to quote certain passages from the opinion, this is 169 U.S., at 687. “And from 1795, the provision of those Acts which granted citizenship to foreign born children of American parents, describes such children as born out of the limits and jurisdiction of the United States.” Thus Congress, when dealing with the question of citizenship in that aspect, treated aliens residing in this country as “under the jurisdiction of the United States” an American parents residing abroad as “out of the jurisdiction of the United States.” Passing onto page 688, this sentence of the Fourteenth Amendment is declaratory of existing rights, it's the first sentence of the Fourteenth Amendment and affirmative of existing law, as to each of the qualifications therein expressed, born in the United States, naturalized in the United States and subject to the jurisdiction thereof. In short, as to everything relating to the acquisition of citizenship, by facts occurring within the limits of the United States, but it has not touched the acquisition of citizenship by being born abroad of American parents and has left that subject to be regulated as it had always been by Congress. In the exercise of the power, conferred by the Constitution to establish a uniform rule of naturalization, so there is contrary suggestion by -- William J. Brennan, Jr.: So, it was thought that that was just a little support? Joseph J. Connolly: There is support for the other proposition. I expressed earlier as my own conclusion. William J. Brennan, Jr.: Yes. Potter Stewart: Until the Fourteenth Amendment or put this away apart from the Fourteenth Amendment, there is nothing in the Constitution, is there, that purports to define citizenship of the United States? Joseph J. Connolly: No, Mr. Justice. Potter Stewart: Or to explicitly confer power of the Congress? Joseph J. Connolly: No, it is not exclusive -- Potter Stewart: Not to rely on such power -- Joseph J. Connolly: -- except for the naturalization. The citation from Wong Kim Ark leads to our fourth point. That lacking any constitutional protection, the citizenship which appellee enjoyed is dependent entirely for its existence and its rights on congressional enactments. Hugo L. Black: On what? Joseph J. Connolly: On congressional enactments. This was established more than a hundred years ago by Mr. Horace Benny, in his study which is thrice been cited by this Court with approval, it appears in 2 American Law Register. At common law, the foreign-born child of English citizens did not inherit the right of English citizenship and such a child was treated as an alien in England. The first statute to remedy this was passed in 1350, the 25th year of the reign of Edward III. That statute which granted citizenship at birth to a child born abroad of two English parents, and subsequent statutes on the same subject were construed strictly by the English courts. This Court's decision is Montana versus Kennedy, decided nine years ago, puts to rest any notions that the rights of children born abroad to American parents are greater than what Congress has provided in its citizenship laws. The petitioner in that case was born in Italy to an Italian father and an American mother in 1906, when the law provided for citizenship by inheritance only from American fathers. Shortly after his birth, he was brought to the United States where he resided continuously for 50 years without ever been naturalized. When the government sought to deport him as an alien, be brought an action for a declaratory judgment of the citizenship. Eight justices of this Court held that he was not a citizen of theUnited States because he did not come literally within the grant of citizenship in the statute. Surely, a federal common law where the Constitution afforded any rights of citizenship to the foreign born, they would have been exercised in favor of this man who had resided in this country for more than 50 years. On the basis of the foregoing points, the primary question presented in our view is whether the Congress in the exercise of this power to grant citizenship to the foreign born children of American citizens, they condition that grant on the child's coming to live in the United States for a certain period. William J. Brennan, Jr.: Well, Mr. Connolly, on that point, if you were right constitutionally in these situations, the congressional regulation, then what is the left of the argument of voluntary relinquishment in this situation? Joseph J. Connolly: The voluntary relinquishment Mr. Justice in our view is inapplicable here. That is not a test -- William J. Brennan, Jr.: And if that standard isn't a standard at all, it would apply on the constitutionally conferred citizenship? Joseph J. Connolly: That is correct. The legislative history of the requirement of five years continuous presence in the United States shows the Congress was concerned with the unsatisfactory status of persons abroad, having both American citizenship and citizenship in another country. This was and it is today a legitimate concern. The presence of American citizens abroad imposes on our government a duty to assure proper treatment of their persons and property. The carrying out of this duty inevitably results in international conflicts with the other nation which also regards the individual as its citizens. An examination of any of the several textbooks on nationality will reveal that there are many types of conflicts which may develop on matters such as reparations, protests, and claims for lawsuits, and it also would reveal that the fact that the law has not settled on the resolution of many of these conflicts. These conflicts are to bar the language of Mr. Justice Brennan, serious problems, inevitably implicating nationality. To continue with Mr. Justice Brennan's concurring opinion in Mendoza Martinez, “we have recognized the entanglements which may stem from dual allegiance, and have twice sustained statutes which provide for the loss of American citizenship upon the deliberate assumption of a foreign attachment.” The Congress recognized that an unconditional granting of American citizenship solely because that one of the individual's parents was an American citizen, meant that our government would risk involvement in such international disputes on behalf of persons who had no attachment or allegiance to the United States. This much, the court below also recognized. It said, “There is an undeniable danger that children born and raised abroad, in a foreign home where English may never be spoken, school where English is not thought, celebrating foreign holidays with the family of the non-American parent, will have no meaningful connection with the United States, its culture or heritage. It is a legitimate concern of Congress that those who bear American citizenship and receive its benefits have some nexus to the United States.” Plus, the Congress decided that in continuing the grant of American citizenship, to foreign born persons to which the Fourteenth Amendment does not apply, it was desirable to reduce the risk that there would be class of citizens living permanently abroad having no attachment to the United States. It sought to achieve this goal as it had done under the naturalization laws by requiring a period of residence in this country. In light of the considerations which prompted in, we think that this requirement is entirely reasonable. Warren E. Burger: What is the period of residence for an alien, is it five years? Joseph J. Connolly: I believe it is five years, for naturalization. Warren E. Burger: In other words, you're saying that it isn't too much to ask if an American citizen who is claiming derivative citizenship because he was born of an American parents in Europe or in somewhere else, ask him to do the same things that an alien must do? Joseph J. Connolly: Yes, Mr. Chief Justice, something along that line. It says that the same considerations which prompted Congress to require a period of residence in the United States for aliens, to make sure that they have some association with life in the Unites States, are the same considerations which prompted the Congress to enact this particular requirement and in this case, coupled with the fact that the presence of such people abroad imposes versions of the United States in it's diplomatic representations. The final question then is whether Congress may constitutionally, make a residence requirement, a condition of the continuation of this statutory citizenship rather than the acquisition of the citizenship. The Congress of course could have provided that children born abroad of one American parent shall become citizens after a period of residence in this country. But this would have had unfortunate consequences during the child's minority when the American parent could not be rely on American diplomatic protection for his or her child. It also would have created novel problems of status and rights when the child returned to this country in order to fulfill his residence requirement. So the Congress would like to declare the minor child as citizen, but to condition the grant of lifetime citizenship, when the child's coming to the United States and residing here for a period of time. This too we think was a reasonable decision by the Congress. It did not violate the due process rights of the appellee and others affected by the statute. Appellee had American diplomatic protection during his minority when he was dependent on his parents. There was no contention that he suffered any disability or any prejudice by reason of being an American citizen during his minority. When he came of age, the Congress in effect asked him the question that it properly could ask in granting citizenship to such persons. Is your sole allegiance to the United States or is your allegiance to Italy where you were born and raised, where you went to school, where you worked and married? The Congress asked only that he come to this country and be part of it's life for five years. There is no reason apparent for the appellee's failure to do so other than that he was too deeply involved in activities in his homeland. For us, there is no apparent reason why he should be able to command United States citizenship for the rest of his life. May I reserve the remaining time for rebuttal? Warren E. Burger: Very well, Mr. Connolly. O. John Rogge: Mr. Chief Justice and may it please the Court. In addition to the usual documents of this case, the Court should also have before it the briefs, amici curiae in one of which the American Bar Association has joined. May I spend just a brief a moment on the facts? Aldo Mario Bellei's mother was born and raised in Philadelphia where she stayed until she was 24 when she married Aldo Mario Bellei's father and moved within the Italy. Her parents have remained in Philadelphia. On five different occasions, Aldo Mario Bellei came to this country to visit his grandparents. On the first two such occasions, he came on his mother's passport. And on the second two such occasions, he came on his own passport. The fifth occasion, our state department denied him a passport, this is when he wanted to come here with his bride to visit his grandparents and he did, but he did that on an Italian passport. Aldo Mario Bellei has had his own United States passport as an American citizen for a period of 12 years. He first got it as you will see from page 6 of the appendix on June 27, 1952, if you'll turn to page 11, you will find that it was renewed from time to time until February 11, 1964. Now, the government comes along with the conditions subsequently imposed and seeks to take this way and I think this case presents the simple question, whether the Congress has the power with reference to an American citizen at birth to take away that citizenship without his voluntary renunciation and can do that consistent with the due process cause of the Fifth Amendment, that's what I think the issue is on this case. And in answer to the question that you put, Mr. Chief Justice Burger, I think it is the government's position that two aliens coming over here, having a child born here and returning to their own country or the case of a person's naturalized over here with a minor child, that those children have greater rights than a person like Aldo Mario Bellei, who by Section 1993 of Revised Statutes and as amended by the Nationality Act of 1934 was given American citizenship at birth. I think as a matter of act that Schneider against Ruck is precisely in point because Angelika Schneider never went through naturalization proceedings. Her parents came over and were naturalized at an Act of Congress then said that she was an American citizen. I cannot see what Schneider against Rusk is directly in point. And then in that case, it was held at the fact that Angelika Schneider who had citizenship by statute, she could go abroad to Germany and stay there and the three-year residence requirement was declared unconstitutional. I submit the same reasoning that in Schneider against Rusk compelled that provision to be held unconstitutional compels the Section that was attacked and held unconstitutional below which is the provision of the immigration of Nationality Act of 1952, is likewise unconstitutional. The provision at the time that Aldo Mario Bellei was born, required that he come here for five years, immediately previous to his 18th birthday and unless within six months after the child's 21st birthday, he or she shall take both of allegiance to the United States of America. Now, that Section was repealed by the Nationality Act of 1940, but that repeal had in it this proviso that the repeal shall not terminate nationality heretofore lawfully acquired. So you have someone who has American citizenship at birth and Congress comes along in a condition subsequently enacted and says, he doesn't have it anymore. Now, the government says, well, this thing about coming here for five years is really a small thing, it doesn't mean anything, it's a great hardship. A child living with his parents, it would mean, if they wanted to give him an education, they would have to have quite a few thousand dollars to send him over here at that period of his life in order to acquire it. It would draw a distinction between those who can afford to do this and those who can't. Now, the government also takes the position that such a person has no meaningful connection with the United States. Well, I submit that this country has changed in the past 40 years, where Americans living abroad have increased 20-fold from some hundred thousand a year to two million a year. Warren E. Burger: Are those permanent residents you mean? O. John Rogge: They're residing abroad, I mean they're not just travelers. As a matter of fact, Mr. Dallas wrote a piece in which he was taking about the million in Europe to which they're added a million tourists, I'm not talking about tourists. I'm not saying when you say permanently, Mr. Chief Justice, I mean they're residing there. This is-- Warren E. Burger: Non-tourists? O. John Rogge: They're non-tourists, yes. In most of the big cities of the world, you have large chunks of America today. Warren E. Burger: How many of those were military, does this record show? O. John Rogge: I think about half are military, yes, half of the two million. As a matter of fact, rather than worrying about having a meaningful connection with the United States, Europeans are worrying that we're Americanizing Europe. A study was done, 25 families with American wives, all but two fathers spoke English. There were 47 children there. 26 spoke English as the primary language or English and French with equal of fluency, only five spoke French. I submit that we should regard these international children as a valuable asset of this country. William J. Brennan, Jr.: Does this statute apply to the children -- of our military stations there? O. John Rogge: This is another thing. If a child is born of two American parents, then there is no problem, but if this Court should hold that this statute is constitutional, then another Congress can come along and say, “Children born of two American parents, we're going to take that citizenship away too” and I submit -- William J. Brennan, Jr.: Well, the answer of my question is “Yes, it does,” that this statute would on the proper facts applied, the children born to our military stations abroad? O. John Rogge: If there were two American parents, I mean if the military abroad -- William J. Brennan, Jr.: Now take this situation. O. John Rogge: In this situation -- William J. Brennan, Jr.: Where the American is in our military? William O. Douglas: An alien can be in our military? O. John Rogge: It would have to be ultimately, the Immigration and Nationality Act as almost as complicated as Income Tax Laws. I know this specific Section with which I'm dealing and I do know that the child born of two American parents, there is no problem. It's the child born of one American parent of which there's a problem and in the provisions with which I'm familiar. William J. Brennan, Jr.: What I was interested in talking about is if this statute is applicable and the one American parent is in our military and the child is born abroad, does this statute apply to affect that child's American citizenship, that's my question? O. John Rogge: I almost feel like consulting the opposition. I don't know [Laughter] Well, let me take Mr. Charles Gordon over here who does this all the time. I almost say to Mr. Charles Gordon, does he know of an exception for that situation. I don't. But in connection with Your Honor's question, I do want to emphasize that if this statute is held constitutional then Congress has the follow some future session that come along and take away the American citizenship of a child born abroad of two American parents, on the government's interpretation here. That's my point, that in today's world of United Nations and I haven't emphasized this but I think it is important that we should regard these children as an asset. I mean, we now have diplomatic relations with over 100 foreign countries where members of more than 70 international organizations, we give military and economic assistance to over 50 foreign countries. Our business enterprises have more than a hundred billion dollars invested abroad. Speaker: Don't you think those are arguments that are a little bit strong that this policy arguments that they are unconstitutional? O. John Rogge: On a due process question, I'd say yes Mr. Justice Harlan, but I also say this, I'm trying to meet the argument of the government where they think that these children are not an asset, that they're burden we should get rid off and they talk about no meaningful connection to the United States. And I would like to counter that by saying that this is an asset that this country should welcome rather than say that they are burden. Speaker: Well I didn't understand the government to be arguing that there. Their argument is that this is irrational thing to do. They might disagree on lots of times as I understand it is that depending on their mistakes is their argument is in their power? O. John Rogge: Well, I'd say on that I don't think it's a rational thing for Congress to do, with reference to someone who has American citizenship at birth to come along with condition subsequently imposed. In other words, the Aldo Mario Bellei got American citizenship in 1939 and he had it, at l east he had it until 1952 when the Immigration and Nationality Act came along and said that “Well, now you have got to come here and be here for five years between the ages of 14 and 28.” And those early years are the years if he's in his own family context unless you're a child of wealthy parents, they can't afford to send him over here for education during that period. This is a year when he goes to college. The year when goes to college. Warren E. Burger: Well is Congress entitled to think that it would be important for the person to go to college or spend those impressionable years in this country in order to lay a foundation for being a good citizen? O. John Rogge: Well, I'd say that if that's what they have in mind, Congress has mistaken in today's world because -- Warren E. Burger: There might be as Justice Harlan's said, that's they have the right to make their own mistakes, but can we correct it assuming it's a mistake? O. John Rogge: Under the Due Process Clause of the Fifth Amendment, yes. Because this is an unreasonable requirement, it's an unreasonable classification. Warren E. Burger: Then we don't correct it, “because it's a mistake.” We deal with it because it offends the Constitution? O. John Rogge: Yes. And my position is that this does violate the Due Process Clause of the Fifth Amendment and I think that Angelika Schneider against Rusk is directly in point and I think the Courts approach in Afroyim against Rusk is also important. But as to the arguments that are made in the government brief that these children are a liability. I think on the contrary, on the context of today's world where we make supersonic flights to Europe now for about six hours, and you may have colonies on Mars in the future century where you are -- where we are interdependent nations, I think we should regard these children as an asset. Byron R. White: Well Mr. Rogge, you said -- under your argument, would you reach the same result if Congress had said that children of American -- of one American parent born abroad will become a citizen, but only upon residing in this country for five years. O. John Rogge: You put me a different case when you put it as a condition preceding, that's not this case. In other words, if the Congress had said, Congress didn't say that, but if the Congress had said “These steps must be taken before you can become a citizen”, that's one thing. Byron R. White: So we could say you can't become a citizen until unless you come here for five years between the ages of 14 and 28? O. John Rogge: I'd have more trouble with that case. That would be a -- if were put as a condition preceding, I could concede it -- Byron R. White: That wouldn't be irrational? O. John Rogge: It wouldn't be irrational maybe, but that's not what Congress has done. Byron R. White: Well I know, but you're making the argument about rationality and I just, I have some troubles seeing differences between the cases in terms of rationality? Warren E. Burger: This is what we require to the foreign born alien, isn't it? The residents here for five years, except we don't pinpoint it as to age. O. John Rogge: That's right. Warren E. Burger: But is there a distinction because of the age factor on Justice White's question? O. John Rogge: No, I think it's whether as condition to preceding or a condition subsequent. The Congress had said that these children, and I may say Congress has long said that a Child born of an American father is a citizen at birth. There hadn't been any problem about that or was ever questioned one way of the other and then when the statute was broadened to include American mothers, it was then that you got these conditions in here. Warren E. Burger: But if there's any problem -- if you have any problem in answering Justice White's question on the constitutional side, then there is a problem which requiring foreign born nationals or aliens of another country to reside here five years before getting citizenship, is that -- O. John Rogge: I've said, I distinguished the two cases and Mr. Justice White was saying that -- by answer -- I thought I understood it that way, Mr. Justice White, but there was no distinction between the condition preceding on the condition subsequent, I think there is. And I think, the Congress could very well, I mean I could go along with part of the premise, the Congress might have the power to say that a child born abroad of an American parent will not get citizenship unless they come here for five years as a condition precedent, but that is what Congress did here. The Congress gave the citizenship, they were some conditions subsequent but even those were repealed. Byron R. White: But even if there isn't any difference between the two cases, you haven't lost their case yet? I mean, let's assume it's wholly rational, it's still a question of summary power? O. John Rogge: Yes, yes. That's a simple question in this case and Congress consistent with the due process clause of the Fifth Amendment expatriate without consent. Potter Stewart: I see, but your argument is purely a due process argument, is it not? O. John Rogge: Under the Fifth Amendment, yes. Potter Stewart: And it's therefore one of the rationality or -- O. John Rogge: Yes, it has to be the -- Potter Stewart: Fundamental fairness? O. John Rogge: Yes. Potter Stewart: That's it, fundamental fairness. O. John Rogge: Mr. Justice Stewart, I have a great feeling for the concept of due process as fundamental fairness. I know that Mr. Justice Black has had a problem with that, but the due process as Mr. Justice Frankfurter expounded it, as Mr. Justice Harlan would now expound it that it has to be consistent with fundamental fairness or the conscience of the time and to my mind -- Hugo L. Black: Well, that is fundamental fairness according to five members of this Court? O. John Rogge: Yes, yes [Laughter] if Your Honor please. And as far as I'm concerned, I am prepared to take the judgment of what I think is one of the great institutions of the world to take the minds, the trained minds of the members of this body, sitting down at any particular time at a problem and coming to a conclusion and I'll be glad to abide, but I'll go one step further. With that same concept, and the concept of this country as a maturing society, let us take for instance capital punishment, I have every confidence that someday in the future, if the world survived that this body is going to say that capital punishment violates due process. Hugo L. Black: But why do they have to say it if it does? If capital punishment just violates, why do you hope that this Court would say it does someday, why don't you hope that that the Constitution will be amended in the normal constitutional way? O. John Rogge: My concept of due process Mr. Justice Black, which I think goes back to the law of the land at Magna Carta and to Bracton who said that the King was under God and the Law, this concept which is an evolving concept, I think the majority of this Court can determine at any time and place what that due process cause means. Hugo L. Black: In other words, anything that they think fundamentally unfair is unconstitutional? O. John Rogge: Yes. Hugo L. Black: What do you need with any other Constitution with that? O. John Rogge: Well, this Court has done very well, under this Constitution and for my part, my admiration goes with it. I am prepared to abide with what the majority of this Court says. Comports with fundamental fairness, which in our Constitution in two clauses in the Fifth Amendment and in the Fourteenth is called due process. Speaker: Is that a way to see what we decide [Laughter] O. John Rogge: I'll still abide by that Mr. Justice Harlan. William J. Brennan, Jr.: May I ask Mr. Rogge, do you rely to all on the first sentence of the Fourteenth Amendment? O. John Rogge: No. I'd have to say no. I pitch mine on the Fifth Amendment, but I say this. I think that -- William J. Brennan, Jr.: But what about I take it or doesn't, let me ask you, do you think that the question of voluntary relinquishment -- where do you get this, if you don't get it under the first sentence of the Fourteenth Amendment? I gather this -- the basic constitutional authority here is the power of the Congress, to enact uniform naturalization laws. O. John Rogge: Well, it's either that or you have one there on foreign relations. I haven't gone into this because no body has challenged the constitutionality of the statute giving American citizens at birth to the child born abroad with an American parent. Byron R. White: Did you just say in your early argument is that the restriction is irrational and it's void? O. John Rogge: Yes, under the Due Process Clause. William J. Brennan, Jr.: Well, I thought you opened by saying something to us about “He could loose it except by voluntary relinquishment”? O. John Rogge: Yes, yes. Congress cannot expect-- William J. Brennan, Jr.: You don't make that argument based on the first sentence of the Fourteenth Amendment but just as part of your irrationality argument, is that it? O. John Rogge: Due Process Clause of the Fifth Amendment. William J. Brennan, Jr.: I see. O. John Rogge: And I would add this. I think that Angelika Schneider was just as much as statutory citizen as Aldo Mario Bellei, because she didn't go through any naturalization proceeding. There was a statute which said, because her parents were naturalized, she was a citizen and what's the difference between that statute and the one which declared Aldo Mario Bellei a citizen at birth. I think Schneider against Rusk is directly in point in this case. Warren E. Burger: One difference was in the residence of the parents isn't there? Schneider's parents were here? O. John Rogge: Schneider's parents were here, yes, but there is also a provision with referenced to Aldo Mario Bellei's mother that she had to be here for ten years, at least five of which were after the age of 14. There is also a residence requirement in 1993 as amended and it's 10 years. Warren E. Burger: Thank you Mr. Rogge. Mr. Connolly, do you have some more for us? Joseph J. Connolly: Yes, Mr. Chief Justice. William J. Brennan, Jr.: Mr. Connolly, would this reach a situation of the American parents who is in the military abroad? Joseph J. Connolly: Mr. Gordon advices that the statute is applicable to the child of an American service men or women overseas, married to an alien? William J. Brennan, Jr.: We must have a lot of situations like that I guess. Joseph J. Connolly: Yes, there are those -- William J. Brennan, Jr.: A lot of American military men are marrying German girls and Koreans, everyone? Joseph J. Connolly: But those situations provide no difficulty under this statute because in the ordinary course of the marriage and the development of the child, serviceman is rotated back to the United States, there's usually no intention in those cases to relinquish American residency as it was in this case. William O. Douglas: Some of them were discharged abroad and reside there. Joseph J. Connolly: Yes, that's entirely possible but in the great majority of cases, they return back to the United States, the child is born and raised in the United States. Warren E. Burger: You have about three minutes left Mr. Connolly. Joseph J. Connolly: Sir? Warren E. Burger: You have about three minutes left. Joseph J. Connolly: Thank you sir. Mr. Rogge I believe, certainly unintentionally left the impression that the requirement of presence in the United States was imposed on Mr. Bellei after a conferral of American citizenship on him at birth. That is not quite accurate. He received his American citizenship pursuant to Section 1993 of the Revised statutes as amended in 1934 and that's as the statute set forth in page 44 of our brief, and it does provide for a period of residence in the United States. Indeed a more onerous period of residence in United States in present law under which Mr. Bellei's situation was tested because it must be accomplished by the age of 13 I believe. Now, Mr. Rogge also misinterprets the government's position, if I may say, on the moral word, if you will, that he children who were born overseas and who are subject to the requirement of the statute. We make no claim that these children cannot be good Americans, but we think that there is something much more to performing the duties of an American citizenship from watching American movies and American television overseas, and eating hotdogs and bubble gums. And what Congress was looking for and what Congress had provided for by the period of residence in the United States was the assurance that these children, these young adults, wherever they reside for the rest of their lives and they could go back overseas and have no restrictions on them or whatsoever, would be persons who had some meaningful relationship to the United States, some ability, some personal understanding of how the institutions and people of the United States operate. And some ability if necessary to contribute to the development of those institutions, a personal stake, in other words in the institutions and people of the United States. Another point that I would like to make in the very few minutes that I have left, is that Mr. Rogge invoked considerations of a shrinking world, expanding notions of nationality, but these notions were encountered due to a developing trade and international law, which I'm not entirely familiar, but I've done some research on, which shows that because of the problem of duo nationality, international lawyers are struggling with the concept similar to that in our domestic conflict of laws of effective nationality as recognizing the persons may have citizenship in a number of states or usually two countries. Where the rights of the citizens are to be asserted, the test is where the real and effective citizenship of the individual is and one exercise in this development is the article of the convention of the conflict of nationality laws in 1930 which I will not take time to read. Another example is the decision of the Court of International Justice, in the Natobong case in 1955. For those reasons Mr. Chief Justice, we submit that the judgment of the District Court should be reversed. Warren E. Burger: Thank you Mr. Connolly. The case is submitted. Thank you Mr. Rogge.

Earl Warren: -- versus Wilber M. Brucker, Individually and as -- of the Army. Mr. Shapiro, you may continue. David I. Shapiro: Thank you, Your Honor. May it please the Court. Two questions were asked to me yesterday by members of the Court which I think either, one I was unable to answer or two which I don't feel that I have answered adequately. And I'd like to address myself first before continuing with my argument to those questions. The first one was the question of Mr. Justice Black as to whether or not the Uniform Code of Military Justice contained a provision similar to the one with respect to conduct on becoming an officer or a gentleman for enlisted personnel. There is such an article in the Uniform Code of Military Justice, it's the general article, Article 134. So it seems and as a matter of fact, the case is so whole that an individual who commits a crime while he is a soldier and he gets in trouble with the civilian authorities would be subject to the court-martial jurisdiction under Article 134 of the Uniform Code of Military Justice. Equally true is the situation where the enlisted man writes scandalous letters to his commanding officer's wife. That too would come under Article 134 of the Uniform Code of Military Justice. So we see that in every -- Felix Frankfurter: Is that because -- is that because the commanding officer's wife that he wrote to some civilian outside, would that make a difference? David I. Shapiro: I think it would not make any difference at all, Your Honor. I think it would have any scandalous conduct which would reflect adversely on the Army would come within the provisions of Article 134. Felix Frankfurter: Writing a private letter isn't a scandalous conduct in the ordinary sense, isn't it? David I. Shapiro: No, sir. I don't think that it would be at all. Felix Frankfurter: But if you have to -- he couldn't -- if he wrote a letter, private letters like that, they can't do anything about that. David I. Shapiro: I don't think that they could with – under Article 134. Felix Frankfurter: I'm not suggesting they couldn't court -- they could court-martial, but they couldn't take note of the fact he is that kind of a person. David I. Shapiro: I agree with you, sir, on that. Felix Frankfurter: Well, what do you agree with? David I. Shapiro: I agree that I don't think they could take notice that he was that kind of a person. Felix Frankfurter: What is that? They could not. David I. Shapiro: No, sir, I don't -- Felix Frankfurter: All right. David I. Shapiro: Now, I think from the answer to this question, it now becomes clear that army regulation seeks -- Felix Frankfurter: You mean they couldn't discharge him? David I. Shapiro: No, sir. They couldn't discharge him if he wrote such kind of letters. I mean they could discharge him for any reason that they wanted but the question here is -- Felix Frankfurter: Well, I'm not reaching the question here. I just want to know what the -- what the powers are not what the question -- David I. Shapiro: Well, I think the Army can discharge an individual for any reason it sees fit. Felix Frankfurter: Just because they don't like his face. David I. Shapiro: Yes, sir. If they don't like his face, they can discharge him. Felix Frankfurter: But if they discharge him because he wrote a systematically scandalous letter to private people, they could not -- they -- you said they could discharge him but they couldn't make public that fact. David I. Shapiro: Well, I think -- well, I think the answer to that question would be that they could discharge him and they could not make public that fact. Now, I think we can see then that -- Felix Frankfurter: They ought to give him an honorable discharge? David I. Shapiro: I would think so, Your Honor, yes. Now, with respect to Army Regulation 615-360, we now see that unless the man has been subject to a general court-martial, unless he has been subject to more than one special court-martial, and if he has ratings of excellent as to character and ratings of excellent as to efficiency, he must receive under 615-360 an honorable discharge with of course the exceptions spelled out in the Army security risk regulation as set up and established by Department of Defense directive 5210.9, which we are challenging here. The second question which I would like to address myself to is the one asked to me yesterday by Mr. Justice Frankfurter. And that question was whether or not our position in this case could be analogized to the situation of an individual who had been fired from government civilian employment. And the question I think was whether or not it was our position that the Secretary of the Army could not make a public statement saying why the individual had been discharged. I would agree with that position but that's not this case. An army discharge certificate is not a notification of personnel action which terminates a federal civilian employee from his job. An army discharge certificate, that is an honorable discharge certificate, is much more than that. Not only does it record the fact of the separation of service but it is in the words of this court, a formal final judgment by the Government on the military record of the soldier. And from that document comes certain very valuable rights, community respect and honor are established by it, and those rights are conclusive, property rights, rights for example to various benefits provided by the state, provided by the Federal Government, flow from that document. And a certain kind of personal honor, a personal status of community respect and honor are inherent within the document itself. And I think -- Felix Frankfurter: When you say inherent you mean that -- David I. Shapiro: Inherent in the honorable discharge. Felix Frankfurter: What you mean is that an honorable discharge carries certain representations to the public, is that it? David I. Shapiro: Yes, sir. With respect -- Felix Frankfurter: Now, what are those representations? David I. Shapiro: Those representations are as follows. That during the time the individual was in the service, he comported himself honorably and he left the service in a status of honor. Felix Frankfurter: How about the case you put earlier? writing a lot of scandalous -- obscene letters to people. David I. Shapiro: I would say -- Felix Frankfurter: Do you say that that has nothing to do with his carrying a sword and shooting and polishing his shoes et cetera, is that it? David I. Shapiro: That's correct, Your Honor. Felix Frankfurter: I thought it would. David I. Shapiro: I would say if that did not come under Article 134, it could not be used to stigmatize his discharge certificate. Felix Frankfurter: He may have been found cheating at cards in all powers. I don't know whether that would be court-martial attempt, probably not, would it? David I. Shapiro: I really don't know, Your Honor, but I would think not. Felix Frankfurter: (Voice Overlap) but he -- suppose it was found he done that all the time, that has nothing to do with the fact that he might be a very brave and rather even if you plea a distinguished soldier in action. David I. Shapiro: That's correct. Felix Frankfurter: That would be proper. Those are not inconsistent as we know about this. David I. Shapiro: No, sir. Felix Frankfurter: Nonetheless, he would have to be given honorable discharge. David I. Shapiro: I would think so, Your Honor, unless he was subject to court-martial jurisdiction under 134. Now -- Felix Frankfurter: Now, could -- could the Congress of United States take a different view of this? David I. Shapiro: I would think that they very well might but they haven't yet. As a matter of fact, it has been our position that when Congress reenacted Article 108 of the Articles of War and now it's set forth in the present statute which is the statute of May 5, 1950, which is the reenactment of Article 108 and they reenacted it without material change. It is our position that they -- that they incorporated all of the rulings of the judge advocate general and the attorney general of the United States within their reenactment. Felix Frankfurter: What your position is as I understand it yesterday and today that as a matter of statutorylimitation upon the defense services or the Army, that as a matter of statutory limitation, statutory requirement, there are only two kinds of discharges that they'd be given, one honorable and one dishonorable. And the dishonorable discharge requires certain conviction or offenses or misconduct in the actual soldiering in its technical, narrow restrictive meaning of that word, is that right? David I. Shapiro: No, Your Honor, that's not correct. The army has the right, I think, by statute to give a number of various kinds of discharges. Felix Frankfurter: Such as? David I. Shapiro: They can give an honorable discharge, they can give a general discharge under honorable conditions, they can give an undesirable discharge, they can give a bad conduct discharge and they can give a dishonorable discharge. The dishonorable discharge is by sentence of general court-martial, the others are through administrative regulation which have been established by the Secretary and have been within his power since the time the Articles of War were first enacted. Now, this is the point I'm trying to get at and I think that this is really the key issue with regard to the statutory construction. It's just this. The Army, in issuing the kinds of discharges that they issue have to take into account and be limited by those things which are relevant to the discharge itself. For example, a discharge certificate is not a certification by the Army, that a man was for example or was not a bank robber, before he was inducted, and it's not a certification either that he may not become a bank robber after he's released from the military service and goes into civilian life. Felix Frankfurter: But you're not restricting your argument as you indicated yesterday to pre-service disqualification because you said in your case there is an element of conduct under scrutiny during -- David I. Shapiro: That's correct. Felix Frankfurter: -- during service. David I. Shapiro: That's correct. Felix Frankfurter: But you're now drawing a line between activities and conduct, call it what you will, what you regard as unrelated to soldiery. David I. Shapiro: Yes Your Honor. Felix Frankfurter: And you say the mere quality of his character is unrelated to soldiers. David I. Shapiro: No, I say that the quality of his character is very much related to his soldiering because the Army provides a system whereby his character can be rated. And as a matter of fact, in this particular case, wherever there were ratings as to this man's character, he was rated as excellent. Felix Frankfurter: But it can't show on the -- on the discharge. David I. Shapiro: Well -- Felix Frankfurter: In this case, we're dealing with a discharge that is general discharge with -- what is (Voice Overlap) -- David I. Shapiro: Under honorable -- general under honorable conditions discharge. Felix Frankfurter: And -- and your objection to that is that it's not explicitly stated an honorable discharge. David I. Shapiro: It is not an honorable discharge. That is correct, Your Honor. Felix Frankfurter: And it was given in this form because the Army thought that that which took place while he was in the service or on his conduct as a soldier or his qualification as a solider or the kind of authentication the Government wanted to make which barred them, which led them to prefer general discharge under honorable conditions rather than honorable discharge. David I. Shapiro: I'm afraid I can't speak for my adversary, sir, but I -- Felix Frankfurter: I'm talking about you. David I. Shapiro: I don't think that's the Army's position. I think really that they found that the letters were really de minimis. I think they were actually concerned with the conduct which predated his -- Felix Frankfurter: Well, I know but -- David I. Shapiro: -- induction. But that so far as we're concerned is not the issue. Hugo L. Black: Why -- why is that not a part of the issue? David I. Shapiro: We think that because of the two letters which he wrote, the Army could consider this as part of an overall question of conduct. Hugo L. Black: How do we know that's the only reason they did it? David I. Shapiro: Well, I wouldn't say that that was, and I couldn't speak of course for the Army. Hugo L. Black: Suppose they did it for that reason, and they did it for other reasons, I assume other reasons that were improper for them to consider. What is the situation? David I. Shapiro: Well, I -- I would think that it would depend upon whether or not the conduct which occurred subsequent to induction was de minimis or not and I think that would be a question for this Court to decide on the basis of the record. Hugo L. Black: How could you decide it line of this general position in connection with agencies and are with verdicts of the conviction. And if there are several reasons given, some are bad, it might not -- consequence might not have resulted and had been limited to the good reasons. David I. Shapiro: Well, I think really, Your Honor, we're not limited to that question here for this additional reason. Hugo L. Black: I -- I want to talk about being limited. I was wondering why both questions are not present in your case, maybe they are none. So, I was wondering why both questions are not present. Number one, whether it's legal to consider a man's past character as, I understood you to say was done here, investigated, rely on that. Secondly, whether it's legal to consider what happened after he was in the Army. Now, assuming that one should reach the conclusion that the discharge was justifiable on one of the two causes, how could we know that it would have occurred had they not relied on both? David I. Shapiro: Well, with respect to the question of findings, Your Honor, I think perhaps it might have to be sent back for a determination as to what the Army relied on. But I really feel and it's our position in this case that the two letters that this man did write after he was inducted had nothing whatever to do with the actual character of the service he rendered. Hugo L. Black: I understand that's your argument with reference to it as to why it was wrong to rely on it. David I. Shapiro: Yes, sir. Hugo L. Black: But do you concede it was right to rely on the other part as to what happened before he got into -- David I. Shapiro: No, sir. We do not concede that all. We say that with respect to pre-induction conduct, number one, and with conduct antedating induction, having nothing whatever to do with the character of the service, none of these factors can be considered with respect to the kind of discharged issue. Now, let me go into the jurisdictional question for a moment, the question of this Court's power to review. Felix Frankfurter: To review what? David I. Shapiro: To review the issuance, the action of the Army in issuing this man the kind of discharge he was issued on the basic facts of this case as they stand admitted before the Court. We think that under this Court's holding in Perkins against Elg, even if the District Court had no power to compel the Army to issue the petitioner here an honorable discharge certificate, certainly, we think it had the power to declare invalid or unconstitutional the kind of discharge he did get if the reasons for the action were invalid or unconstitutional. Nevertheless, the respondent argues that the legislative history of the statutes providing for the Board -- the Army Discharge Review Board and the Army Board for the Correction of Military Records, demonstrate a congressional intent to preclude judicial review of this kind of case. We disagree. We think that the legislative history of the term "final" as used both in Section 301 of the Servicemen's Readjustment Act of 1944 and in 207 of the Legislative Reorganization Act, indicate that Congress did not preclude judicial review of arbitrary or capricious administrative action by the military. Of course, if Congress had said that the administrative determination not only should be final and conclusive but that no court of the United States should have jurisdiction to review such determination, of course, the army's position would be much stronger. But here, so far as Section 207 is concerned, such words were specifically deleted from the statute by committee amendment. Now -- Felix Frankfurter: In this -- this statute and even the bill. David I. Shapiro: From the bill, that's right, Your Honor. Now, the second half of the Army's attempt to sidestep what we consider the basic issue here, is the contention that Harmon has not suffered injury to a legally protected right. The Army says that since the general under honorable conditions discharge entitles Harmon to virtually all federal veterans' benefits. He hasn't suffered the kind of injury which would give him the standing to raise the issues he seeks to raise in this case. Now, while it's true that the general discharge will not automatically deprive Harmon of federal veterans' benefits, he will be deprived of a number of veterans' benefits provided by the laws of the State of New York. The New York statutes make marked distinction between an honorable discharge and a discharge under honorable conditions and I call the Court's attention specifically to the Education Law of the State of New York and the distinction between Section 609 of the Education Law and Section 608 as it's discussed in our brief. Hugo L. Black: Where is discussed in your brief? David I. Shapiro: It's set forth, Your Honor, at page 33 of our brief. But we think more important than the loss of these state veterans' benefits is the stigma which attaches to anything -- Felix Frankfurter: Before -- before you move on to that. David I. Shapiro: Yes, Your Honor. Felix Frankfurter: I understood you to say that the New York Education Law makes a distinction between an honorable discharge and a general discharge under honorable conditions. David I. Shapiro: No, just a discharge under honorable conditions, they don't use the word general in the statute. Felix Frankfurter: To make it -- what is the distinction between? David I. Shapiro: The distinction between the two is -- Felix Frankfurter: No, what is the distinction that the New York Education Law makes? David I. Shapiro: Well, I think Section 608 has to do with soldiers who have been -- educational benefits for soldiers who have been discharged under honorable conditions. And Section 609 has to do with scholarships for the children of veterans who have been honorably discharged. The types of discharge, a discharge under honorable conditions and an honorable discharge are very, very much different. The --the army regulations themselves indicate that the general discharge is basically a substandard discharge for those who do not meet the qualifications of an honorable discharge. Felix Frankfurter: Is this discharge under honorable conditions? When does that get into the -- in the former military law? David I. Shapiro: I think that's been in, Your Honor, since some time after the First World War, but I don't think that I'm quite sure on that. Felix Frankfurter: So that the -- what is it, regulations or -- or -- David I. Shapiro: It's established by army regulation. Felix Frankfurter: And the New York Education Law responds to that record David I. Shapiro: No. Felix Frankfurter: It's on that distinction? David I. Shapiro: I don't think that they make that kind of distinction but I think that they've inherently made that distinction in the statute so that if the statute would be applied to Harmon's children, he would not be entitled to an educational scholarship for those children under Section 609. Felix Frankfurter: What I want to know is -- the New York statute take cognizance of this distinction made in the army regulations. David I. Shapiro: I think it would, Your Honor, there have been no rulings on it, but I do think they would. Judge Frank indicated they would in the case of Schustack against Herren which was in the Second Circuit, and he thought they would. And I think the statute shows a marked distinction between an honorable conditions discharge and an honorable discharge. As a matter of fact, there is an Air Force regulation, Air Force Regulation 39-10 Section 3, which provides that a general discharge may be a disadvantage to an airman seeking civilian employment. And we say that much more important than the state veterans benefits, is this stigma which attaches to anything other than an honorable discharge and much more important in Mr. Harmon's case is the fact that as a law student and perspective candidate for admission to the bar, he may find by reason of the general and honorable conditions discharge, a great deal of difficulty with the Committee on Character and Fitness for the first judicial department of that State. Judge Bazelon in his dissent below, we think, put it very, very succinctly when he said, "But whatever may be said of the technical legal equivalence or difference between the two types of discharge from a real life point of view, they are vastly different. The portion of our population holding honorable discharge certificates from the armed services is now so great that an adverse reflection is inherent in a certificate which is other than honorable." This is of course confirmed by the statement of appellee's counsel in oral argument, that every soldier gets an honorable discharge unless there is some blemish on his record on account of which he receives the discharge other than honorable. Now -- Felix Frankfurter: How -- how does one reach that conclusion? I mean speaking for myself if I hadn't read that and read all this, it never would have occurred to me that the fellow has a piece of paper that he's discharged under honorable conditions, that honorable doesn't mean the same thing as an honorable discharge. I know that isn't so but how do -- how can one be so sure that inherently there is a difference? David I. Shapiro: I think -- Felix Frankfurter: Do honorable, do the words honorable mean different things, as -- as they're differently used? David I. Shapiro: Because the term is general, Your Honor. It's an administrative discharge which -- I mean the normal type of discharge is an honorable discharge. It says in big letters on it, "Honorable Discharge." Those are the standard words which are used on the discharge certificate. Anything other than that immediately catches the attention. Felix Frankfurter: Well, I just wonder if that -- David I. Shapiro: Now -- Felix Frankfurter: I take notice of that as a psychological fact so I myself -- it never would have occurred as to my stupid mind. David I. Shapiro: Now, if -- Speaker: There is nothing on the face of the certificate that indicates that he was discharged for security reasons. David I. Shapiro: Yes Your Honor and that's exactly the point I'm coming to now. Now, it's true that the term “Army Regulations 604-10”, that's the army security risk regulation, does not apply on Harmon's discharge certificate or on his official report of separation. However, both the Department of Defense Director and AR 604-10 itself require that the discharge certificate be so marked. Now, since clerical mistakes -- Charles E. Whittaker: Is this not on this one? David I. Shapiro: Not on this one, Your Honor. But -- Charles E. Whittaker: (Inaudible) to it at all. David I. Shapiro: No, sir. But since clerical mistakes or omissions can always be corrected on the separation certificate even after its issue, we cannot presume unless of course this Court reverses the court below that the army will fail to correct this omission or mistake from its own -- in accordance with its own regulation, and of course the Director from the Department of Defense. Felix Frankfurter: But isn't the separation certificate a different thing from discharge certificate? David I. Shapiro: No, Your Honor, it's sometimes used in lieu. Felix Frankfurter: Doesn't every soldier get a summary, a brief of his war -- of his military record? David I. Shapiro: That's right. It's -- Felix Frankfurter: And that's a very different thing from the discharge certificate. David I. Shapiro: Actually, no, Your Honor, it is not. Felix Frankfurter: (Voice Overlap) -- David I. Shapiro: They -- they are interchangeable in this sense. Felix Frankfurter: It's surprising. David I. Shapiro: The official report of separation from the Armed Forces of the United States is today given for those who are released from active military duty and placed in the inactive reserve. They actually do not get an honorable discharge certificate until they have completed their required eight years of two years active service, six years inactive service. So that for -- in the large part of those people who are inducted under the Universal Military Training and Service Act, they get when they are released to the inactive reserve what is know as an official report of separation, the DD Form 214, which in most cases serves in lieu of the honorable discharge. Now here, this man was discharged before his 24 months of active military duty. So he did get a discharge certificate as well as an official report of separation. Felix Frankfurter: Did you say he gets -- you get this 214 in lieu of a discharge? David I. Shapiro: Yes, Your Honor because -- Felix Frankfurter: And are you saying in that separation, in that 214, the Army can't put down why he was separated. We haven't got that question before us at all. But I'd suppose, unless you correct me -- unless I'm corrected that that's a very different thing from the piece of paper called a discharge. And that gives a summary history of his -- of his military record and that is -- may be called for if he seeks to re-enlist, isn't that right? David I. Shapiro: That's correct, Your Honor. And that's exactly -- Felix Frankfurter: Well, that's not this. That's not here before us. David I. Shapiro: Oh, yes. It is, Your Honor. If I may -- if I may be -- presumed to say that. Felix Frankfurter: Well, if it -- but have we got that certificate (Voice Overlap) -- David I. Shapiro: Yes, sir. It's set forth at 111 and 112 of the printed record. Felix Frankfurter: And are you also challenging the right of the Army to do that? David I. Shapiro: Yes we are, Your Honor. Felix Frankfurter: Well, I -- I don't understand that. David I. Shapiro: We say that that has -- that statement on the record has nothing whatever to do with a man's service, because in box one, the first box you come to on the official report of separation, is the box which says "Character of separation." And it seems to us that if a man was an excellent soldier, the character of separation has got to be nothing less than honorable. Felix Frankfurter: But this DD 214 isn't what the word at large seems, does it? David I. Shapiro: It may very well, Your Honor, it's used in lieu of the actual discharge certificate. It's the thing for example which the veterans administration uses to base its benefits on. Felix Frankfurter: I'm not saying it isn't used. All I'm saying is I am greatly surprised. I hadn't realized if it's to hear what the Government says that we are dealing here with the rightness of the Government to reissue 214. David I. Shapiro: As well as the certificate itself. Felix Frankfurter: All right. David I. Shapiro: Now, it seems to us that with the general discharge being subject to an identification of the type -- William J. Brennan, Jr.: May I ask something as to this? Isn't this one document, face side is the discharge and the reverse side is the 214? David I. Shapiro: No, Your Honor. That's the way -- William J. Brennan, Jr.: Two separate documents? David I. Shapiro: -- they have been printed, they are two separate documents. William J. Brennan, Jr.: Has that always been so or is that different? David I. Shapiro: To my knowledge it's always been so. William J. Brennan, Jr.: So, that so also stops? David I. Shapiro: I would think so, but I think they get a different kind of a discharge certificate -- William J. Brennan, Jr.: Well, I know one is (Voice Overlap) -- David I. Shapiro: Now -- William J. Brennan, Jr.: Put in mind, the face was discharge and the reverse was just 214. David I. Shapiro: Well, that may very well have been but I know that for enlisted men, that they do issue two separate documents. I have got two separate ones. [Laughter] Felix Frankfurter: Then -- but you are denying that that's the routine that they are used -- that there are normally two documents. David I. Shapiro: No, there are normally two documents. Felix Frankfurter: Well, yes. And are you saying that there can be no record made anywhere of the basis for his discharge? David I. Shapiro: I think that the basis for the discharge is the man's military record. Felix Frankfurter: Well, I understand but if he is severed because for a reason, they cannot put on record why he was severed, is that right? If they hadn't -- David I. Shapiro: That's correct. Not on his discharge certificate or on his official report of separation. Felix Frankfurter: How about some document in the war department? David I. Shapiro: They can do whatever they want with that because as far as we are concerned, that's never shown to the public. That's not the certification that the man has. It's not the document which gives him rights to various benefits and to what we term community respect and all. I see that my time is up. Earl Warren: Yes, Mr. Shapiro. Mr. MacGuineas. Donald B. Macguines: May it please the Court. If I may ask the Court to turn again to page 112 of the record, which is the photostatic copy of the actual discharge certificate received by the petitioner. This is the document which is stated to impose such horrendous consequences upon petitioner that it violates his constitutional rights. Felix Frankfurter: No, not his constitutional rights to the person -- as I understood Mr. Shapiro's argument is that the terms under which an honorable discharge must be given and defined by a statute and that he comes within the terms of the statute. Donald B. Macguines: Well, as I understand it -- Felix Frankfurter: So we may reach -- so he may not reach the consequences. Donald B. Macguines: Yes, but that is an alternative contention which he makes, I believe. Now, the only difference in form -- Felix Frankfurter: You don't start with the constitutional proposition. Donald B. Macguines: Oh, I certainly do not intend to, Your Honor. Felix Frankfurter: All right. Donald B. Macguines: The only difference in form and content between this general discharge certificate which petitioner holds and the honorable discharge certificate which he asked this court to compel the Secretary of the Army issue to him is the heading, first, instead of the large type general discharge would be the words "honorable discharge." And then there is an additional statement in the honorable discharge certificate that it is awarded as a testimonial of honest and faithful service. Now, that testimonial is omitted from the general discharge certificate and that is the only distinction in the two types of certificates upon which petitioner bases his whole case. Now, to clarify the statements of petitioner's counsel with respect to the report of separation form, the DD 214, the original of that form is the official army record maintained in the War Department, the official record of the soldier's service. It is a copy of that record which is given to the soldier as well as the formal discharge certificate. Speaker: They are separate pieces, separate documents (Voice Overlap) -- Donald B. Macguines: As I understand it, they are separate documents. Hugo L. Black: So why is this -- I don't quite understand it. On page 111 is -- purports to be one side of the document, on page 112 the other side, is that wrong? Donald B. Macguines: No, they're -- they're merely printed. That's merely the way the printer chose to print it in the record. Hugo L. Black: They are two separate pages? Donald B. Macguines: Completely separate documents. Earl Warren: Mr. MacGuineasm, you minimize the difference between this discharge and an honorable discharge and I think it strange that Mr. Shapiro would -- would urge that there is a great difference. What is the difference and -- and why do you have the two -- two forms of discharge if you please? Donald B. Macguines: The difference is, both are given under honorable conditions, they represent that the solider has served under honorable conditions. But the honorable discharge certificate is -- Earl Warren: Now, wait a minute. Do they -- they served under honorable condition, is it -- Donald B. Macguines: Yes. Earl Warren: -- is it -- do both of them mean that he served honorably? Donald B. Macguines: Well, the -- the official phrase in the army regulations is served under honorable conditions and that I take it means honorably whether the discharge is the honorable discharge or the general under honorable conditions. Earl Warren: In other words, both of them say that he served honorably while in the armed forces? Donald B. Macguines: They say he served under honorable conditions. Earl Warren: Well, I know. Donald B. Macguines: -- that's the exact language of the certificate. Earl Warren: But you were -- you were trying to minimize the difference between these two discharges. What I want to know is, does the general discharge import that he served honorably in the Army? Donald B. Macguines: Yes, surely. Earl Warren: All right. Donald B. Macguines: Precisely. Earl Warren: That's all I want to know. Donald B. Macguines: I'm sorry. Felix Frankfurter: What is the distinction then? Donald B. Macguines: The distinction is -- Felix Frankfurter: You are not there to contend or do you contend they mean the same thing? And if they mean the same thing, then why not use the same phrase? And if they don't mean the same thing, what is the difference? Donald B. Macguines: They -- legally, they mean the same thing as I hope to develop at length in the argument. The honorable discharge is an accolade, if I may say so, a highest type of letter of recommendation. The general discharge, while it says the man has served under honorable conditions, does not get in that extra accolade and that's the only non-legal distinction between the two. Hugo L. Black: I'll have -- how old is the second type (Voice Overlap) -- Donald B. Macguines: The -- the general discharge under honorable conditions as such was introduced into the army regulations in 1921. The history of that is set forth in a footnote in our brief. It's in -- Hugo L. Black: How -- how old is the other? Donald B. Macguines: The honorable discharge? Hugo L. Black: Yes. Donald B. Macguines: Well, I think that goes back to the beginning of our military organization. Earl Warren: What percentages of -- of discharge servicemen get the accolade? Donald B. Macguines: Well, we had in a footnote in our brief a compilation of the number of discharges given over the last several years by the Army and the Air Force. Discharges other than the honorable discharge. And as the court can see that runs up to from 20, 25, 30, up to 40,000 per year. Hugo L. Black: What page is that in your -- Donald B. Macguines: That's page 38 of our main brief, Your Honor. The table there -- for instance, the -- the highest number shown is for the year 1954 when some 39,000 were given. Hugo L. Black: And is this general discharge rated in the classification number awarded less than the honorable discharge? Donald B. Macguines: Yes, now of course, it must be understood that that doesn't mean that it's not a discharge under honorable condition as we've -- Hugo L. Black: I understand that. Donald B. Macguines: We merely have to -- Hugo L. Black: It's properly classified there as being a discharge lest anomalous. Donald B. Macguines: Well, I think it might have been more artistic if it had said, number awarded a discharge other than the honorable discharge. Felix Frankfurter: Now, who -- who put this classification? Donald B. Macguines: Well, that's the -- I think we did. Hugo L. Black: Is that in the army reports when they -- Donald B. Macguines: I'm sorry. Hugo L. Black: Is that in the army reports? Donald B. Macguines: No, no. This is a -- this is purely a tabulation which we prepared from army statistics and air force statistics prepared by us. Hugo L. Black: Then, you think probably you are wrong in saying that is less than an honorable discharge? Donald B. Macguines: I think it might have been phrased more artistically to say other than an honorable discharge. Earl Warren: Some place in the -- in the briefs, I -- I thought I saw that 95% of all servicemen received the accolade, is that -- is that correct? Donald B. Macguines: Well, the -- the figures are given in this table on page 38. Earl Warren: Well, but they -- but they don't say in percentages. Donald B. Macguines: No. Earl Warren: Is it -- is that approximately true that 95% of the -- Donald B. Macguines: That's a rough approximation. I would think that is true. Earl Warren: Yes. And what approximation will get a dishonorable discharge or a bad discharge of any kind, do you know? Donald B. Macguines: I am sorry. Neither the record nor the briefs contain that information. Earl Warren: Must be a sizable number, isn't it? Donald B. Macguines: Well, the Court knows that there is substantial number of court-martials every year. What that number amounts to, I'm just not in a position to say. Earl Warren: Yes. Well, the point -- point is simply this that in my mind, that if 95% get an honorable discharge, what you call the accolade, and a large number of them get dishonorable discharges and -- and discharges below even the one that this man got, the number of this kind of discharges is apparently very small, is very, very small. Donald B. Macguines: Well, in terms of the overall total of discharges, it certainly is. Earl Warren: Yes, all right. Now -- now why -- why would that small number of men be -- be denied the honorable discharge? I just want to know -- Donald B. Macguines: Yes. Earl Warren: -- what -- what caused it and why you do it and what the necessity for -- for the two different kinds are if you want the public to believe that this general discharge is the equivalent of an honorable discharge? Donald B. Macguines: Will You Honor permit me to lead up that to that answer? Earl Warren: Yes, yes, in your own way. Donald B. Macguines: Yes, thank you. As we read 175 years of legislative practice in this country running back to before the revolution, Congress has never intended to vest in the civil courts discretion to decide what types of discharges shall be prescribed by the armed forces, that is to say what categories of discharges, nor has it attempted to vest the courts with jurisdiction to decide what established form of certificates shall be given to a particular soldier under any particular circumstances. The British Articles of War at the time of the revolution required that a soldier be given a discharge.They did not specify honorable or dishonorable or other types of discharge. That has been carried forward through the continental Congress in the Articles of War and after the Constitution was adopted through the early Congresses in the Articles of War and it has been carried forward to date. Specifically, the statute which is applicable to petitioner's discharge is an Act of 1920 which provides that no -- Speaker: Where is that? Donald B. Macguines: That may be found at the back of our main brief, Your Honor, at page 78, paragraph number two. Speaker: This is the basic statute of this. Donald B. Macguines: This is the basic statute under which the discharge was given to petitioner. And the Court -- Hugo L. Black: Is this -- is this the only one to which we need look -- Donald B. Macguines: No, I will -- Hugo L. Black: -- for the authority for this particular discharge? Donald B. Macguines: I will in a moment refer to one other subsequent statute. But the Court will observe that under that statute, first, every enlisted man must, upon his discharge, be given a certificate of discharge. And secondly, that no enlisted man shall be discharged prior to expiration of his term except in the manner prescribed by the Secretary of the Department of the Army or by court-martial. Note again that Congress, even to this date, has never specified whether there shall be honorable discharges, general discharges, undesirable discharges or so forth, nor has it ever set forth the conditions under which the man receives one type of discharge rather than another. Hugo L. Black: Have there been regulations which have the effective law -- Donald B. Macguines: Yes. Hugo L. Black: Which you have that (Voice Overlap) -- Donald B. Macguines: And that is my point, that Congress has left in the military establishments, the full discretion to prescribe by regulation, what types discharge that shall be and under what circumstances a particular type shall be given to a particular soldier. William J. Brennan, Jr.: Now, was Harmon discharged before his term of service expired? Donald B. Macguines: Yes, Your Honor. So this statute has direct application to petitioner. Now, the only other statute which has direct application to petitioner is -- is the following paragraph on page 78 of our brief. The Universal Military Training and Service Act. And -- and when that Act was enacted, there was the Secretary of Defense, super imposed upon the three military establishments. So it provides that no soldier shall be discharged prior to expiration of his term of service except in accordance with procedures prescribed by the Secretary of Defense, which I take it means super imposes a general discretionary authority of the Secretary of Defense upon the Secretary of the Army. But Congress again had stayed completely away from the whole problem of what types of discharges there shall be and how -- and under what circumstances they shall be given. Now, in the Armed Forces Reserve Act of 1952 which is directly applicable to the next case to be argued, the Abramowitz case, there is a similar provision providing for discharge in accordance with regulations promulgated by the appropriate Secretary of the military establishment. Now, Mr. Justice Black asked about the regulations. And the types of discharges have been for generations prescribed by the heads of the military departments. At the present time and at the time applicable in this case, there were five types of discharges given by the army. The first, the appellate as I put it is the so called honorable discharge. The second, the one which petitioner received is the general discharge under honorable conditions. Speaker: Are the regulations covering these different categories of discharges printed in your brief? Donald B. Macguines: Yes -- yes, Your Honor. They are described in general terms in page -- at page 32 of our brief, with a general indication of the different circumstances under which each type of discharge becomes appropriate. Speaker: Thank you. Earl Warren: Well, do you -- do you quote the -- the regulation under which the general discharge is issued? Donald B. Macguines: No, we do not set that forth in text Your Honor. Earl Warren: Why not? Isn't it -- isn't it a very important thing in this case? Donald B. Macguines: Yes, I think it might have been well to do that, I regrettably -- Felix Frankfurter: You can still do it. Donald B. Macguines: But we -- I will be happy to supply the Court with -- with verbatim printed copies of the regulation itself if that would be -- Earl Warren: Well, can you read it to us now? Donald B. Macguines: Yes, Your Honor. Earl Warren: That to me it's very important to know if you've got a regulation for -- for an honorable discharge and another regulation for a general discharge and you're claiming that he's only entitled to a general discharge, and the other side is claiming he is entitled to an honorable discharge, seems to me elementary that should -- it had both those regulations in this -- in this record some place where we could -- where we could read them. Donald B. Macguines: Yes. They -- they are set forth by petitioner in his brief in part at page 52 of the petitioner's brief. Now, if -- if the Court wishes to turn to paragraph eight, near the bottom of page 52. Hugo L. Black: Is that the controlling one here? Donald B. Macguines: Well, not that sole paragraph. It is an applicable one but there are others that have bearing on the question. But counsel for petitioner has pointed out that under paragraph eight of that regulation, a soldier gets the honorable discharge if his character and efficiency ratings have been very good and excellent, and he has not been convicted by court-martial, except as otherwise provided in the regulations. Now, of course here, there is an except as otherwise provided because the reference there to paragraph 13, except as provided in these regulations and pertinent regulations listed in paragraph 13, paragraph 13 is regrettably not printed by either side, but I have it here. Earl Warren: Well, why is it -- Speaker: (Inaudible) Earl Warren: Why isn't it printed, Mr. -- it seems to me that that's a very vital elementary in this case. Why shouldn't we have it? Donald B. Macguines: Well, I -- I -- of course, I agree the Court should have it and I suggest that perhaps the most convenient form would be for us to submit the -- the official printed form of the regulation itself. Felix Frankfurter: Would you agree -- would you agree that if in fact without any controversy about the underlying fact establishment, if in fact a claim is made that a discharged soldier comes within a particular regulation and he has been denied what the face of the regulation entitled him to that he could enforce that regulation even in a court of law. Donald B. Macguines: No, I do not agree with that, and that leads me -- Felix Frankfurter: I hope you get my question. Donald B. Macguines: I -- I hope I do too, and I think I do. Felix Frankfurter: My question is, if in contesting, a person comes within a regulation promulgated by the army, they say any person is valid by the one, two, three condition, comes within this regulation rather than that, you can enforce that regulation provided there is no controversy as to where they comes within that regulation. Donald B. Macguines: And Your Honor means enforce it in the civil courts? Felix Frankfurter: The regulation says that he is entitled to this kind of a discharge. Donald B. Macguines: Yes. Felix Frankfurter: He says I am -- I come within those terms and the War Department comes in and says, "Yes, he comes within those terms, but we have chosen not to enforce that regulation." You say even then there is no resort to the civil authority? Donald B. Macguines: I do for the reason. Felix Frankfurter: Well, I just want to know. Donald B. Macguines: For the reason that Congress has provided an alternative system of justice to take care of that in similar situations. Felix Frankfurter: How could he enforce that regulation? Donald B. Macguines: He enforced it first by applying to the Army Discharge Review Board. Felix Frankfurter: I know the -- he goes through the whole thing and the Secretary for the Army, let me suppose, an unfair situation. Everybody along the line disregard, says, "Yes, he comes within this regulation but we are not going to give him the benefit of it." Donald B. Macguines: Well -- Felix Frankfurter: He then enforces it in the court of law -- Donald B. Macguines: We say no. Felix Frankfurter: No, all right. Donald B. Macguines: We say no. We say that Congress with finality said, "If this situation arises, we will give the solider a remedy within the service department and that's the end of it." Felix Frankfurter: I am suggesting he exhausted all of them. Donald B. Macguines: I understand but I am saying that what Congress said was that's the end of it. Felix Frankfurter: All right. Hugo L. Black: May I ask just one more question to be sure in the influence. Suppose of what you say -- suppose the army had said yes, we discharged him -- we discharged him because we didn't like his religion, to give him a discharge less than honorable, could he go to court? Donald B. Macguines: Even in that extreme, in fact almost unimaginable case, we would say that he could not because Congress does not intend that there shall be a legal right in the justiciable sense to a particular type of discharge. William J. Brennan, Jr.: However arbitrary the action of the army may be? Donald B. Macguines: However, precisely because -- William J. Brennan, Jr.: No matter how extreme we may suppose a case of arbitrary and capricious action. Donald B. Macguines: Exactly. William J. Brennan, Jr.: He has no remedy in the court of law. Donald B. Macguines: Exactly. In our view, Congress has -- William J. Brennan, Jr.: Are you going to establish that? Donald B. Macguines: I -- I certainly hope so. William J. Brennan, Jr.: I'd be very delightful from hearing it. Felix Frankfurter: Is that what this case is about? Donald B. Macguines: Well, that is an element. Certainly, that is an important element in this case. Now, the statute which set up the Army Discharge Review Boards provided that the discharge given should be final subject only to review by the Secretary. That is one instance of a congressional statement of finality. And further more in 19 -- Earl Warren: Is that – Is that always a statement of that kind always preclude judicial review? Donald B. Macguines: No. Every finality clause should be read in the light of its history. And we say here that this finality clause is to be read in that light for the historical reason that traditionally from the beginning of our Government Congress has left it wholly up to the service departments as to what discharge soldier John Jones gets. Felix Frankfurter: I suggest that there is no case to correct you, but I suggest there is no case which worries you or calls upon you to take the position as they did. No case in which the extreme limits of military authority and non-interference by the civil authority has been recognized that warrants the statement that you made because no situation has been -- Donald B. Macguines: Well -- Felix Frankfurter: -- presented to the Court. Donald B. Macguines: I quite agree that that the -- Felix Frankfurter: And why do you argue such an extreme position of what you don't have -- Donald B. Macguines: Well, I was answering Your Honor's contention. The suggestion -- Felix Frankfurter: Well, but there are various ways of answering Donald B. Macguines: -- that if that occurred -- Felix Frankfurter: One way of answering is that I am not qualified to take a position for the Government in the situation that it support. That's one way of answering. Donald B. Macguines: What Your Honor is now suggesting if I understand you is that probably no secretary of war has been so wholly arbitrary -- Felix Frankfurter: That isn't what I am suggesting at all, I am suggesting that a lawyer with the responsibility of the seriousness that confronts the Government in this case need not take the extreme position that the record doesn't call for. That's what I am suggesting. Donald B. Macguines: Well -- Hugo L. Black: That's the main basis of the argument in your brief, isn't it? Donald B. Macguines: The main -- our -- our first contention is that Congress has left to the military establishments the only course of redress for situations which may arise and has provided to administrative tribunals within each military establishment for that expressed purpose. Well, if it -- Hugo L. Black: What case -- what case of ours do you rely on both instance? Donald B. Macguines: Well, this that -- that precise case has not been decided by this Court. In Patterson versus Lamb, this court expressly said it was not passing. Your Honors' opinion by the way said you are not passing on the question as to whether the civil court had any jurisdiction to review the military discharge given. William J. Brennan, Jr.: Well if Congress has done that, I suppose you would agree that there might be a constitutional question whether in the case of an arbitrary action such as I put to you, there was a denial at least to due process. Donald B. Macguines: I do not think so, Your Honor. And -- Felix Frankfurter: And you are going to argue that too? Donald B. Macguines: If, if Your Honor [Laughs] -- Felix Frankfurter: Argue that constitutional question? Whether -- whether Congress has power to leave all military matters to the military authorities, you are going to argue that question in this case too? What else aren't you going to argue? Donald B. Macguines: I will argue any question which a Justice ask me to argue. Felix Frankfurter: Well, that is my notion of your responsibility if I may say so. Donald B. Macguines: But of course in the cases which have come before this Curt and the lower courts, in large part, they have been habeas corpus reviews of court-martial proceedings. And the test there which the Court has laid down is that if it is conceded that the man is in the military establishment and if it is conceded that the court-martial which tried him was constituted in accordance with law and it had jurisdiction to pass on the offense with which he was charged, that's the end of it. That for considerations of army discipline, the fact that the military establishment is an entirely separate community, as this Court has put it, from the civil community, that -- and for separation of powers consideration that the courts do not at all take the same type of review of military action as they do of course of governmental action which affects civilian rights. And piecing together all of those things, the consistent course of congressional action, the extremely limited review which this Court has given even in the habeas corpus case where a statute expressly confers upon this Court -- pardon me, and on the District Courts, jurisdiction in habeas corpus. Taking all of those things together, we consider that Congress did not intend to make the matter of a man's discharge the kind of a legal right which was proper subject matter for the civil courts to pass on. Now, Congress has recognized the distinction between the various types of discharges in this sense. The so-called punitive discharges, the bad conduct and the dishonorable discharges may, under the Uniform Code of Military Justice, only be given by sentence of court-martial. In other words, that is a form of punishment imposed upon the soldier where he has been found guilty of a violation of offenses formerly prescribed by the Articles of War and now carried forward into the Uniform Code of Military Justice. But on the other hand, the so-called administrative types of discharge, the honorable discharge, the general discharge under honorable conditions and the undesirable discharge, those are not given for the commission of offenses in the same sense at all. They are not given because the man has been found guilty by a court-martial offense, they are given because the army has decided that from the standpoint of the efficient operation of the army, it's better off not to have Private John Jones in the Army. Now, the general discharge under honorable conditions which is given here is given for many things which have nothing whatever to do with security considerations. It's specifically given, for instance, if the soldier lacks physical stamina. It's given if he is psychologically ill-equipped for combat conditions, and many other thing, it is merely a determination of the Army, that although the man has served under honorable conditions for one reason or another and may be wholly beyond his fault or anything that he can correct, the Army is just better off not to have that man in the service. Earl Warren: Is that true even though his character is rated as excellent and his performance is rated as excellent? Donald B. Macguines: Oh, yes. Earl Warren: All right. Donald B. Macguines: Yes. Earl Warren: Now, tell me please how you justify that under this regulation eight as it appears on page 52 and regulation nine as it appears on page 53 of the brief for petitioner which you just -- Donald B. Macguines: Well -- Earl Warren: -- which you just -- Donald B. Macguines: I -- I justify it because paragraph eight of that regulation starts out by saying except as prescribed by the regulations with specific reference to paragraph 13. Speaker: Where do we get that one, I have been looking for it and can't find it. Donald B. Macguines: Which? Speaker: It's seems to me that's the bottom of your whole case. Donald B. Macguines: Paragraph 13. Speaker: Yes. Earl Warren: Yes. Speaker: Where is it? Donald B. Macguines: As I say, regrettably, neither side has printed that and that's what I have suggested that I will submit the complete regulation -- Hugo L. Black: You have it that way -- you have it that way, you could read it to us -- Donald B. Macguines: Yes, Your Honor. Hugo L. Black: -- unless, it's too long. Donald B. Macguines: Yes, Your Honor. Paragraph 13 is headed separation prior to expiration of period of service. When discharged or released from active military service is to be effected prior to expiration of enlistment, inductment or period for which ordered into active military service, it will be accomplished under whichever is appropriate of the following regulations, and then it gives the various numbered army regulations and the general subject a) homosexual, b) disability, c) disability existing prior to entry on active service, d) marriage and pregnancy and various other things including convenience of Government, misconduct, unfitness, inaptitude or unsuitability, disloyal or subversive. In other words -- William J. Brennan, Jr.: Which one does this fall under? Donald B. Macguines: Well, this -- this particular edition of this regulation was issued prior to the now current regulation dealing with security. But in the current edition of the regulation, that is listed under paragraph 13 which is the Army Regulation 604-10. And that is the regulation by which the Army has proscribed a security standard. William J. Brennan, Jr.: I don't follow this, Mr. MacGuineas. Is this 605-10 -- Donald B. Macguines: 60 -- William J. Brennan, Jr.: -- or whatever it is, a supplement or amendment to 13 or what? Donald B. Macguines: No, you see -- Hugo L. Black: Is that cited -- is that quoted in your brief? Donald B. Macguines: Yes, Your Honor. Speaker: That doesn't govern this case, does it? Donald B. Macguines: Yes, Your Honor. 604-10 is the regulation applicable which sets forth the grounds on which petitioner was dismissed to wit that the Secretary of the Army concluded that his retention in the service was not clearly consistent with the national security. William O. Douglas: Where is it (Inaudible) Donald B. Macguines: Well, if Your Honor will turn to the -- the record at page 33, you will find set forth Department of Defense Directive number 5210.9. That was the initial statement promulgated by the Secretary of Defense. Hugo L. Black: Well, is that 614? Donald B. Macguines: No, then 604-10 was later promulgated. Hugo L. Black: Where is it in the record or in your brief? If it's to knowing, why -- why this -- William O. Douglas: It's not in your brief. Donald B. Macguines: No, I'm sorry to say that it has not been set forth in the brief. Earl Warren: That is not in the record. Donald B. Macguines: It is not in the record. Earl Warren: Why isn't it in the brief? I ask you once more. Donald B. Macguines: Yes. Earl Warren: I asked about each of these because it -- it seems to me that it's so unusual that the Government would not print in its -- in its briefs a statute that it wants us to rely upon in a case of this -- case of this kind. Donald B. Macguines: The statutes are printed, Your Honor. You mean the regulations, yes. Earl Warren: The regulations, yes. We can get the statutes very easily but the regulations are a little more -- Donald B. Macguines: Well -- Earl Warren: -- difficult to get. Donald B. Macguines: I quite agree that the brief should have been more complete in that respect and I do not like -- Earl Warren: But it really is a brief without that -- Donald B. Macguines: I -- I -- Earl Warren: -- because it -- those are the things you rely upon with your offices. Donald B. Macguines: I do not like to disclaim any personal responsibility but perhaps the Court will permit me to call the attention to the fact that my name is not on the Government's brief. Speaker: Well -- Earl Warren: Well, I would think you take some comfort in that. [Laughter] Hugo L. Black: Did the Court of Appeal both the -- Donald B. Macguines: I beg your pardon? Hugo L. Black: Did the Court of Appeals invoke that withholding regulations? Donald B. Macguines: If Your Honor has the briefs in the next case, number 141. Hugo L. Black: Well, I'm just asking that the Court of Appeals had decided this case, referred to that regulation, what you say is controlling. Donald B. Macguines: No, the Court of Appeals referred to Department of Defense Directive 5210-9. Now, the explanation for that as I understand it, and this is a point on which petitioner has never brought forward. The -- the Department of Defense Directive 5210.9 was promulgated in April of 1954. That same month, petitioner was given his first discharge, the then undesirable discharge. Up to that time, the army had not promulgated its implementation of the Department of Defense Directive. That implementation is Army Regulation 604-10. Hugo L. Black: You mean what -- Donald B. Macguines: It is -- Hugo L. Black: What -- what you say is controlling, had not been promulgated by the Army at the time the man was discharged? Donald B. Macguines: We -- we take the -- we take the position that the Department of Defense Directive in itself was sufficiently self executing so to speak, that it would justify action by the Army even in advance of the promulgation of its formal security regulation. William J. Brennan, Jr.: Well then, that's what I asked you before. Is it that you're suggesting that the 604-10, I gather now that this -- whatever the other one was, I'm so confused about all this now. But my understanding is that as to the Department of Defense, security regulation is appropriate, upon which you justify the action taken as to Harmon. Donald B. Macguines: Yes, that -- that was directive -- William J. Brennan, Jr.: Now, is that done by reason of an argument that, that somehow amends the regulation 9 as to general discharges or the regulation of 8 as to honorable discharges? Donald B. Macguines: Well, that defense directive represented the promulgation of a new policy with respect to discharges, to wit a specific basis for discharging a man because his retention in the service was not deemed to be clearly consistent with the national interest. William J. Brennan, Jr.: Well now, that argue then that completely independent of the regulations 8 and 9, governing honorable and general discharges. Donald B. Macguines: Well, this -- William J. Brennan, Jr.: This policy of itself justifies what was done without reference to those regulations? Donald B. Macguines: This regulation or this directive, I beg your pardon, states that the type of discharge given under this directive shall be in accordance with the character of the derogatory information against the man. In other words, it -- the type of discharge might vary depending upon the judgment of the Secretary of the Army as to how serious the case against him was. Felix Frankfurter: Mr. MacGuineas, at the risk of repetition, would you be good enough to state categorically what materials statutory regulatory directive were in existence at the time that this discharge was issued? Thus, give me the -- Donald B. Macguines: Well, now -- Felix Frankfurter: -- reference. If you're not -- didn't you say you haven't prepared this brief, you must have been -- you're not speaking to the brief when you're speaking to your own preparation. Now, what materials underlay what relevant controlling materials or authorizing materials were in existence when this discharge was issued? Donald B. Macguines: I'll be glad to do that, Your Honor, but may I point out that there were two discharges issued in this case. Felix Frankfurter: I don't care what -- all right I mean the one that's before us because I take it the other one is displaced. Donald B. Macguines: Good, then at the time -- it -- when the Court is considering the last discharge as being the only one in effect, that is the -- Felix Frankfurter: I don't know what others may think, but for me that's the question before the Court. Donald B. Macguines: I -- I agree. Earl Warren: Well, I'm interested in the first one too so I suggest that you tell us what was in existence when the first one came up and then what was in existence -- Felix Frankfurter: The tempering. (Inaudible) you're talking about. Earl Warren: Yes, yes. Felix Frankfurter: But at this confusion when we haven't got the documents. Donald B. Macguines: I shall proceed chronologically. At the time that petitioner was given his first discharge which was an undesirable discharge, the applicable statute was the Act of 1920 quoted in our brief. The administrative regulation applicable and the only one applicable at that time was Department of Defense Directive 5210.9. But when the Army later conducted a general review -- Speaker: Pardon me, that's the one that's printed in page 52 of the petitioner's brief, is that right? Donald B. Macguines: The -- the directive is in the Speaker: (Inaudible) Donald B. Macguines: That's in the record itself. Earl Warren: Page 33 of the record. Donald B. Macguines: Page -- beginning at page 33 of the record. And that is the only administrative regulation which was in effect at the time of the first discharge. But subsequently after this lawsuit was in process, the army undertook a general review of all cases going back several years, of all cases of soldiers who had been dismissed under the so-called security program. Earl Warren: Well now, had he -- had this man been dismissed at that time? Donald B. Macguines: Yes, he was dismissed and then -- Earl Warren: Well, you -- you said you were going to take it chronologically and -- and there were only -- only these two, eight and nine of the regulations plus this directive at the time he was discharged. The time he got the -- Donald B. Macguines: No. Yes. Earl Warren: -- undesirable discharge. Donald B. Macguines: At the time he got the undesirable discharge, the only -- the only regulation in effect was the Department of Defense Directive 5210.9 in the record at page 33. Earl Warren: Yes. Donald B. Macguines: At that time the Army had not yet promulgated its implementing regulation. Earl Warren: Yes. Donald B. Macguines: Now -- now -- Felix Frankfurter: Were -- were there no regulations enforced at the time defining categories of discharges at that time? Donald B. Macguines: Oh, yes, surely. Felix Frankfurter: Well aren't they relevant? You said a minute ago -- a few minutes ago -- Donald B. Macguines: Well -- Felix Frankfurter: -- this goes back to the beginning of things where the beginning of things gave authority for promulgating regulations, so the regulatory system becomes relevant throughout our history. Donald B. Macguines: Well, the regulation in effect at that time which set forth the conditions under which different types of discharges would be given was the one to which I previously referred Army Regulations 615-360. And that is the one that I said provided for a discharge for a lack of physical stamina, psychological unsuitability and -- and many other things. Hugo L. Black: Were there any event that provided for discharges for conduct which would reflect discredit on that soldier -- Donald B. Macguines: Yes. Hugo L. Black: -- over this court martial? Donald B. Macguines: I -- I beg your pardon, what did you say about court-martial? Hugo L. Black: Were there any of those grounds in that statute, in that regulation, to authorize discharges of the kind that would reflect discredit on the character of the solider otherwise, other than those which provided the court-martial? Donald B. Macguines: Yes, a homosexuality is an example. Hugo L. Black: Was -- was it provided that he should have a trial of any kind, to be convicted of -- Donald B. Macguines: No that's the whole point. These administrative discharges are not given as a consequence of a conviction of any offense prescribed by the Articles of War. They merely represent the judgment of the Secretary of the Army that we feel were better off not to have John Jones in the army -- Hugo L. Black: I understand that, but because the question, he is a homosexual there, what proof? Whose judgment was obtained on that besides the Secretary of the Army? What did the man have to do with it? Was he given a trial of any kind before that was put on his record? Donald B. Macguines: No, no, not -- not in the trial in the sense that Your Honor is speaking of it, he was not. Hugo L. Black: I'm talking about any kind of -- Donald B. Macguines: No. Hugo L. Black: -- any kind of the hearing such as a man would want who was charged with a very serious thing of that kind. You mean that the army, Secretary of the Army could just say we don't want him, he is a homosexual without proof, without anything else, with no review of him. Donald B. Macguines: Well, the review since 1954 has been provided both before the Army Discharge Review Board, where the man does have a full opportunity for a hearing and also if he's turned down there, he goes to the Board for Correction of Military Records, where he also has the second opportunity for a full hearing. Hugo L. Black: That's since 1954. Donald B. Macguines: Since 1944. Hugo L. Black: 1944? Donald B. Macguines: 1944. Speaker: (Inaudible) Donald B. Macguines: 1944. The Army Discharge Review Board was established by statute passed in 1944. Felix Frankfurter: Mr. MacGuineas, I should think it would help the Court if you told it the history of this discharge without honor which has an important history, well-known in the history of this country, namely the discharge of a whole regiment by the Commander in Chief, President Theodore Roosevelt in the case -- in the Brownsville soldier's case. Why do you argue this case, all of the abstract, as though that is a sudden new thing without a large practical history behind it and a judicial history? Donald B. Macguines: Well, I -- I thought I indicated that the particular form of honorable discharge under general conditions goes back to 1921, I believe it is, and it is true that prior to that time, there were other forms of discharge given by the military service which was not the honorable discharge and yet was not a dishonorable discharge, an intermediate form of discharge.That sort of thing goes back at least to the Civil War and the -- the precise characterization of the discharge has changed in accordance with change in regulations from time to time. Now, if I may -- Felix Frankfurter: And with -- with the Chief Justice's permission, may I suggest that when you submit that in print, the materials that are relevant for the understanding of this case in determination of it, you indicate what materials meaning by that statute regulation directive were in existence at the time of the first piece of paper, the undesirable discharge and what were in existence at the time of the second discharge. So we keep these things apart and know what was before the authorizing authority, if they had authority, at the time that they acted as they did. Donald B. Macguines: Well, with the Court's permission, we will submit a brief supplemental memorandum stating those facts and attaching as exhibits printed copies of all the regulations which are not set forth either in the record or in the briefs. Hugo L. Black: Do you agree that the type of discharge the army was entitled to give this man at the time he was discharged is governed and has to be governed by the law as it existed at the time he was discharged? Donald B. Macguines: Well, yes. Charles E. Whittaker: Mr. -- Mr. MacGuineas, now let me see if I follow you. You said I think that there were two discharges of Mr. Harmon. Well now, the first was a mere transfer to another department, was it not? Donald B. Macguines: No, pardon -- Charles E. Whittaker: And he was -- was he not first given the undesirable discharge? Donald B. Macguines: Pardon me, Your Honor. He was first given an undesirable discharge but that was not the question of the transfer, that is the situation which occurs in the next case, in the Abramowitz case. Charles E. Whittaker: All right. This -- this man got first an undesirable discharge, then while the case was pending in the Court of Appeals, the discharge was administratively changed to less than honorable condition or to do -- Donald B. Macguines: General. Charles E. Whittaker: An Honorable condition. Donald B. Macguines: Under honorable condition. Charles E. Whittaker: All right now, do you not then say that the first discharge was under army Directive Number 5210.9, which was before the formation of the formal regulations on April 10, 1954 which became Regulation 604.10? Donald B. Macguines: Exactly. Charles E. Whittaker: And that the Court of Appeals dealt with only the directive which was 5210.9 Donald B. Macguines: That's correct. Charles E. Whittaker: Yes. Now, and then at the time of the discharge, the first one under which the undesirable discharge was given, the long fact was the Act of 1920 and the directive number 5210.9. At the time of the second discharge which was the one under honorable conditions, the army had formulated its formal regulations and they were 604.10, is that what you're telling us? Donald B. Macguines: That is correct, Your Honor. Hugo L. Black: Well, do you claim that -- do you argue, this man was discharged undesirable, this (Inaudible) separate from the Amy referred, whatever period of time it was, could be subjective, the kind of discharge that was not authorized in the statue. It was only authorized in the later regulation, or do you say -- do you agree that the army, whenever it formalizes discharge, had to be governed by the law that was in existence at the time it actually put him out of the army. Donald B. Macguines: I agree to that but of course, whatever the army did in connection with the first discharge, whether it be right or wrong is now out of the case, because the first discharge has been wiped out and he now has the general discharge. Hugo L. Black: I understand that, but -- but in the general discharge, the second discharge, determining whether the statute authorized that kind of discharge. We have to be governed, do we not, by the law that was in effect when they put him out of the army, not by the law as it was changed thereafter. Donald B. Macguines: Well, what I -- my -- of course, my basic point is that that is not a matter of which the District Courts that -- Hugo L. Black: But if -- if we have done -- the Army had -- Donald B. Macguines: Yes. Hugo L. Black: --to be governed, -- Donald B. Macguines: Yes. Charles E. Whittaker: -- did it not -- Donald B. Macguines: Yes. Charles E. Whittaker: -- by the law as it existed and the regulations as they existed when they separated from the service, not when they gave him the second discharge. Donald B. Macguines: Yes, except that that fact is immaterial in this case because they did give him a second discharge. Earl Warren: Well, Mr. -- Mr. MacGuineas, I -- I -- under those circumstances, I can't get away from -- from number 8, regulation 8 of 52 of petitioner's brief and regulation 9 on the next page. Now, 8 says that except as provided in these regulations and pertinent regulations listed in paragraph three, an honorable discharge certificate will be furnished when the individual meets the following qualifications. One, as character ratings of at least very good. Has efficiency ratings of at least excellent. Three, has not been convicted by a general court martial, and four, has not been convicted more than once by a special court martial. Now, number 9 says, general discharge, individuals discharged under honorable conditions which do not qualify them for an honorable discharge will be furnished a general discharge except as provided below and then below they make exceptions where they can even give them a general -- an honorable discharge under those circumstances. Now, I want you if you will please, to read me the language of any statute which govern his case at the time he was released from service in the Army. You say it isn't relevant, the kind of discharge he got when he was separated from the service, but I want to know what conditions -- under what conditions he was discharged and I want to know the statutory or regulatory power that you rely on to vary these two regulations. Now, read it to me please -- Donald B. Macguines: Yes, Your Honor. Earl Warren: -- so I don't -- Donald B. Macguines: I read from -- Earl Warren: -- have it in my mind. Donald B. Macguines: I read from our brief at page 23, a quotation from the Act. Earl Warren: 23. Donald B. Macguines: A quotation from the Act of June 4, 1920 which was the statute in effect at the time and was applicable to petitioner's situation. At the very bottom of the page 23, beginning -- Earl Warren: Yes. Donald B. Macguines: -- "No enlisted person lawfully inducted into the military service of United States shall be discharged from said service without a certificate of discharge and no enlisted person shall be discharged from said service before his term of service has expired, except in the manner prescribed by the Secretary of the Department of the Army or by sentence or court martial." Earl Warren: All right. Now, what -- what does that statute refer to other than regulation 8 under for honorable discharges and regulation nine regulating general discharges, what -- what in the regulations vary from those two sections? Donald B. Macguines: At the time the petition was given his first discharge -- Earl Warren: Right. Donald B. Macguines: -- which Your Honor is referring to. Earl Warren: When he was separated from the service. Donald B. Macguines: The -- the very interest, and I may use Your Honor's word, was Department of Defense Directive 5210.9. Earl Warren: All right. Now, what did -- what did that -- what language do you rely on as varying this number nine, so as to warrant the Department of the Army giving him a general instead of an honorable discharge. Donald B. Macguines: Well -- Earl Warren: I want to hear the language. Donald B. Macguines: The language would be the very opening of the paragraph eight except as provided in these regulations. Earl Warren: All right. Now, where in the -- what in the regulations do you rely on, please read me that. Donald B. Macguines: Well, at that time, the time of his first discharge, and the only regulation was the Department of Defense directives which we have referred -- Earl Warren: Yes. Donald B. Macguines: -- which prescribed a security risk program for the armed services. Hugo L. Black: Now, where did you say they could what they did here in that regulation? Which part of that in that directive? Donald B. Macguines: In the directive? Hugo L. Black: (Voice Overlap) which part of that directive you rely on? Donald B. Macguines: If Your Honor will turn to the directive which is in the record at page 33, begins on 33. And the -- if you turn on to page 34, and you notice the purpose is to apply to military personnel the criteria for security programs established as national policy for civilian personnel by Executive Order 10450. Hugo L. Black: Where does it say anything about discharge? Donald B. Macguines: Yes. Hugo L. Black: In the discharging here. Donald B. Macguines: That is on -- further over. Hugo L. Black: Page 43? Donald B. Macguines: On page -- page 43, paragraph five. If I may skip to the end of that paragraph, "He shall be separated and the character of the separation shall be predicated upon the gravity of the reasonably substantiated information in derogation." Hugo L. Black: Well, what does that say about discharge? Donald B. Macguines: Well, character of the separation means -- Hugo L. Black: On page 43? Donald B. Macguines: Yes, Your Honor, paragraph five in the middle of the page. Means that he shall be -- Hugo L. Black: Well, does it say anything about his discharge? Donald B. Macguines: Well, the character of -- Hugo L. Black: (Voice Overlap) what kind of discharge a man -- does it authorize in any way departure from the traditional discharge with the Army since the first day it started to function, for non-honorable discharge for a man who's -- who's honorably served in the Army? Donald B. Macguines: Well -- Hugo L. Black: Does that show any -- any departure, right of department? Donald B. Macguines: I -- I am not able to accept Your Honor's generalization that even prior thereto, every man who served honorably in the army got an honorable discharge. A man can serve honorably in the Army and yet he didn't have the physical stamina -- Hugo L. Black: Why certainly but -- Donald B. Macguines: -- to be of service. Hugo L. Black: -- that wouldn't reflect -- Donald B. Macguines: -- yet he didn't get an honorable -- Hugo L. Black: That wouldn't reflect on his honor, the fact that he was weak, he got sick. I'm talking about the honorable discharge. Donald B. Macguines: That's my point. Such a man -- Hugo L. Black: It is imposed to be the most sacred thing a man from the Army gets. Donald B. Macguines: And that's my point, such a man. Purely because of his -- his physical weakness does not get the honorable discharge. That's just my point. Earl Warren: But here's a man who had no physical weakness, it's an issue in this case, but he did have an excellent character and had an excellent performance record according to the records of the Army. Now, what is it that shows --- Donald B. Macguines: Well -- Earl Warren: -- that you can give a man of that kind less than an honorable discharge which you give to 95% of all the men who go through the armed forces of this government. Donald B. Macguines: Your Honor, that -- that statement which is what petitioner's counsel made is not an accurate statement of petitioner's army record. What he had was findings of excellence for fitness and character up until the time that the army started the proceedings which led to his discharge. But for the period of the last few months of his military service, he did not have such a rating. Earl Warren: Well, they -- they cut him off just like they cut him off from an honorable discharge apparently. Donald B. Macguines: Yes, but I -- I thought Your Honor was -- I merely wanted to correct the record in that respect. Earl Warren: How long was he -- how long did they say that his conduct was unknown? Donald B. Macguines: Approximately 18 -- oh, his conduct was unknown? Earl Warren: Well isn't that what you determine he -- Donald B. Macguines: Yes, that's the last six weeks or so of his service -- Earl Warren: All right. Donald B. Macguines: -- just prior to his dismissal -- Earl Warren: Well, I -- Donald B. Macguines: -- when these proceedings were undertaken. Earl Warren: I -- I read here in -- in Subdivision B of number 8, "Ratings of unknown and ratings for periods of less than two months are not disqualifying." Now, if this was only for six weeks, why didn't he come under that? Donald B. Macguines: Well, that's true within the terms if the man comes under paragraph eight. But of course if he comes under the exception set forth in paragraph eight, then that provision has no application. That talks about the circumstances under which you will get an honorable discharge if you are under paragraph eight. Earl Warren: Well, they -- they're all under paragraph eight or under nine -- Donald B. Macguines: Except as -- except -- Earl Warren: Except as it may be modified. Donald B. Macguines: -- as otherwise prescribed. Earl Warren: Yes Donald B. Macguines: And that's the point. Earl Warren: But is there anything in 13 that would indicate that ratings of unknown are not disqualifying? What in 13 -- Donald B. Macguines: 13 doesn't -- Earl Warren: What -- what in 13 would indicate that there is any -- any retreat from that statement that ratings of unknown and ratings for periods of less than two months are not disqualifying? Donald B. Macguines: Because 13 provides other grounds for discharge and as to which as I understand it, the -- the Army man's formal rating is immaterial. In other words, a man might have been rated by his commanding officer as excellent and yet the army discovers that he is a homosexual. He nonetheless maybe discharged under their exception regulation without being given an honorable discharge. Earl Warren: And that was then in existence at the time this man was given an undesirable discharge. Donald B. Macguines: The only thing in existence was 5210.9. Earl Warren: Yes. Donald B. Macguines: I -- I regret that my time has expired. I shall not have the chance to discuss our alternative point that even under the particular circumstances of this case, there is no justiciable controversy and that there is no legal injury resulting from the issuance of the general discharge to the petitioner, but that is discussed in our brief. Earl Warren: All right, sir.

Warren E. Burger: We will hear arguments first this morning in Santosky against Kramer. Mr. Guggenheim, you may proceed when you are ready. Martin Guggenheim: Thank you. Mr. Chief Justice, and may it please the Court, the issue in this case is whether the state may permanently destroy a family when it is not clear that the evidence justifies doing so. It is the Petitioners' position that the Constitution requires that the finder of fact be reasonably convinced that the result of permanent destruction of the family is appropriate before the state may force such an irrevocable and fundamental deprivation of liberty on an individual. New York and eleven other states permit the permanent destruction of a family based on quality of evidence which is sufficient to prove liability in an automobile accident. This is offensive to basic notions of due process. Speaker: Well, Mr. Guggenheim, I realize that your point is certainly legally well taken, but do you think your client would have been better served by the rather searching family court inquiries in this case; albeit they were said to be made upon the preponderance of the evidence rather than a very short hearing in the family court which announced that it found by "clear and convincing evidence" that parental rights should be terminated and it was affirmed by the appellate division? Martin Guggenheim: Absolutely, not only in this case but in the 1,200 other cases litigated in New York each year on this subject. It would of a measurable and real value, a benefit to parents because, as Justice Harlan indicated in Winship, what the standard of proof does, what the setting of a constitutional standard of proof does is impress upon the finder of fact the degree of confidence in the judgment which is to be rendered. Now, if your question, Justice Rehnquist, is whether under any reading of this case a higher standard would have been met, the test for harmless error in constitutional adjudication is a reasonable doubt test set forth in Chapman against California. The question would be whether any reasonable person could have found that this did not amount to clear and convincing evidence. Speaker: No, my question was directed more to the practicality matter. The family court devoted considerable time, and wrote out its conclusions, and held more than one hearing on the matter, and the fact that it ended up concluding that it was by the preponderance of the evidence strikes me as being a rather technical point which could have been obviated by a much shorter and less searching inquiry than simply a boilerplate finding at the end that we find this by clear and convincing evidence. Martin Guggenheim: Courts have regularly reviewed records upon a higher standard of proof, appellate courts have, and in this case, the test before the appellate division was merely whether the evidence did justify the result by a preponderance of the evidence. There is both an impression to be made upon the finder of fact of the degree of confidence he or she should have in making the finding, as well as an entire change of the direction of the case, of the scope of the issue before an appellate court. The burden is more squarely placed upon the state, and the question for review is whether they have met that burden by convincing evidence. I do think that this is a practical and meaningful right being sought, both for the 1,200 cases each year and for this one. Speaker: From the size of the record in this case, is it not quite clear that the judge gave it very close attention, and made an exhaustive inquiry? Martin Guggenheim: Absolutely. There is no challenge being made to the process attendant to the proceedings or to the judge's own careful analysis of his opinion other than a steadfast refusal to both declare the statute unconstitutional insofar as it required a higher standard of proof and a refusal to rule that by that higher standard of proof this same result would have been effected. The trial court judge did not do that. The appellate court, the third department, appellate division, affirmed expressly finding that the evidence satisfied the preponderance standard, and expressly finding that a higher standard was not constitutionally mandated. Speaker: Mr. Guggenheim, if we were to agree with you about the standard, what should we do with this case? Send this record back and tell them, look at this record again and applying the correct standard, or to retry it? Martin Guggenheim: I think that the former alternative would not necessarily be impermissible. I am not certain of the answer. I think that at least remand-- Speaker: This is the trial record. Martin Guggenheim: --No, no, that is a very... a bulky set of exhibits annexed to this case, most of which we regard, frankly, as unnecessary for consideration. The record is-- Speaker: You don't suggest that the judge didn't consider them. Martin Guggenheim: --I do suggest that, indeed. Speaker: That he didn't consider them? Martin Guggenheim: He did not. Some of those are simply reports issued after the case was decided, long after the case was decided. These are just exhibits submitted to the court by the Respondent. They were not... Some of these are part of the record in earlier litigation, dating back to the time the children first entered the state's care, and some of the parts of Volumes 1 and 2 do contain... I don't mean to suggest that anything submitted to this Court respecting a transcript was not part of a record in an earlier case. I don't mean that at all. Speaker: Given the amount of time, the whole record of this case, if you are correct on your standard, would not the appropriate... would it not spare this family unit that you are concerned about, very properly, considerable trauma if they didn't have to go through the whole process again, if the judge would merely be directed to evaluate this evidence on the standard that you are suggesting if the court should happen to agree with that? Martin Guggenheim: Frankly, I find myself in a difficult position answering that question candidly, because there have been facts that have occurred after the trial that are not in this record, that I think speak favorably to the parents. I don't know how to bring it to the Court's attention without answering that a new trial, I think, would be possibly appropriate, but I do think frankly that question should be considered by the appellate division upon remand for reconsideration in light of this Court's opinion were it to strike this standard. Speaker: The appellate division, not the-- Martin Guggenheim: Or the trial court. Speaker: --court of first instance? Martin Guggenheim: Fine. Remand to the trial court. At that point, we would be in a position not circumscribed by Supreme Court rules to advise that court of change of circumstances which we would regard as favorable that may bear upon the court's decision, and indeed, that leads to a point-- 0.... Speaker: Wait until the matter is cleared up. Perhaps a lightbulb. 0.... The first surmise was correct. Counsel, you may continue. Martin Guggenheim: I am certainly glad it was correct. Speaker: We will not deduct that time from Mr. Guggenheim's allotted 30 minutes. Martin Guggenheim: As I was saying, among the points to be made here is that the decision to terminate is for speculative purposes. It is for purposes of hopefully leading to an adoption of a child. Whatever happens after the record is fixed is really for... is beyond the capacity of a parent or the court to reopen. Speaker: May I ask, Mr. Guggenheim, under New York law, suppose the state fails to get an order terminating parental rights. Martin Guggenheim: Yes. Speaker: May it come back later and seek such an order? Martin Guggenheim: Absolutely, and I think-- Speaker: Suppose... the state may, but suppose the parents lose, and parental rights are terminated. Have they any way of getting parental rights restored? Martin Guggenheim: --No, none whatsoever under New York law. There is in most American jurisdictions the right of a parent to reopen an adoption of a natural child based upon fraud or duress within a period of time after the adoption is fixed, but of course those standards would be inapplicable to these types of proceedings. Not only may the state relitigate when it loses, it did so in this very case, and it underscores one of the important advantages to the state on its side when it litigates against parents. In this case, it tried first to terminate permanently in 1976. The court found by a preponderance of the evidence they didn't have the ground sufficient under state law to terminate. The state then appealed to the appellate division, the same court from which we are now here on review, and that court affirmed, finding that the preponderance of the standard... of the evidence wasn't met, and found for the parents in 1978; in that same year, they filed this lawsuit seeking to terminate a second time. We are not suggesting that that is inappropriate. We are not suggesting that notions of res judicata are applicable, but merely to indicate one of the significant advantages the state has in this kind of proceeding. We are, of course, here dealing with rights far more precious than property rights, our most significant and fundamental rights of all, the rights to be with our children, the rights to visit with our children, the rights of our children to be with our parents and to know our parents. At the very least-- Speaker: Well, when was the last time your clients saw those three children? Martin Guggenheim: --Until they finally lost parental rights, they never missed a visit. They loved their children. They were diligent in meeting with their children whenever possible. They haven't now seen their children since the court permanently terminated their rights. Speaker: I suppose you must concede, Mr. Guggenheim, that New York does have some advantages in its system that other states do not have. Martin Guggenheim: I do make that concession. Speaker: I am speaking of the right to counsel, the right to a representative of the child. I forget what you call it. Martin Guggenheim: Yes, that's correct. Speaker: And yet this Court in Lassiter last year said that the right to counsel was not constitutionally mandated. Martin Guggenheim: Yes, but Lassiter flows from the Sixth Amendment right to counsel, and from an entirely different analytic framework. Lassiter is an opinion that follows logically from Scott against Illinois, in that in Scott this Court held-- Speaker: Well, there were some of us who thought it didn't follow. 0 [Generallaughter.] Martin Guggenheim: --Well, I respectfully suggest that. I am not sure I disagree with some of those views, but the point is that Scott held that the bright line is not even threat of imprisonment, as it might be in a jury case. It is actual imprisonment. So the presumption... I think that, Justice Blackmun, even those who dissented might agree with the phrase that counsel cases come to this Court with a presumption against application of counsel automatically except where there is a loss of liberty. Where the Court may have disagreed, I think, was how to resolve the particulars in Lassiter, the dissent finding that counsel was necessary to meet due process overcoming the presumption, but at least for five members of this Court the presumption does follow logically, even if the result in Lassiter could be disputed, from Scott, and from Argesinger, and from Gideon. In standard of proof cases, that bright line has never existed. This Court didn't utilize that reasoning in Vance against Terrazas. To the contrary, the Court examined quite carefully the heavy burden on the state to show voluntary, purposeful relinquishment of citizenship as a balancing question in determining what standard of proof was necessary, and so Lassiter, of course, for those states in which counsel is not required makes this case all the more important, but ultimately-- Speaker: Mr. Guggenheim, what provision... you are urging us to say a state must do something in this context. What provision of the Constitution do you rely on? Martin Guggenheim: --We rely on the Fourteenth Amendment, and on the-- Speaker: On what part of it? Martin Guggenheim: --the Mathews and Eldridge analysis, asking what process-- Speaker: This is a question of procedural due process? Martin Guggenheim: --Yes, sir. Just the way this Court found that to be the case in Winship. The Court in Lassiter has already determined... Justice Stevens in Lassiter suggested in his-- Speaker: Well, you are not arguing, then, or are you arguing that there is some right to family, some family right that is being violated here? Martin Guggenheim: --Well, the liberty rights being violated are-- Speaker: Liberty? Martin Guggenheim: --include... could be said to include the substantive concept of family privacy, integrity of family rights, but one does not have to go off on substantive due process in this kind of case. Justice Stevens's dissent in Lassiter recognized the point that the Mathews and Eldridge test belittles constitutional analysis, or is mistaken constitutional analysis when we are concerned with fundamental, basic liberty rights, such as the right of parents and children to be related to each other. Speaker: You have spoken to the rights of the parents here, and of course that is very important, but is there not a right which is more important than the right of the parents, namely, the right of the child, or the children? Martin Guggenheim: Absolutely, and this case is not at all to suggest that permanent destruction of a family is inappropriate. But permanent destruction of a family when it is unnecessary is inappropriate. Permanent destruction of a family which shouldn't be done by the state is offensive to the rights of children, at least as much so to the rights of parents. To be made a permanent ward of the state needlessly, to lose the love and affection of a family... even to know that there are parents out there, as this Court recognized in Kabann, is a fundamental right, and this case doesn't suggest that children aren't entitled at some point to be severed from their parents. This case is merely to suggest that when that grave act is set out, that it be done so in a convincing manner. Speaker: What was the standard that was applied here? I mean, what was the substantive rule that was applied here? Martin Guggenheim: The question before the court that was litigated, although the test is a little broader than this, was whether the parents substantially, continuously, or repeatedly planned for the future of their child. Speaker: Well, now, is it your contention that the clear and convincing standard should apply to the findings of historical fact, who did what to whom, or who said what, or what actions people take? Is that what you are talking about? Or are you talking about the conclusion from these facts that this standard has been violated? Or both? Martin Guggenheim: I think only the former. The question in the latter context, I think, embraces more directly the question of the scope of the substantive test, and I think a challenge to that ought to be made forthrightly. Speaker: By the latter, do you mean the conclusion that it is in the best interest of the child or the children to be separated from the parent? That is the ultimate conclusion, is it not? Martin Guggenheim: Well, except that New York bifurcates those questions, and makes the final revocation at a dispositional hearing where the standard is merely best interests. Speaker: As to which of these do you direct your claim of clear and convincing evidence standard? Martin Guggenheim: Whether the parents and the state engaged in conduct or failed to engage in conduct which justifies the termination itself. The condition precedent to the order terminating rights is a finding by the court based on an historical record that the parents did or did not do something and that the agency or state did or did not do something, and I think Justice White's question embracing the second component goes more directly to a substantive challenge to a standard. Speaker: Well, I just wanted to know what your contention was. Martin Guggenheim: It is that the facts have to be-- Speaker: You do not urge us to apply the clear and convincing standard to this mixed question of law and fact, as to whether or not the historical facts add up to-- Martin Guggenheim: --Enough. Speaker: --to enough? Martin Guggenheim: No, that is not this case. That is not this case. Speaker: Tell me, Mr. Guggenheim, under the answer you have just given, would circumstantial evidence ever be enough under your standard of clear and convincing then? Martin Guggenheim: Yes. It is in a criminal proceeding. Speaker: I know. Martin Guggenheim: We have tests. Absolutely yes. But we want the finder of fact to be convinced. We want at least that much. This is fundamental to basic notions of American tradition, that you can't destroy a family forever when you are not convinced that it is the right thing to do. Speaker: Mr. Guggenheim, isn't it ultimately perhaps more important to look at the overall scheme and requirements for severance of parental rights to determine whether it is a fundamentally fair scheme for handling the problem than to simply apply an artificial standard of proof, without an examination of the entire scheme? Martin Guggenheim: I think an examination of the entire scheme is appropriate, but I think that in any case where the finder of fact is convinced no more than the evidence is probably right, no more that would justify a showing that somebody struck somebody in an automobile and has to pay damages. It just isn't enough, and Justice Blackmun's question respecting the distinction in Lassiter, where that is exactly what the Court did, it said, we will look at each case as it comes, simply cannot be done in this context. This case wouldn't be before this Court unless there was a substantial question that the Constitution requires a higher standard of proof. If the Court were to rule that there is no constitutional requirement of standard of proof, certiorari couldn't even be brought under... to this Court to review the record, but even if it could, or if the appellate courts were to review records, you can't after the fact judge that, well, this did meet the preponderance of the evidence standard, but somehow that is not enough here. That is not the way law is made. It is instead in this kind of context, the allocation of risk must be calibrated in advance. The degree to which we want the finder of fact to be convinced must be set out before the trial takes place so that the parties know in what framework they are litigating. Speaker: What in practice is the difference between the standard by a preponderance of the evidence and the standard by clear and convincing evidence? Martin Guggenheim: Chief Justice Burger, in Addington against Texas, I believe, wrote that we may never know the answer to that question, but we do know that there is a difference. We do know, as this Court in Sumner against Mather just last term, Justice Rehnquist's opinion pointed out that the difference between overturning a conviction based upon the preponderance of the evidence and overturning a conviction by convincing evidence, as Section 2254(D) of the habeas corpus statute requires, means something. It meant enough in that case to remand for the specific findings. What does that do? That heightens the pressure or the critical moment, which is exactly what Justice Harlan in Winship was suggesting ought to be done, when you interfere with fundamental liberty, on the finder of fact to express precisely what and how the judgment is justified, so that appellate courts and the finder of fact him or herself is satisfied. We don't know precisely what it means, but we certainly know in the multifaceted ways in which it has been used that it means something. Speaker: But say in a charge to the jury in a fraud case, which is typically clear and convincing evidence-- Martin Guggenheim: Yes. Speaker: --do you think it really makes much difference whether they are charged that they must find fraud by clear and convincing evidence or by a preponderance? Martin Guggenheim: I have never been a juror, and I have frankly never tried a case of that kind, but I would think that it has potential to make a difference in every case. Now, it may be that a juror would say, I don't understand the difference, but I don't think judges say that. The judge certainly didn't say that in Winship. This Court didn't say that in Sumner against Monta. It does make a difference, I think. These cases are non-jury cases, and I think that impressing upon judges the obligation they have to be sure of their result is an important one and a meaningful one. Comparing this kind of problem with the problem in Vance against Terrazas also favorably indicates that a higher standard of proof is necessary. The agency only need show the everyday, ordinary facts of life to win its case, unlike in Terrazas, the heavy burden of showing purposeful, voluntary relinquishment of citizenship. Here, the question is, have the parents visited, and when I suggested that the standard, Justice White, for making the determination of termination includes a number of factors. One of them is whether they planned. That was the one in this case. Another is whether they visited. Another is whether the agency has utilized diligent efforts. These are all matters in the agency's knowledge, within the agency's records. Everyday, ordinary events. And when we permit the permanent destruction without the certainty that it is appropriate, we have simply not measured up to constitutional rule. If there are no further questions, I will reserve some time for rebuttal. Warren E. Burger: Very well, Mr. Guggenheim. Martin Guggenheim: Thank you. Warren E. Burger: Mr. Scavuzzo. Stephen Scavuzzo: Good morning. Mr. Chief Justice, and may it please the Court, Respondent requests that the judgment of the New York State Supreme Court be affirmed. At issue before the Court is the constitutionality of a comprehensive state plan dealing with an important state interest in an area of domestic relations traditionally regarded as a matter of state law. The New York permanent neglect statute is the result of a delicate balancing of competing and intertwined interests between multiple parties whose rights and relationships are affected by all the branches of government. We don't feel, in light of the record in this case, that a different standard of proof would vary the outcome. However, if the Court should raise the burden, it would frustrate a specific intent of the legislature. In 1976, there was commissioned the Temporary Commission on Child Welfare. It undertook a year-long study. These results are published. They are cited extensively throughout Robert Abrams' brief, the Attorney General for New York. This extensive study was the basis for the present law. There is a risk of error here which Petitioners are challenging is incorrect. The legislature has evaluated this very risk of error. Its conclusion, based on that year-long study, was that under the preponderance standard, the risk of error ran considerably in favor of the parent. It went farther than that. That was certainly the main conclusion. However, it also determined that raising the burden would shorten the reach of the statute, which is precisely what the legislature did not want to do. Speaker: What do you mean by that? Stephen Scavuzzo: The legislature extensively evaluated the case files throughout the jurisdiction. There were thousands of people languishing in foster care. The legislature... of that set, the legislature identified a specific subset. These people, it felt, could not be reached by the statute under a clear and convincing standard. To adopt that standard-- Speaker: So you really... I take it the state's position is, yes, there is indeed a difference between preponderance and clear and convincing, in terms of actual results. At least that was the conclusion of your committee. Stephen Scavuzzo: --The main conclusion was that under the preponderance standard, the risk of error ran considerably in favor of the parent. However, it also felt that to adopt a higher standard would create a barrier to the freeing of adoption. That was precisely what it did not want to do. Rather, it made the statute more specific, set out the grounds for permanent neglect in much greater detail, to ensure greater accuracy so that everyone would feel comfortable with the statute's application. The legislature did feel that adopting the clear and convincing standard would create a barrier which they did not want. It cited in that report-- Speaker: Do we know that from the legislative history? Stephen Scavuzzo: --From the temporary-- Speaker: Or is it a post-legislative history analysis? Stephen Scavuzzo: --Oh, no. The legislature adopted the new law based upon the conclusions in that temporary commissions. As a result of that finding, they specifically decided to raise the standard to clear and convincing in cases where both parents, due to their mental illness, could not take care of their children in the foreseeable future, but they specifically decided not to raise the standard in permanent neglect cases, so that another barrier would not be raised to the adoption of these children. Speaker: Tell me again how you justified that distinction. Stephen Scavuzzo: The legislature-- Speaker: Where you ask clear and convincing evidence for a mental disability but a preponderance of the evidence otherwise. Stephen Scavuzzo: --The legislature felt that due to the scientific nature of the testimony involved in that type of proceeding, it is also not mental illness such that they cannot care for themselves or care for their children in the foreseeable future. The legislature felt in that instance that the parents should be protected due to the nature of the scientific testimony by a higher standard of proof. Speaker: Let me ask another question. We are concerned primarily with three children here, aren't we? Stephen Scavuzzo: Yes, Your Honor. Speaker: These people have two others, younger. Stephen Scavuzzo: Yes, Your Honor, they do. Speaker: Has the state ever moved on them? Stephen Scavuzzo: No, Your Honor, they have not. Speaker: Are you in a position then that they are unfit to handle the three older ones but not unfit to handle the two younger ones? Stephen Scavuzzo: At this particular time, yes, Your Honor, they would be. I would like to point out to the Court that at the time of the dispositional hearing, parental rights cannot be terminated at the permanent neglect finding which Petitioners are suggesting now is unconstitutional. There is a dispositional hearing later on under New York law. At that time, the parents had two children living in the home. They had the opportunity to demonstrate to the judge that notwithstanding the previous finding of permanent neglect, the children could be returned home in the foreseeable future. That is, conditions in the home had changed since that one-year period of permanent neglect. They had that opportunity to bring in the precise inference that the two children being in the home now would raise. Speaker: Of course, the parents are older, and the family is smaller with two than it would be with five. On the other hand, if one takes away... if the state takes away a driver's license in the state of New York, it is on clear and convincing evidence, isn't it? Stephen Scavuzzo: Yes. Speaker: That is more important than taking away children? Stephen Scavuzzo: No, absolutely not. What you have to look at is the entire package, the entire package of rights which is guaranteed by the New York state statute. Petitioners are challenging only one particular aspect of that statute. The safeguard... There are more safeguards under this type of permanent neglect statute than there would be in the the one hearing to take away a driver's license. There is in this case an initial removal proceeding, where, based upon a finding of abuse and neglect, the child is removed from the home. Again, there is a permanent neglect finding which the Petitioners are challenging here, but rights cannot be terminated at that permanent neglect finding. There is another hearing. At that other hearing, known as the dispositional hearing, the government has the burden again to show that notwithstanding the previous finding, the children cannot be returned to the home. There is also, I would like to point out, direct the Court's attention to Family Court Section 1061. Upon good cause shown, the parents may move to vacate any order of the family court. One of the grounds is precisely this newly discovered evidence that Petitioners are alluding to here, so they do have another opportunity. They certainly have the opportunity at the dispositional hearing to present further evidence. Speaker: But, Mr. Scavuzzo, once at the dispositional hearing there is an order terminating parental rights, that is the end of it, isn't it? Can the parents come back and attack that order? Stephen Scavuzzo: Under 1061, they can move to attempt to vacate that order. The grounds, however, are much narrower. It would be newly discovered evidence, fraud. The statute spells it out. Speaker: But if the state loses, as I understand it, the state may initiate another termination proceeding. Stephen Scavuzzo: That's correct. The procedure that I am suggesting would only-- Speaker: So that if the parents have any attack at all open to them on a termination order, it is only this limited one that you mentioned-- Stephen Scavuzzo: --Yes. Speaker: --the newly discovered fraud or something like that? Stephen Scavuzzo: It would be-- Speaker: Have there been many like that under New York practice? Stephen Scavuzzo: --No. Speaker: Any? Stephen Scavuzzo: Not in the cases of permanent neglect. No, Your Honor. Speaker: As you know, counsel, there has been a great deal of writing on this subject by people who purport to be students of it, and many of them have said that as a practical matter, judges do not remove custody in this way unless they are fully convinced, which certainly implies that the evidence is clear and it is convincing to the judge, and that it is probably more than a preponderance. What do you have to say about that? Stephen Scavuzzo: That was precisely one of the findings of the New York state legislature. They found that the way the judges were applying this particular preponderance standard, the risk of error ran considerably in favor of the parents, and that to raise another barrier was not necessary since the parents were already protected, and Number Two, they felt, after review of the case files, it would eliminate some people from the reach, the umbrella, the protection of the statute, and they wanted the specific subset to be within the reach of such a statute. Speaker: Did the Commission look at the laws of other states? Did they make a survey of the practice? Stephen Scavuzzo: No, they did not. It would be much too complicated to evaluate every particular safeguard of every particular statutory scheme. They evaluated-- Speaker: Well, there are some 30 or more states with a clear and convincing standard in cases like this. Stephen Scavuzzo: --That's correct, Your Honor, but the legislature's job, the only job they could undertake with any type of certainty-- Speaker: To deal with the New York situation. Stephen Scavuzzo: --The entire package, how does the statute operate as the whole, what is the risk of error in this particular jurisdiction-- Speaker: Mr. Scavuzzo, may I ask a question here? In your brief, you suggest that the right at stake here is comparable to the right in a licensing procedure or various property cases, and that one should weigh the burden of proof as part of the total package of procedures, and if the entire procedure is fair, burden of proof isn't very important. Supposing the burden of proof for probable cause, that there was probable cause to believe the children would be better off in the foster home. Would that be constitutional in your judgment, if all the other procedures you can think of were given to protect the parents? Stephen Scavuzzo: --As I understand your question, Your Honor-- Speaker: My question is, would that be constitutional in your view. Stephen Scavuzzo: --No, because that would place the burden on the parents. Speaker: Well, but it may well be... well, anyway, you say that would be unconstitutional. What is wrong with placing the burden on the parents as a matter of constitutional law if they have all the other procedures and protections you talk about? Stephen Scavuzzo: Certainly under New York law, as we would suggest should be the case, the burden should be on the state to prove that the family cannot be reunited in the foreseeable future. That is the essence of this law. That is where the state switches roles. The initial function of the state under the statute is to reunite the family. They can do no other. At some point in time, however, the agency, checked by the trial judge, has to make a determination that that goal is no longer possible and that the children cannot be returned home in the foreseeable future. It is only at that point does the state have the right to go in and terminate those rights. Again, the legislature evaluated how that precise standard operated under New York law, and came to the conclusion, the well-reasoned conclusion, that the risk of error still ran considerably in favor of the parents. The substantive grounds based here, the failure to plan, are neither vague nor subjective. They are specifically defined by the law. That failure to plan for the child's future is merely the failure to utilize the programs and services which are available to the particular parent. The plan relates to the initial problem. There should be no question here there was an initial problem in the Santosky home. The plan, the services made available to the parents are then utilized to solve that problem. I would like to point out that the parents can formulate a plan of their own. They need not adopt the agency's plan, utilize the services which the agency offers them. A good example is the facts and circumstances here. A problem in the Santosky home was economic. Mr. Santosky was unemployed. Ulster County offered him vocational training, which he participated in for some period of time. Later on, it was his contention that he would be better served by working under the supervision of a relative as a car mechanic. The agency had no objection to that plan, the utilization of that service to solve his problem. Speaker: Mr. Scavuzzo, how do these cases originate? Stephen Scavuzzo: Okay. The permanent neglect findings, the child has to be in the custody of the agency. That happens at an initial proceeding before the family court where the state proves beyond a preponderance of the evidence that abuse or neglect has transpired in the home. The child is then removed from the parents' custody. Speaker: But to go back one step, I mean, presumably 90 percent of the families in New York never get into this mill. What is the first step that gets them into this procedure? Stephen Scavuzzo: It would be that... that initial finding of abuse and neglect by the family court. Speaker: How do you find... who detects that? Stephen Scavuzzo: Well, the system operates in New York, these cases have to be reported to the agency. There was approximately 70,000 reports last year of abuse-- Speaker: Well, who reported it in this instance? Stephen Scavuzzo: --The grandmother of Mr. Santosky. Speaker: That is the way the whole thing started? The grandmother complained? Stephen Scavuzzo: That was Tina. Speaker: What initiated that was some injuries to the children, was it? Stephen Scavuzzo: Yes. Tina was initially removed in 1972 based... she had some severe welts on her backside. She was taken away from the parents for three weeks, returned back from the home. Approximately a year later, more problems developed. Another report from the grandmother. She was adjudicated to be neglected. There was a finding by the trial judge that abuse had transpired in the Santosky home. She was kept away for a period of approximately eight months, and returned home on a trial basis. The agency recognized that there are specific problems when a child is removed for more than one year. They tried to avoid that problem here, returned Tina to the home on a trial basis. She was home for about two months when there were other abuse problems, which we have described in our brief, to John the second. Ulster County in this case did everything possible, offered every service that could have been made available to the Santoskys, psychological counseling, psychiatric counseling, educational service, vocational training, nutritional, homemaker service, family counseling, every possible service was urged upon them by Ulster County. Not all of those services have to be accepted by the parent. A good indication of that is the first termination proceeding of parental rights, which the government lost, in November of 1976. It is a good indication of how well parental rights are protected by the trial judges in New York state. The legislature by that survey indicated they had a tremendous amount of confidence in our trial judges. This survey, this commission determined that under the preponderance standard, parental rights were more than adequately protected. It is evidenced here. One government witness testified after approximately three months of seeing the Santoskys. This was in 1976. The children had been away from the home for approximately two years. The government witness testified that, yes, they were making some type of movement, they were benefitting from our service, and Mr. and Mrs. Santosky took the stand and felt, yes, they had received the benefit from the service. That was enough for the trial judge to say, yes, these people are utilizing the services. They are taking advantage of them, and thus planning for the future of their children under New York law. That stands in stark contrast to the second termination proceeding in February of 1979. The government witness, the family counselor, who said in November of 1976, yes, there is hope that this family can be put back together, finally, even she gave up hope. And the Santoskys never took the stand themselves to testify. Certainly at that time they had the opportunity to offer any type of evidence that they would utilize these services, deriving some type of benefit from programs that were being offered to them, and they failed to do so. Speaker: Do you happen to know how much the New York state budget is to deal with all these problems? Stephen Scavuzzo: No, Your Honor, I am not aware of that. Speaker: You said there were 70,000 complaints of maltreatment last year, so I suppose there is an enormous expense in the investigatory aspect of those complaints. Stephen Scavuzzo: Well, of those complaints. Not all of those cases the agency has the funding to investigate. They open up a file in only some of them. Speaker: Well, 70,000 complaints means that someone has got to make some inquiry in those cases, does it not. Stephen Scavuzzo: Yes, Your Honor, that is correct. Speaker: And you said about 1,200 a year are cases where the children are taken away from the parents? Stephen Scavuzzo: No. The agency acts in approximately 10 percent of those cases. We are talking about approximately... I have laid out the statistics as well as we can determine them in our exhibits. We are speaking about approximately 7,000 initial custody or removal proceedings, which the agency indicates. The 1,200 number is the permanent neglect, the termination proceedings which the agency eventually decides to-- Speaker: But you don't know the total cost of this care of these children, do you? Stephen Scavuzzo: --No, Your Honor, I don't. If the Court is interested, I would be happy to provide that information. The evidence, the failure to utilize those services, indicated a state of mind of the parents, that these parents had virtually abandoned their children at that termination proceeding in April of 1979. The trial court described their meetings between parent and child as devoid of any type of emotional contact. The children viewed those meetings as something merely to be endured. Throughout the course... this is six years... before the same trial judge, as... that's the practice; once the initial removal proceeding is instituted, the case remains before the same trial judge, who takes judicial notice of all the prior proceedings... the Santoskys never asked when their children would be returned home permanently. Judge Elwin based his decision, as he had to under New York law, on a preponderance of the evidence. However, the strength of his decision is not... his decision is not one of a man who had any reservations about his factual findings. He asserted that the Santoskys' failure to utilize these services was total and complete. Their miniscule efforts had tapered off to the point where he could not even measure them as an experienced trial judge. It has been nine years since the initial abuse of Tina, and this case cries out to be ended. I would like to close with the contention that there is a logical fallacy in Petitioner's argument. They are isolating their whole challenge on a comprehensive, very well thought out state scheme on only one particular procedural protection in the entire statute. The statute, with all those protections, all those hearings, has to be evaluated as a whole. That is the essence of the procedural protections. The parents must come before a neutral and disinterested magistrate at least three times before their parental rights are terminated. Again, the legislature evaluated precisely the risk of error under that package, and determined that it ran considerably in favor of the parent. Speaker: Mr. Scavuzzo, is it not still critical to your argument that the termination of parental rights does not involve a fundamental liberty interest? Stephen Scavuzzo: I don't think so. Speaker: That is where you start your main argument in your brief, at least. Stephen Scavuzzo: Certainly it is-- Speaker: Would you concede the termination is a fundamental liberty interest and nevertheless make the same argument? Stephen Scavuzzo: --No, I would suggest to the Court that this is not a fundamental liberty interest. However-- Speaker: In fact, you rest your whole argument on that premise, I think. Stephen Scavuzzo: --No, Your Honor, I don't. Even if the right is viewed in the abstract as fundamental, it is mitigated. It is distinguished from those other fundamental liberty cases. It is distinguishable by the interests of the children here involved, that is across the country, and specifically under New York law the length of time that that child has been away from the home, that mitigates the parental interest. Speaker: The thing that puzzles me about your argument is that you stress the fact that it is New York policy to presume that the natural parent-child relationship is in the best interests of the child. There is that kind of a presumption that runs throughout your statutory scheme. Stephen Scavuzzo: Oh, yes. Speaker: Doesn't that tend to support the notion that New York regards this as a rather important liberty interest? Stephen Scavuzzo: Oh, New York regards this as an extremely important liberty interest. Speaker: But not fundamental. Stephen Scavuzzo: Not fundamental. They feel it is protected adequately by the procedural safeguards which they have developed in their statutory package. Speaker: Well, New York could regard it as important both for the parents and for the children, and when they come to cross purposes, perhaps neither one would have a "fundamental right". The issue is whether they are at cross purposes or not. That is the issue. Stephen Scavuzzo: The issue at what point does the state determine when the family cannot be reunited in the foreseeable future, someone has to make that evaluation. The question is, under what standard. The agency, when it begins, when the child is initially removed from the home, must bring... put that child... do everything possible it can to put the child back in the home. It can act in no other fashion. If it does, the parents have a right to file a petition to terminate placement. However, there is a balancing here of the interests of the child. Not in all cases can the statutory obligation be met. Speaker: No, but in all cases at the beginning of the proceeding, because you must meet a preponderance standard, there is a presumption that the interest of the child is to remain with his parents. Stephen Scavuzzo: Yes. No question that the-- Speaker: Does it make much difference whether we call it a fundamental right or use some other adjective if... is not the question whether, taken as a whole, the procedure gives paramount status to the interest of the children? Stephen Scavuzzo: --Yes, Mr. Chief Justice, that is precisely the evaluation which New York State undertook in 1976. The question-- Speaker: You think they do that with a preponderance standard then. Stephen Scavuzzo: --Yes, I do. Speaker: Plus the other protections. Stephen Scavuzzo: Yes. If there are no further questions, thank you. Warren E. Burger: Very well. Mr. Guggenheim? Martin Guggenheim: The question of the rights of the children and the rights of the parents here are, as Justice Stevens suggested just a moment ago, before the Court in the same context. It begs the question to suggest that their interests are different. They may be and they may not be. Chief Justice Burger indicated in questions to Mr. Scavuzzo that judges around the country, commentators have told us, frequently regard the decision to terminate of such a great moment that they want to be convinced that it is the right thing to do before they do it. That is because, if it is true, we have recognized as a society the social disutility of an erroneous permanent destruction of a family. This case merely would suggest that that social disutility is of constitutional moment. If, as Chief Justice Burger has stated, the commentators correctly to be correct and people are doing this already, then very little is lost by it. But if people are not doing it, if children are being destroyed needlessly, then this case will protect them, and that should be done. Even where, and the record shows this, permanent destruction is effected, adoption, which could be the only feasible benefit accruing to the children, is effected only about 40 percent of the time. So we have children... 60 percent of the time. I am sorry. Forty percent of the cases, permanent adoption is not effected for children free for adoption by this route. So, we have a preponderance of the evidence terminating rights where it benefits children at best a preponderance of the time. The Constitution requires more. If there are no further questions, I will stop at this point. Warren E. Burger: Thank you, gentlemen. This case is submitted.

Warren E. Burger: We will hear arguments next in 78-756, Ohio against Roberts. Mr. Shoop, I think you may proceed whenever you're ready. John E. Shoop: Mr. Chief Justice, and may it please the Court. I am John Shoop, Lake County prosecuting attorney, representing the State of Ohio, petitioner herein. I would like to take some time, with the Court's indulgence, to explain some of the facts that brought the case before this Court. In January of 1975, one Herschel Roberts was arrested on the charge of forging a check. At that time he was afforded a preliminary hearing in the Mentor Municipal Court, at which hearing he was present it was a hearing before a judicial tribunal, a judge the hearing was recorded witnesses were called and sworn the defendant had the opportunity and the use of counsel, counsel was present and other indicia of reliability were present at this time in that defendant had the opportunity to use the compulsory process of the state to force the attendance of witnesses. Warren E. Burger: Who called the witness that's in question here? John E. Shoop: All right. At the preliminary hearing the witness was called by the defense counsel, and it was expected then that this witness would corroborate something in light of the defendant's testimony, or anticipated defense. The case -- the preliminary hearing proceeded, and after the calling of this witness and the discovery, then, by the defense counsel, that this witness was testifying adversely to his defendant, the defense counsel, without objection from the state, without objection from the court, began to ask leading and argumentative questions -- William H. Rehnquist: But he couldn't have objected, the other side couldn't have objected, could he have? Hadn't Ohio abolished the voucher rule? John E. Shoop: Technically, we have abolished the voucher rule. But we do have a provision that provides that in this type of situation, the counsel can ask the court to declare the witness hostile to allow him to cross-examine the witness. Now, of course, with no objection -- He did not require -- or ask the court at that time and that could be because there was no objection from either the court or the state at that point. Without -- Byron R. White: Well, you say there were some questions he wanted to but didn't ask, because of any rule of Ohio law? John E. Shoop: No. The question that he could have asked was, that he could have asked the court -- Byron R. White: Well, I know, but he didn't. And -- but do you think he terminated his examination of the witness he called? John E. Shoop: Of his own free will, yes. Byron R. White: But short of asking some questions that he wishes now he had asked? John E. Shoop: That's totally within the mind of the attorney. I can't tell you whether he had asked all of the questions. I feel that -- Byron R. White: As far as the record shows, he was free to ask any question he wanted to? John E. Shoop: And I believe he did. And I feel he explored this witness, Anita Isaacs, as far as he could and wanted to at that point. The hearing continued, and of course, the defendant -- the probable cause was found, and the defendant was bound over to the grand jury. He was subsequently indicted. Fourteen months later was the trial on the action. Now, this was in March of 1976. All of these delays were caused by either the absence of the defendant himself from the jurisdiction or, one delay was with the approval of the state there was one joint request for continuance. At the trial, the case in chief was presented, and at one point in the hearing, Mrs. Isaacs, the mother of the absent witness, was asked if she knew the whereabouts of her daughter, Anita Isaacs, and her response to that was, "No," she did not. Now, this was during the case in chief, the state's case in chief. Subsequent to this, the defendant put on his testimony and evidence, and the defense attorney, knowing the plan of the prosecution was to eventually submit evidence of a prior recorded testimony, under oath, of this absent and unavailable witness, requested before Mrs. Isaacs, the mother of the absent witness, could leave the courtroom, requested a voir dire examination for the purposes of discovering whether or not this witness was actually unavailable. This was the defense counsel at trial. William H. Rehnquist: Well, are you challenging here, Mr. Shoop, the finding -- the Supreme Court of Ohio is generally for you in result. But as I read Justice O'Neill's opinion, he found quite clearly that the witness was unavailable. Are you challenging that finding? John E. Shoop: Not at all. We do not believe that the question of unavailability is actually present before this Court. We feel that the question of unavailability was not actually raised. It was not presented with our argument, in our petition. We presumed, in our petition, that the unavailability of the witness has already been determined. It has been determined by the trial court and by the Supreme Court of Ohio. And there seems to be no question of the unavailability of the witness, and the state's good faith attempts to locate that witness. Harry A. Blackmun: On that issue, the Supreme Court of Ohio was unanimous, was it not? John E. Shoop: It appears that -- yes, even though we had a four to three decision in the Supreme Court of Ohio -- Harry A. Blackmun: They all agree he was unavailable? John E. Shoop: Yes, both the majority and the minority agreed that the witness was unavailable. Warren E. Burger: Unavailable in the sense, ultimately, that she wasn't there, or unavailable in the traditional sense? How do you read the language of the Court on that? John E. Shoop: I read that as unavailable in the sense that there was no way the State could produce this witness at the trial, in order to present her testimony. And for the purposes of the statute, 2945.49 of the Ohio Revised Code, which permits the use of prior recorded testimony under oath, when, for any reason, the witness is unavailable, the Supreme Court determined then that this fact is established this witness is unavailable for the purpose of this statute. Warren E. Burger: Under Ohio law -- going back now to the preliminary hearing -- under Ohio law is it required that the person have been subjected to cross-examination, or simply that the witness was available for cross-examination by the adverse party? John E. Shoop: That's the very essence, I believe, of our argument here before the Court, that the opportunity for cross-examination, in the proper circumstances, satisfies the confrontation clause of the Sixth Amendment, whether or not actual cross-examination transpires. Harry A. Blackmun: Mr. Shoop, may I ask a question on availability. Do you read the state court's opinion to hold that as a matter of state law, the witness was unavailable and -- which is what it seems to say it relies on the statute. And then my second question -- I put them both to you at the same time -- is there also a federal requirement of unavailability, and did the court find that that requirement was met? John E. Shoop: I read the Supreme Court's argument, or decision, as that both unavailabilities are satisfied in this case, both for the purposes of any Federal implications, and for the purposes of the State statute. Byron R. White: Do you agree there is a Federal constitutional requirement on availability? John E. Shoop: Yes, I do. I believe that is the predicate for the introduction of prior recorded testimony. Byron R. White: You, in effect -- you read the Ohio court as, in effect, having decided two questions on availability. Issue one is, that as a matter of the state statute, the witness was unavailable. And two, the a sufficient showing was made to avoid the confrontation clause problem. John E. Shoop: Yes, I do. William H. Rehnquist: You really could hardly argue otherwise, could you, in light of page 19 of the petition, the blue volume, where it says, chief justice -- the late Chief Justice O'Neill as saying, at the beginning of the paragraph, "In the instant cause the appellee argues that the state failed to show a good-faith effort to produce the witness in person, as required by the rule in Barber. And of course Barber is a case from this Court. John E. Shoop: That's correct, Your Honor. Byron R. White: That's right, but if you read the last sentence of the paragraph, the reference is just to state law that's how he answered the question. And I think the court may have assumed the two tests were the same. I wonder if you assume they're the same? John E. Shoop: I'm assuming that they are, Your Honor. Byron R. White: They are the same? Whatever would satisfy a state requirement on availability automatically satisfies the Federal requirement? John E. Shoop: And in this case, that's what I believe was decided. Subsequent to the preliminary hearing and eventual trial, the introduction of the testimony was permitted of the unavailable and absent witness. That was over the objection of defense counsel, and defense counsel's objection was to the Sixth Amendment confrontation clause. There were two appeals, of course, prior to the case coming here, and the first appeal going to the Eleventh District Court of Appeals for the State of Ohio. In that appeal the Court of Appeals decided that a good-faith effort on the part of the state was not shown, and that the defendant was denied his Sixth Amendment right to confrontation. It is from that decision that we, the state of Ohio, appealed to the Supreme Court of the State of Ohio. And at that point, the Supreme Court of the State of Ohio ruled that the witness was unavailable we had made every good-faith effort we could make and decided that question but held that the Sixth Amendment right of the defendant to confront and cross-examine the witnesses, pursuant to this state statute, was denied to the defendant when actual cross-examination at the preliminary hearing did not take place. It is from that decision the case was presented and is here before the Court. Byron R. White: Now let me get that straight. What you just described, is that the holding of the Ohio Supreme Court or of an intermediate court? John E. Shoop: That is the holding of the Ohio Supreme Court. Byron R. White: Did the Ohio Supreme Court actually hold that you had made a good-faith effort? John E. Shoop: They found that -- John Paul Stevens: Or did they say that due diligence would not have procured the witness? And are those two not different? John E. Shoop: I don't think that they are that different significantly different. I believe that the due diligence argument, or the statement of the court, satisfies the fact that we have done what we could do in good faith to provide for this witness -- Warren E. Burger: Well, it seems to me the Ohio courts put some gloss on the good-faith standard. John E. Shoop: I believe it's a matter of semantics, Your Honor. I'm not convinced that that is -- that they said otherwise. Warren E. Burger: Are you relying on the ancient maxim that people aren't required to do what is fruitless and pointless? John E. Shoop: That is one, Your Honor, yes. But I also believe that the question of unavailability is not even before this Court. Now, we have mentioned it, and we have talked about it, but the question is not properly presented here. Warren E. Burger: But Chief Justice O'Neill's opinion states, "Therefore the trial judge could properly hold that the witness was unavailable to testify in person." That ties right in with what Mr. Justice Blackmun was asking you. And your argument is that in the face of that paragraph, of which I read only the last sentence, there was no need to show any efforts that the record taken as a whole demonstrated that it would have done no good to telephone California or the social worker or anyone else? John E. Shoop: That's correct. Your Honor. There is no place for us to go. The question of unavailability, or whether or not a good faith effort has been shown, relies and presumes knowledge of the whereabouts of the unavailable witness. Now, in every instance of the cases that have been cited, where either the defendant was incarcerated in a Federal penitentiary, was located in an absent state, was out of the country in Sweden in any of those situations, the critical factor on unavailability, if we're going to argue unavailability, is that knowledge of where that absent witness is, exists. Absent that knowledge -- John Paul Stevens: What did the prosecution do other than to serve these subpoenas at the residence of the parents? John E. Shoop: In the -- John Paul Stevens: What did you do when the requested telephone calls did not come in? John E. Shoop: At that time we were in contact with Mrs. Isaacs. And we knew, even though we have on the form, on some of these subpoenas -- it's a stamp that the prosecutor's office applies to the stamp, in order to help us know whether or not our subpoenas are actually being served or not -- in this case we knew that the witness was gone and absent. We had prior contact with Mrs. Isaacs, the mother. And we've already indicated that at page 10 of the Appendix, where Mr. Perez was questioning Mrs. Isaacs on direct examination, and he talked to her about the fact that "I talked to you some five months earlier in November. And at that time you indicated your daughter had been gone and absent for some time." And in fact, we had knowledge of this. Where to look? We had no knowledge. John Paul Stevens: Mr. Shoop, is your answer to Justice Blackmun, that because of the prior history, you did nothing more? John E. Shoop: There was nothing more for us to do. John Paul Stevens: You did nothing more than he described in his question? John E. Shoop: That is correct. John Paul Stevens: Your answer to both my questions is "Nothing"? John E. Shoop: I -- I apparently have forgotten the other question. John Paul Stevens: I asked, generally, what you did other than serve the subpoenas at the residence of the missing witness' parents. John E. Shoop: We did talk with the parents. John Paul Stevens: And I take it the answer to that is nothing, and I asked you positively what else you did. And I guess the answer to that is nothing, other than talk to the parents, and know she was gone. John E. Shoop: Yes, and they did not know where she was. John Paul Stevens: But you also knew she had been in San Francisco, some other places, didn't you? John E. Shoop: Yes, we knew there had been a contact in San Francisco. That was one month after -- one or two months after the original incident, which would have been in April or May of '75. Subsequent to that hearing, or that notice, there was a notice in the summer -- William H. Rehnquist: Are you referring to page 11 of the transcript, where the question is Oh, you talked to your daughter, and is that the last time you talked to her and the answer is, no, she called again later in the summer. We don't know where she called from? John E. Shoop: Correct, Your Honor. That's what I'm referring to. And at least in November the state was aware of the fact that this witness was gone and absent. And we had no knowledge of where to go from that point to locate her. Now, what more the rules would require of us, I cannot imagine. John Paul Stevens: Well, suppose there hadn't been this opportunity to cross-examine at the preliminary hearing. Suppose she hadn't been a witness there at all. And yet you had a -- sufficient for the purpose of the preliminary hearing. Would you have done any more? It's convenient to have this preliminary hearing transcript available, isn't it? John E. Shoop: Oh, it's -- yes, Your Honor, it is. It is convenient. If that is the application that is used of this. But in this case the witness was unavailable. And it is not unavailability due to any neglect on the part of the prosecutor, or any hindrance by the prosecutor. What more we could have done, whether or not this witness was here, if this were a crucial witness, crucial to the facts and to the establishment of the crime, the prosecutor might be left with no alternative but to decide whether or not to proceed on the case. Because this was not a crucial witness at this point, we were left with whatever means we could have at our disposal to find the witness, once we have some indication of where that witness might be. The question then presented is, where a witness, called by a criminal defendant at a preliminary hearing, testifies in a manner incriminating the defendant, and was not cross-examined, although there was opportunity to do so, and that witness is later shown to be unavailable to testify at the trial, the same defendant on the same charge, does the confrontation clause of the Sixth Amendment of the constitution of the United States preclude the state's use of an unavailable witness' prior recorded testimony? The use of prior recorded testimony of a witness who is unavailable for trial is not repugnant to the constitution or the confrontation clause of the Sixth amendment, when there are certain indicia of reliability. Those indicia of reliability outlined by the various cases that have been cited include a full-fledged judicial hearing with sworn and recorded testimony the defendant being present counsel being present and the opportunity to cross-examine the witness. We submit that all of the indicia of reliability were present in this case, plus others. Secondly, the opportunity to cross-examine the witness is the key to whether the demands of the confrontation clause are met, not whether actual cross-examination took place. And the Ohio Supreme Court, in its dissent, summarizing, Barber, Green and Pointer, which are United States Supreme Court cases on this, said that the extent of the cross-examination, whether at a preliminary hearing or at a trial, is a trial tactic. The manner of use of that trial tactic does not create a constitutional right. Thirdly, the unavailability, the question I believe is not properly before this Court, and the question presented in the petition for certiorari presumes the unavailability, and the respondent did not cross-petition on this issue, which he now attempts to raise. Further, both the trial court and the Supreme Court of Ohio have determined the witness to be unavailable as a matter of fact, and that determination should not be disturbed. Finally, where the testimony is taken at a full-fledged judicial hearing, the opportunity to cross-examine satisfies the confrontation clause of the Sixth Amendment, regardless of the use made of that opportunity. A full-fledged judicial hearing existed here in this case, which closely approximates a trial.Green mentions factors of a full-fledged hearing. And they are, as I mentioned before, the judge hearing the case, the witnesses under oath, the counsel and defendant present, the judicial record to assure the accuracy of the statement and the recording, the opportunity to cross-examine. William H. Rehnquist: Well, frequently, counsel, at a preliminary hearing, your defense lawyer's best tactic is to keep his mouth shut, because all the prosecution has to produce is a probable cause to bind over. I take it here the defense lawyer went further and called a witness of his own? John E. Shoop: That is correct. William H. Rehnquist: And that is this particular witness. John E. Shoop: And that is this particular witness that we are now confronting this Court with. Furthermore, besides the standards laid out in Green for a full-fledged hearing, this afforded, in addition, the use of the in the state of Ohio, full use of evidence. The rules of evidence are mandated for preliminary hearings in the state of Ohio. Compulsory process, the full panoply of the criminal rules and the trial procedures are available for the defendant's use. Now once we've established that the prior recorded testimony was taken at a full-fledged judicial hearing, then we submit that the opportunity to cross-examine satisfies the confrontation clause, regardless of what use was made of that opportunity. That can be explained by the fact that a witness called on direct knows that they will be subject to cross-examination, and yet whether actual cross-examination takes place is not known until the completion of the direct examination. Therefore, the motivation to testify truthfully is just as valid before the cross-examination as it could be afterwards. Secondly, we submit that the confrontation clause is not a right which must be knowingly and voluntarily waived, as certain other Sixth Amendment rights, for example, the right to counsel. We submit that the confrontation clause, and the opportunity to cross-examine is comparable to the compulsory process clause which was afforded the defendant. And regardless of whether or not the defendant makes use of that compulsory process clause, or waives that right, he does not have to waive, or give a knowing and voluntary waiver, of that right to compulsory process. We submit that the opportunity to cross-examine falls within that Sixth Amendment right. There have been some objections throughout the briefs raised to this opportunity alone satisfying the confrontation clause. The Eleventh district Court of Appeals for the State of Ohio stated that confrontation is a trial right and that is correct. We do not dispute the fact that the confrontation right is a trial right. But it is not an absolute right. It is a preferential right, as Mattox so noted. According to Mattox, the law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused. The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face-to-face, and of subjecting him to cross-examination. The second argument that has been raised is the difference in structure between the preliminary hearing and the structure of the trial. In Ohio the structure of the preliminary hearing follows close to the criminal rules, and provides a full panoply of constitutional safeguards. The defendant has the absolute right to be present the absolute right to counsel the absolute right to compulsory process the absolute right to cross-examination the full use of the rules of evidence. He has -- he's entitled to witnesses under oath and a judicial tribunal. These are absolute rights preserved to a defendant in a preliminary hearing, and they so closely approximate the trial that there is rarely much of a difference in the structure. Thirdly, there is a strategy argument, where counsel at a preliminary hearing may be -- may not use the same strategy as he would at trial. But as an advisory opinion, and I believe a well-reasoned opinion, the Sixth federal Circuit Court of Appeals, in Havey v. Kropp, cited in our brief, states that where a state statute exists which allows use of prior recorded testimony, and counsel has notice of the statute, and the attorney chooses not to use the preliminary hearingn -- or chooses to use the preliminary hearing as a fishing expedition or to fail to explore the weaknesses in the State's case, does so at his client's risk. In this case, we do have a state statute in question which was in existence at the time of the preliminary hearing, and was well known to defense counsel. And that state statute, 2945.49 of the Ohio Revised Code provides that prior recorded testimony under oath can be used at a subsequent hearing when the witness is unavailable. Finally, the defendant in this case actually did make use of his right to confront the witness here, which establishes compliance with the confrontation clause. There was de facto cross-examination of the witness. The totality of the circumstances under which the testimony is taken, including the leading and argumentative questions afforded the jury at trial, a satisfactory basis for evaluating the truth of the testimony. Thus we submit that the Supreme Court of Ohio was in error when it held that the prior recorded testimony of an unavailable witness was constitutionally inadmissible. The judgment of that court should be reversed. Warren E. Burger: Very well. Mr. Plasco? Marvin R. Plasco: Mr. Chief Justice, and may it please the Court. We would wish to expand upon the facts for this Court that petitioner has given to give you some additional information. In the case at bar, the defendant was arrested -- petitioner was arrested on January 7th, 1975. His preliminary hearing was had three days later, January 10, 1975. At that time he had appointed counsel. I don't know if the counsel had seen him prior to the preliminary hearing or not. His entire defense -- this is a forgery case, and also some receiving stolen property, some items, a chalice, some silverware -- his entire defense was that his, quote, girlfriend had given him certain items, that she had given him a checkbook written by her father, the complaining witness, and that she gave him permission to use these items. At the preliminary hearing, which is a probable cause hearing -- and we respectfully differ it is not a trial, the constitutional rights are different -- at the preliminary hearing in this matter, the complaining witness, Mr. Isaacs, Bernard Isaacs, was present, I assume, since I was not the attorney then, because he was to identify the checkbook and to identify the stolen objects, alleged stolen objects. At the time, the defense counsel saw Anita Isaacs in the hallway. She was not subpoenaed. He called her to the stand. He called her to the stand as his witness, subject to direct examination. There were three or four leading questions, not objected to by the city prosecutor in that jurisdiction. The witness testified adversely. The Court of Appeals below stated that you can infer from her actions and her credibility that she was closely linked to the defendant. William H. Rehnquist: That's pretty much of a tactical judgment, isn't it, on the part of a defense lawyer at a preliminary hearing, whether you call any witness or not, and if you call anyone, how much you ask him? Marvin R. Plasco: Yes, Mr. Justice Rehnquist, that is correct. Whether or not I would have called this witness or not is really not at issue. He did call this issue on direct. But it certainly was not a cross-examination -- William H. Rehnquist: Well, you say it's not cross-examination, but when he saw she was beginning to crawfish on him, so to speak, he began asking her adverse questions. Marvin R. Plasco: Well, he asked her adverse questions right from the start -- I shouldn't say adverse he asked her leading questions right from the start. William H. Rehnquist: Yes, and when the leads weren't followed, he began asking really genuinely hostile questions, the way you would on cross-examination? Marvin R. Plasco: I would respectfully disagree. Reading the transcript, I don't think anything was more difficult than it would take somebody to answer in 30 seconds, or so. I don't think it was a trial type of cross-examination. William H. Rehnquist: Well, I don't mean an extended thing. But it was not the kind of questions that you would ask of your own witness whom you were assured was going to answer the questions the way you thought the person was. Marvin R. Plasco: I can assume not that's correct. But again, I don't believe it was an extensive cross-examination. At any event, the defendant-petitioner was bound over to a grand jury, subsequently indicted. The matter came up for trial. I was appointed his defense counsel approximately in February of '76, a little bit over a year later. The matter was set for jury trial March of '76 -- I don't have the date in front of me March 4th, I think, 1976. And it went to trial. And the trial, in -- after the witness for the state, Mrs. Isaacs, testified, I as defense counsel requested a voir dire of Mrs. Isaacs to determine unavailability. There is nothing in the record to show unavailability up until the point that I as defense counsel requested it. After Mrs. Isaacs testified, and then -- the defendant testified -- when they rested, the defendant testified, the State of Ohio as rebuttal brought in the transcript of Anita Isaacs. The trial court said that -- over my objection Sixth Amendment objections -- that she was unavailable, and allowed the transcript in pursuant to 2945.49 of the Ohio Revised Code, prior recorded testimony under such oath regarding preliminary hearings. The defendant was convicted. The matter went to the Court of Appeals, where it was reversed and remanded. The court adopted the Honorable Justice Marshall's opinion in Barber v. Page at length, and said that the prosecuting attorney's office did not make a good faith effort to locate her. In fact, there were some interesting issues that were not brought out. According to counsel herein, they knew of her unavailability in November of '75. Yet the record -- and it's unobjected to, and as a matter of fact, the Supreme Court says it's allowed to issue -- William H. Rehnquist: But you didn't -- you had a clear holding from the Ohio Court of Appeals that the showing of unavailability was insufficient. And yet you didn't cross-petition from the Supreme Court of Ohio's judgment on that. Marvin R. Plasco: No, sir, I did not. I had raised the constitutionality of the statute in the Court of Appeals, and when i was successful, I dropped the statute -- constitutionality question, and just went upon the issue of Barber v. Page. William H. Rehnquist: So you didn't even argue to the Ohio Court of Appeals on the unavailability question? Marvin R. Plasco: Yes, I did, sir. William H. Rehnquist: But you don't -- you didn't petition for certiorari here? Marvin R. Plasco: That's correct, I did not. Byron R. White: Well, aren't you just defending the judgment? Marvin R. Plasco: Yes, but I would -- if I had it to do over again, I certainly would raise the issue. Byron R. White: Certainly the Ohio courts all the way along have considered the issue, have they not? Marvin R. Plasco: Yes. I have won in two straight courts on this issue. The unavailability issue is our second point which we're going to come to later. We believe that there was not a good faith effort to locate her. Mere absence from the jurisdiction does not make her unavailable. The Mancusi holding -- Warren E. Burger: What do you have to say about the Ohio Supreme Court's statement in the opinion from the facts which you have recited and which the judge digested, that the trial judge could reasonably infer that Anita had left San Francisco, and that it would have been fruitless for the prosecutor to contact the San Francisco social worker in order to locate her? Therefore, the trial judge could properly hold that the witness was unavailable. Marvin R. Plasco: Mr. Chief Justice Burger, I disagree with the late Chief Justice O'Neill in that holding. Warren E. Burger: Yes, I know you disagree with it. But what more do you have to say about it than that you disagree with it? Marvin R. Plasco: The Court of Appeals -- the Court of Appeals said there were about five different areas in which this could have -- in which they could have -- in which they could have done more investigation, or done things in and they did nothing, the prosecutors' office. In fact, the Court of Appeals' decision, no matter what they said, they did nothing, absolutely nothing. And they acknowledged that. They could have contacted the social worker. They could have -- Warren E. Burger: Here's -- this holding of the Ohio Supreme Court tells us, does it not, the statute is constitutional, in one sense, does it not? Marvin R. Plasco: Well, the area -- the issue was not addressed in my brief in the Ohio Supreme Court it was only addressed in the Court of Appeals. And after being successful, I dropped the issue of 2945.49 being unconstitutional. I don't think the issue -- Warren E. Burger: Well then are we not confronted with a statute held constitutional by the highest court of the state which had authority to pass on it, and a further factual determination that it would have been fruitless for them to do any of the things which you now complain they did not do? Marvin R. Plasco: We are here before the Court with a statute which must be presumed to be constitutional, yes, although I personally have other feelings. This is not an issue is not an issue at hand I acknowledge that, because I did not raise it. The factual determination at the Court of Appeals and the Ohio Supreme Court were different. I will argue in a few minutes -- maybe I should argue it now -- that regardless of whether she was available or not, because of the indicia of reliability, the Sixth Amendment is such that any recorded testimony under oath should not be admissible. I don't -- but our a second argument, Barber v. Page, is that they didn't make the good faith effort to locate her. In the -- they didn't do anything, actually. And if they claimed they had notice in November of '75 that she was unavailable, when, then, did they issue five subpoenas, the last of which was in February of '76? There's some confusion there. Warren E. Burger: Well, perhaps to anticipate the argument that you're now making that they didn't do anything. Marvin R. Plasco: Well, the subpoenas indicate, according to the record, that they were served upon her. To me, they had a transcript in hand, and why bother doing anything more, since they had the transcript in hand? And just use the recorded transcript to convict the defendant. I think that was the approach they took. Potter Stewart: Do they still have the "syllabus rule" in Ohio? Marvin R. Plasco: I'm sorry, sir, syllabus rule? Potter Stewart: Yes. Marvin R. Plasco: I don't know. Potter Stewart: If they do, then the opinion of Chief Justice O'Neill is just a little essay, and the law of the case is in this one paragraph syllabus. Marvin R. Plasco: Oh, yes, yes, we would -- Potter Stewart: You still have that rule? Marvin R. Plasco: Yes, I do believe we have it, now that I think about it. Our main premise is that petitioner failed to show that Anita Isaacs, the witness herein, was unavailable and -- excuse me, strike that. Let me go to the second argument. The preliminary hearing testimony of Anita Isaacs lacked the indicia of reliability necessary for admission as an exception to the confrontation clause. To put it on a more national frame, it's our position that where a witness testifies at a preliminary hearing, or any prior recorded matter, be it an examining trial like in Texas, like a magistrate's court in some other jurisdictions, or a preliminary hearing in Ohio, the Sixth Amendment to the U.S. Constitution, the confrontation clause, specifically precludes the use of such recorded testimony, notwithstanding 2945.49, if the witness is not cross-examined, and even if there is cross-examination, if the cross-examination is brief and ineffective, therefore lacking the indicia of reliability. It's our position, therefore, that even if this Court, this Honorable Court, determines that she was unavailable, since it was direct examination, since it was not cross-examination, since the preliminary hearing lacked the indicia of reliability as brought out in Dutton v. Evans, the preliminary hearings testimony, the recorded testimony, should not have been admitted in the court in the case at bar below. We cite to the Court a number of cases. The Ohio Supreme Court in the Roberts case below talked about -- that the issues must -- at the preliminary hearing-must be similar to the issues at the trial court they use the words "similar enough." And we argue that a preliminary hearing is a probable cause hearing. They believe a crime has been committed, and that a defendant has committed it. While a trial is certainly proof beyond a reasonable doubt. As a trial attorney, the burdens are so different. One is a perfunctory type of matter which lasts only a few minutes. I would respectfully disagree with counsel that the constitutional rights are not the same. Warren E. Burger: Does this record show how long this preliminary hearing -- Marvin R. Plasco: Well, I don't really know, timewise, but I would gather it was less than an hour. Warren E. Burger: Well, that's more than a few minutes, isn't it? Marvin R. Plasco: I'm talking about all the witnesses. We are fortunate in my county that they do have witness chairs where the witnesses take the stand and are asked questions under oath in a more formal standard. In some jurisdictions, such as Cogga County, Ohio, Cleveland area, there's no -- the witness are all brought up to the bench, and in the middle of direct examination, the municipal judge, says, bound over, and that's it. William H. Rehnquist: Mr. Plasco? Marvin R. Plasco: Yes, sir. William H. Rehnquist: On page 28 of your brief, you have a quotation from Green v. California, an opinion offered for the Court by Mr. Justice White, where you set forth four elements. There is no specific citation to California v. Green, to the -- no page citation to it. And the opinion has several concurrences. And I simply have not had time to check it through page by page. I simply don't find the specific language, one, two three, four, that you set out and underscore in your -- although you do say -- put an "emphasis supplied." But are you confident that's in the opinion? Marvin R. Plasco: Yes, sir. William H. Rehnquist: Okay. Potter Stewart: Well, on -- if we're talking about pages 24 and 25 of your belief, you say it's from Justice Brennan's dissenting opinion in Green. William H. Rehnquist: I was talking about page 28 of the brief. Potter Stewart: Oh, I beg your pardon. I beg your pardon. William J. Brennan, Jr.: Mr. Plasco? Marvin R. Plasco: Yes, Your Honor. William J. Brennan, Jr.: I take it that you feel Green was inapplicable here for one reason only, and that is that there was not the same counsel at the two -- Marvin R. Plasco: They certainly were not the same counsel. But in Green, if my memory serves me correctly the witness, whose name was Porter, was extensively cross-examined at the preliminary hearing, and actually, in fact, Porter was cross-examined at the trial. William J. Brennan, Jr.: Yes, but your quotation on page 18 doesn't emphasize that at all -- or page 28, it is. Marvin R. Plasco: 28? Byron R. White: It goes off on the opportunity aspect. Marvin R. Plasco: Yes. The Court in Green -- Byron R. White: Who was the defense counsel at the preliminary hearing? Marvin R. Plasco: His name was Richard Swain. Byron R. White: Was he from your office? Marvin R. Plasco: No, no. He was a then-private attorney. Byron R. White: Was he retained? Marvin R. Plasco: He was appointed. Byron R. White: Appointed? Marvin R. Plasco: Yes. And then I was subsequently appointed as a private attorney. And since that time I became head of the public defender's office. He is now a judge in the area. And I certainly don't claim that there was any ineffectual counsel issue here. [Laughter.] The answer to the question on Green, Green -- Harry A. Blackmun: If the first counsel had been someone else in your office, would Green fit this case like a glove? Marvin R. Plasco: Not like a glove, sir, because again the indicia of reliability, there was extensive cross-examination of the witness. And there was not extensive cross-examination -- in fact, we say there's no cross-examination of Anita Isaacs in the case at bar. Harry A. Blackmun: But if your quotation on page 28 is a correct one, there is no reliance there that I see on the extensiveness of the cross-examination. Marvin R. Plasco: In that part of it, yes, sir, that's correct. They -- the court said -- I think it was a chart somewhere in the case where it gave the comparisons on some things. And it talked about the same counsel representing both persons -- both defendants at the preliminary hearing and at the trial. And we don't have that here. I was using that for that one purpose only. Harry A. Blackmun: You don't think that the court was merely emphasizing, stressing, everything that was present to support its conclusion, and that it would reach the same conclusion whether or not number two were there? You don't think so? Marvin R. Plasco: No, I don't. Green argued substantial compliance. But I think Green definitely did not say that just because there's an opportunity to cross-examine, one has cross-examination. There are two separate and distinct animals. And I think that's -- throughout all our history, all the cases that we've brought before this Court, the Reynolds, Mattox, Motes, Pointer -- which is a right of counsel case, Barber, Green, Dutton, Mancusi, the facts are such, where there's either a separate trial, and therefore there's cross-examination at an earlier trial, or there's cross-examination at the preliminary hearing. In the case at bar, we do not have any cross-examination at the preliminary hearing, and therefore, there's no indicia of reliability. Now, we say that -- as counsel said -- that confrontation is basically a trial right, as cited in, I believe, Barber v. Page, '68, that confrontation begins at the time of cross-examination. The Roberts decision below, Chief Justice -- the late Chief Justice O'Neill stated that -- in quoting Widmore on evidence -- that confrontation and cross-examination are the same. We think they can be the same, not always being the same. If counsel does not do an adequate job at a preliminary hearing on cross-examination, there is no indicia of reliability Therefore, the recorded testimony should not be admissible in the later jury trial before the trial court. We think the holdings of the different courts are on all fours on these issues. The Pointer case talks about complete and adequate opportunity to cross-examine. The Barber case, of course, good faith effort. The California case was substantial compliance. In not one of these cases was there a thing where the defense attorney waive cross-examination at a prelim, and then the prior recorded testimony was admissible. If we go back to history, if we go back to Mattox, Mattox v. U.S., I think 1895, an Indian territory case on a murder matter, there there was a prior trial. The witness -- witnesses, two witnesses, died. And the testimony was admitted for the second trial. The Court said, although the purpose of the confrontation clause is to protect ex parte affidavits or depositions, we allow it in out of necessity and occasion. I would summarize that as an interest-in-justice type of argument. We would say that where justice would not be met by now allowing it in, the Court would not take that position. I would differ with counsel in his arguments about Anita Isaacs being a crucial witness. She was a very crucial witness to the case, and therefore the Dutton of, you know, crucial and devastating witness -- there were 20 witnesses who testified in Dutton -- is not applicable. We strongly ask this Court to consider the fact that a preliminary hearing, a probable cause hearing, and a jury trial, are two different, if I may use the term, animals, that one purpose is just, I think as Justice Rehnquist said earlier, is just to determine probable cause. The strategy may be to use minimal cross-examination. Potter Stewart: How often is a preliminary hearing waived by the -- in your county? Marvin R. Plasco: In my office, never. I don't appreciate my staff attorneys waiving the preliminary hearings. But many times most court-appointed attorneys or retained attorneys will waive a preliminary hearing, since it's -- Potter Stewart: Yes. That was pretty much the practice in Hamilton County when I was there. Marvin R. Plasco: A lot of times it'll be done for information. They'll let you talk to the witnesses outside the courtroom that have been subpoenaed for the trial. John Paul Stevens: Suppose you don't waive, and you go, and the government puts on some--the state puts on some witnesses to show probable cause. Do you cross-examine? Marvin R. Plasco: Yes, sir, I do. John Paul Stevens: Always? Marvin R. Plasco: I've never waived cross-examination at a preliminary hearing. Potter Stewart: You don't, habitually, though, call witnesses of your own, do you? Marvin R. Plasco: No. I've never called witnesses of my own, except once in awhile I see a police officer outside -- Potter Stewart: -- that's a probable cause hearing. Marvin R. Plasco: Right. Unless I see a police officer outside the courtroom -- Potter Stewart: It's almost an ex parte -- well, it's a one-sided proposition, isn't it? Marvin R. Plasco: Yes, yes. If I see a police officer -- Byron R. White: Did you ever succeed in preventing a binding over because you cross-examined someone? Marvin R. Plasco: I'm sorry, sir. Byron R. White: I say, have you ever succeeded in avoiding a binding over by cross-examination at a preliminary hearing? Marvin R. Plasco: Yes. Byron R. White: You have? Marvin R. Plasco: Yes, I've been lucky a couple of times. Byron R. White: You certainly have been lucky. Marvin R. Plasco: It's not the usual rule. Byron R. White: It surely isn't. Marvin R. Plasco: Usually it's -- Byron R. White: In my state, as long as the witness testifies something that adds up to probable cause, the magistrate doesn't even weigh credibility. Marvin R. Plasco: I had one as an assistant prosecutor many years ago where they pointed out somebody in the back of the room and not the defendant at the trial table. So it can happen. But as a general rule, it's a perfunctory, pro forma type of matter. So that -- but I will call a witness if I see a police officer that the prosecuting attorney has not called, I will assume that he's not called this officer -- Byron R. White: Well, why don't you waive? So that -- at least you learn what you can learn, is that it? Marvin R. Plasco: I learn what I can learn. I use it as a discovery tool, which is the argument I made to the trial court, so I can get some information, since it's just a probable cause hearing. My third argument later will be, and I might as well make it now, my third argument is that if the Court adopts the argument of the petitioner, and allows -- and states a mere opportunity to cross-examine will be sufficient under the confrontation clause, it will force trial attorneys like myself to ask for continuances so we can investigate prior to having a preliminary hearing, to have lengthy cross-examinations, to bring in our own witnesses, because we want to make sure the record is well-protected. When the defendant was arrested on the 7th of January, and trial on the 10th of January, it's highly unlikely that his then appointed counsel even barely got to know him, or see him in the jail. William H. Rehnquist: Why would it require you to bring in your own witnesses? Marvin R. Plasco: Well, I might not bring in my own witnesses. William H. Rehnquist: I would think not. Marvin R. Plasco: Because then there testimony -- well, it depends. If I think there's a witness that might be favorable, and the State has not had a chance to prepare these witnesses for the trial, even though they're state's witnesses, I may call them to the stand and put their testimony under oath, so later on, months later, they cannot take a different approach. William H. Rehnquist: Well, you're talking about a very, very rare type of case where it's not your witness that you're calling -- Marvin R. Plasco: No, I would never -- William H. Rehnquist: -- but a state's witness that the state is not calling. Marvin R. Plasco: Correct, Mr. Justice -- Potter Stewart: Why would that be so wrong, anyway, as a matter of tactics? Marvin R. Plasco: Because you're putting your own witness under oath at a prior recorded testimony, and they cannot change -- not that we would have them change their testimony don't get me wrong. I'm certainly not insinuating that. It's just that at that point, we don't really have time to investigate to determine the full matter. Initially, a lot of cases will look very good to the defense. And then as we get into them more and more, it turns out that may have seven or eight different witnesses that point the guy out as the one at the scene of the crime. So our second argument was that this would create havoc in the municipal courts. It would require, maybe, half-day, all day preliminary hearings or if the court only adopted his rule in part, it might force us to waive cross-examination on some cases rather than dare even cross-examine for fear of having the compliance with the Sixth Amendment. But most likely it would cause extensive prelims. It would cause continuances so we can do investigations. And the municipal courts are not geared for that. Nor would the judges in the municipal court tolerate that. I think the third argument that we have, which was addressed briefly, was the unavailability. I'm not going to address that. I'm just going to say that under Barber v. Page, it is our believe that in Justice Marshall there was not a good faith effort by the prosecuting attorney to show that this witness was unavailable, and they attempted to locate her. They had the preliminary hearing transcript, and they used the Mancusi philosophy, "Just because we have a prelim transcript, let's bring it into evidence." Warren E. Burger: Under your Ohio syllabus rule that Mr. Justice Stewart, I think, referred to, what are we to do with respect to the opinion written by the -- on behalf of the court? Just ignore it as though it had never been written? Marvin R. Plasco: Well, I believe this Court has the authority to review the matters and make its own determination. It's not bound by the -- Warren E. Burger: What's the status of the statement in the opinion that it would have been a waste of time for the state to try to pursue this witness, to find this witness? Marvin R. Plasco: Well, the court below them said otherwise. And so we have two -- Warren E. Burger: Well, the last word we have is from the Supreme Court of Ohio. If that is the last word under the syllabus rule? Marvin R. Plasco: I don't know, sir, I -- Warren E. Burger: Or is it just a law review article, like a law review article? Marvin R. Plasco: Well, I would give it more weight than a law review article. But I think this Honorable Court, the Court of last resort, has the authority to look into the matter and to make its own determination. But even if she is unavailable, which we differ on, and we did not cross-petition on it, and I acknowledge that, we're arguing strenuously that the Sixth Amendment still precludes prior recorded testimony where there's no indicia of reliability, hence, no cross-examination, or where cross-examination is ineffectual. The Ohio Supreme Court, after deciding Roberts, decided State v. Smith, cited in one of the amicus briefs and I think in petitioner's brief. There, they felt in a rape case that the cross-examination was so ineffectual that there was no indicia of reliability. They didn't use the words, "indicia of reliability," but again, there was nothing there for them to introduce it at trial. Therefore, it would be a Sixth Amendment violation. We would ask this Honorable Court to affirm the decisions of both the Eleventh appellate district and the Ohio Supreme Court. Byron R. White: Just very briefly. I had the same difficulty Justice Rehnquist did with the quote on page 28 of your brief, and I wonder -- you won't be able to take care of it now, but perhaps you could write a letter to the Court and tell us where it came from. I'm quite sure it didn't come from the -- William H. Rehnquist: That's exactly what I was going to ask you, too. Byron R. White: I would be happy to. Again, we would ask this Honorable Court to affirm the decisions of the courts below to find that the witness -- even if finding the witness unavailable, the differences between preliminary hearings and trials are so different that without cross-examination there cannot be any indicia of reliability. And even with cross-examination, there still may not be indicia of reliability. And therefore, there may be a violation of the Sixth Amendment of the U.S. Constitution. There being no other questions, thank You. Warren E. Burger: Thank you, gentlemen -- I guess you have a couple of minutes, don't you? Excuse me, Mr. Shoop. Yes, you have three minutes. John E. Shoop: Thank you, Mr. Justice -- Mr. Chief Justice. And may it please the Court. Just a couple of points Ohio is syllabus rule state, in case there's any question about that. A fact in the forgery that defense counsel attempted to -- Potter Stewart: What do you take it that the opinion of Chief Justice O'Neill is? Is that the opinion of the Court? John E. Shoop: The headnote is -- Potter Stewart: The headnote, the syllabus. John E. Shoop: Correct. Warren E. Burger: The one paragraph? John E. Shoop: That's it. Potter Stewart: That's it. That's what my father concluded after 12 years sitting there. John E. Shoop: The forgery in this case, it might be critical to listen to the facts of the forgery. This forgery is of a check. There were credit cards involved, but we're not talking about forgery of a credit card, or if the defendant is going to call this absent witness to say that, well, she gave him the checks, or whatever. The check was not signed prior to the time. There was testimony in the trial transcript -- I believe the Court has that transcript -- where the clerk at the store the defendant actually signing the check. And it was from that -- at that point, then, that the complex where the store existed the -- had been alerted to the fact that someone -- this defendant had been in a prior store trying to use these credit cards. They were then searching through the mall to attempt to locate this individual. Five subpoenas were issued to the residence. We were hoping that if this absent witness return, or come anyplace within the state, it would be back to the parents' home, yes. We did continue to serve subpoenas at the residence. And they were all residence service. There was no personal service that we were able to obtain. John Paul Stevens: Could you have used this testimony in your case in chief? John E. Shoop: Which testimony? About the residence service? John Paul Stevens: No, no, about the prior -- did you use this in your case in chief? I thought you used it in rebuttal, didn't you? John E. Shoop: No, we didn't bring this testimony in. John Paul Stevens: No, the -- John E. Shoop: The unavailable witness? We used that in rebuttal. It was not used in our case in chief. John Paul Stevens: Well, could you have? I suppose you -- on your presentation, you could. John E. Shoop: We probably could have. It would depend on the essence of whether or not the defendant is going to take the stand and say that "She is the cause of this." Until that point -- John Paul Stevens: It may not have been relevant at all? John E. Shoop: It may not have been relevant. As to the argument of lengthy preliminary hearings, causing court congestion, we've heard a number of arguments from defense counsel about timely trial. And of course the state of Ohio has rules about time to trial, for speedy trial, and they're statutory. The rules require that a criminal defendant, once he has been arrested, be brought to trial with 270 days. If he's incarcerated on that charge without bond, he must be brought to trial within 90 days. These stipulations and charges that this would cause court congestion were raised, of course, when those statutes came into effect. To say that to adopt our position would cause lengthy cross-examinations I feel is unjustified and should not be sustained by this Court. Thank you. Warren E. Burger: Thank you, gentlemen. The case is submitted.

William H. Rehnquist: We will hear arguments next in Cecil Hicks, District Attorney for Orange County, California, acting on behalf of Alta Sue Feiock versus Phillip William Feiock. Mr. Capizzi, you may proceed whenever you are ready. Michael R. Capizzi: Thank you. Mr. Chief Justice, honorable associate Justices, if it may please the Court, this is a case that will determine whether Mr. Feiock and the Feiocks of this country may sit on their hands and defy with impunity valid court orders to provide support for their minor children. This case originated in the State of Ohio when Alta Sue Feiock, the mother of respondent's three children, petitioned the Ohio courts for support under the Uniform Reciprocal Enforcement of Support Act, URESA. The petition was forwarded to California, where the Orange County District Attorney's office in turn filed a petition with the California Superior Court seeking an order for support. Following a hearing an order for support was entered directing payment of $50 per month per child, and that was in fact a reduction from the original $75 per month per child which had been ordered at the time of the divorce some eight years earlier. The Orange County District Attorney's office was acting in this case not as the public prosecutor, but as the attorney for Alta Sue Feiock for the sole purpose of gaining the support due her and her children. This was not a welfare case. There was not an effort to recoup welfare moneys. There was, however, an interest in assuring that Mrs. Feiock would not be a welfare recipient, but more importantly, this case represents a strong and fundamental interest that the state has in assuring minor children that they shall have the support that is due them. The children have always had a special place in our system, and there is no reason why they should not in matters of child support. After the order was entered, over the next 12 months Mr. Feiock the respondent, paid three months, but for the other nine months he sent not one thin dime. He was cited for contempt, and in the concept hearing the petitioner herein relied on California Code of Civil Procedure 1209.5. With somewhere in the neighborhood of 35,000 family support matters in the active cases of the Orange County District Attorney's office, it is essential that reliance can be made on a statute such as 1209.5. William H. Rehnquist: What is the present population of Orange County? Do you know, Mr. Capizzi? Michael R. Capizzi: Something in excess of two million. William H. Rehnquist: Two million. Michael R. Capizzi: Yes. Of course, that is the 35,000 cases are all types, the litigation, the enforcing reciprocal cases from other states, those that have enforcement orders, and the criminal cases that are filed in that connection. There just aren't sufficient resources for even a public agency to pursue cases such as this without reliance on the statute involved in this case, and certainly if a public agency doesn't have the resources, the private individual who often times seeks to assert their own support, enforcement of their own support orders individually couldn't even begin to pursue those on their own. Sandra Day O'Connor: Well, Mr. Capizzi, the California Court of Appeals held that the California statutes make this contempt proceeding criminal in nature. Michael R. Capizzi: Yes, Justice O'Connor. Sandra Day O'Connor: Now, I guess California is entitled to determine that for itself as a matter of state law, isn't it? Michael R. Capizzi: Well, it can place whatever label it chooses on a case, and this case the court below did term the case criminal. I would submit that the-- Sandra Day O'Connor: So is it a matter, is it a question of federal law for purposes of answering whether the federal constitution is violated? Michael R. Capizzi: --I think that unquestionably it is and be that as it may I would submit that the court below was wrong in terming this case criminal even under California law. Sandra Day O'Connor: Well, but you don't really want us to get in there, do you, and say that the California Court of Appeals was wrong as a matter of California law? Are we likely to do that, and can you give me examples of where we have done that? Michael R. Capizzi: Well, I think the Court has always looked to the highest court... this Court has looked to the highest court of the state in determining what the state law is. Sandra Day O'Connor: Well, why would we want to do that if it is a question of federal law for purposes of the federal constitutional question? You spent a lot of time in your brief arguing this, and I had a hard time understanding whether you seriously thought we were going to overturn the California court on a question of what the California law is. Michael R. Capizzi: No, we merely meant to set the record straight, and point out that the California Supreme Court has held repeatedly that there are still two types of contempt in California, civil and criminal, but that is absolutely correct. As far as the constitutional analysis is concerned, it doesn't matter what label California puts on it. Otherwise a state could deprive this Court of determining in what instances the constitutional provisions of the Fourteenth Amendment will or will not apply. Now, I suppose we could decide that as a matter of federal law for federal purposes this has the characteristics of a civil proceeding, but that wouldn't mean that California when it went back couldn't treat it as something else for its purposes and under the California constitution. That's true. California could do that. But they haven't done that in this case. The courts have repeatedly said that there's a distinction between civil and criminal contempt, and the California Supreme Court repeatedly over the years has said that civil is to protect the rights of litigants and criminal is to vindicate the dignity or authority of the court, and-- Antonin Scalia: But it is up to California to decide what it is coming with a... I mean, that is a purposive test, and it is California's purpose. If California says that it is criminal, who are we to say that it isn't? Michael R. Capizzi: --California has not said that it is criminal, Justice Scalia. Antonin Scalia: You are arguing that it doesn't matter what California said. You are arguing that it doesn't matter, and I am saying if it is a purposive test you are urging upon us, it does matter. What is California's purpose? If California's purpose is criminal, then that is the end of the matter as far as that issue is concerned. I agree with you. I think that California has not said that. Michael R. Capizzi: That's correct. Antonin Scalia: It has applied certain protections that are normally applicable in a criminal context. But they can also do that if they want. Michael R. Capizzi: Yes, Justice Blackmun, that is correct. They have continued to draw the distinction between civil and criminal contempt. One is punitive, criminal, coercive, is civil. They have extended the procedural safeguards otherwise applicable in a criminal case to the civil contempt proceeding. Antonin Scalia: That is a different issue. You are arguing what California has done. I am asking why it should be true, the other point that you say, that it doesn't matter what California has done, that even if California has called it criminal, you urge upon us that we are not bound to accept that, and I don't see how that follows at al. It seems to me we are bound to accept it. Michael R. Capizzi: If California should suggest, Justice Scalia, that in a civil case where there are punitive damages those are penal in nature, as they have said in contempt proceedings, the potential of a jail sentence is penal, and because punitive damages are potentially penal, we are going to extend the procedural safeguards of a criminal case, not because they are constitutionally required, but because as a state we are going to extend those rights in the civil case. Thus we would has we have in the contempt setting, have a description of these civil cases as quasicriminal or criminal in nature because we have extended procedural safeguards otherwise available in criminal cases, and then respondent would come before you and say, because these are criminal in nature we have extended the safeguards of a criminal case, the libel case in which we are seeking punitive damages, that, too, is criminal. The tort case where we are seeking punitive damages, that, too, is criminal. The bad faith insurance case where we are seeking punitive damages, that, too, is criminal, and that would deprive this Court of determining when and in what setting the constitutional provisions of the due process clause are to apply, and I would submit that the appropriate test is to analyze what the hearing is substantively. William H. Rehnquist: Mr. Capizzi, I am looking at page A6 of the petition for writ of certiorari where you have the opinion of the Court of Appeal, and I am looking at the second full paragraph on the page, the second sentence, where its says, "Our Supreme Court recently discussed the problem raised by the use of presumptions in criminal cases in people against Roder. " Now, does the Court of Appeal opinion have any more discussion than that of why it considered this a criminal proceeding rather than a civil proceeding? Michael R. Capizzi: No. I would submit that it is lacking in analysis as to why it considered it a criminal proceeding. William H. Rehnquist: Have there been other cases from the Supreme Court of California that have said this kind of proceeding is a criminal rather than a civil proceeding? Michael R. Capizzi: No. In fact, the Roder case did not say a contempt proceeding is a criminal proceeding. William H. Rehnquist: Roder wasn't a contempt case, was it? Michael R. Capizzi: No, it was not a contempt. It involved the constitutionality of a state statute involving a presumption and prima facie case. John Paul Stevens: What significance do you give to the sentence on page A8, contempt is quasi-criminal and requires proof beyond a reasonable doubt? Michael R. Capizzi: That is what the California courts have required for in excess of 100 years. John Paul Stevens: In civil contempt proceedings as well as criminal? Michael R. Capizzi: In civil as well as criminal, and that is why civil contempt proceedings because they have the potential for a jail sentence if the coercive order is violated, they have been given in civil contempt proceedings many of the procedural safeguards that would otherwise be available to a criminal defendant, and as a result, over the 100 years or so, the civil contempt proceedings have been referred to as quasi-criminal and criminal in nature, but that doesn't make them criminal substantively, and as this Court has said in Shilitani versus United States, that we are going to look at the substance, not the procedure by which the order for contempt came about. Shillitani was a case under Rule 42, the Rules of Criminal Procedure. As Justice Harland pointed out in footnote 3 in a dissenting opinion, but it called attention to the record below, the judgment and commitment was for guilty of criminal contempt but this Court went beyond the procedural aspects of it and looked at the matter substantively, and because the order of two years in jail or until purging oneself of contempt by testifying before the grand Jury was the order, it was concluded that it was coercive and not subject to the procedural aspects of a true criminal case. Antonin Scalia: What was the procedure that was involved there that we said was not necessary? Michael R. Capizzi: In Shillitani? Antonin Scalia: Yes. Michael R. Capizzi: It was the jury trial-- Antonin Scalia: Now, you are urging here that what is not necessary is not only... not only the burden of persuasion... not only the burden of initiation of the evidence, production being placed on the plaintiff, but also the burden of persuasion. So if I understand your case correctly, it is that although this individual should not be liable for the payments unless he can afford them, although that is part of the case, if the court can't make up its mind, if it is unclear, I don't... if the court finally concludes on the basis of all the evidence, I cant really tell whether he can afford these payments or not, the court will then send him to jail. That is what you are urging. Michael R. Capizzi: --No, we are not, Justice Scalia. We are urging that since this is a civil case, the determination of whether the statute meets the due process clause of the Fourteenth Amendment should be analyzed in terms of a civil rule, and in a civil context. Byron R. White: The Court of Appeals certainly ruled clearly enough that the burden of proving the ability to pay is on the prosecution. Michael R. Capizzi: The Court expressed that, and again-- Byron R. White: As a matter of California law. Michael R. Capizzi: --But it misstated California law, Justice White. Byron R. White: Well, I don't know how you can convince us of that, but I thought that... I didn't read your brief and disagree especially with that. I just thought that you thought that an inference of the ability to pay could be drawn from that. Michael R. Capizzi: The statute points out that if there is an order-- Byron R. White: Right. Michael R. Capizzi: --there is knowledge of the order-- Byron R. White: Yes. Michael R. Capizzi: --and there is a violation, it hasn't been paid, that that is prima facie evidence of contempt, and even if we are to-- Byron R. White: You are just saying that the statute says that the prosecution's burden is satisfied when you prove the things that you just mentioned. Michael R. Capizzi: --That is correct, and that is consistent with an early California Supreme Court case, In re McCarty, which likewise said those are the three elements of contempt. In that case it was an alimony case, but there should be no difference for that analysis between the alimony case and the child support case, and that was the rule in California for a number of years. Byron R. White: Did your brief argue that this statute shifted the burden of persuasion on ability? I thought you just said it shifted the burden of production. Michael R. Capizzi: The court below-- Byron R. White: What about your brief? Michael R. Capizzi: --Our brief expresses that it shifts to the respondent the burden of production. Byron R. White: But the burden of proving ability rests on the... remains on the prosecution. Michael R. Capizzi: No, the... again-- Byron R. White: Well, you can't do it both ways. Michael R. Capizzi: --the California Supreme Court has repeatedly said that inability to pay is an affirmative defense. Byron R. White: Yes. Michael R. Capizzi: And as an affirmative defense the respondent has the burden of producing evidence. Byron R. White: Well, we have got-- --You are talking about proving, not producing evidence. You keep... do you say that the burden of proving it is also on the defendant? You do say that in your brief, don't you? You say, as an affirmative defense he not only has to go forward, but he has to prove that he can't pay. Yes or no? Michael R. Capizzi: No. Antonin Scalia: It seems to me that could take-- Michael R. Capizzi: No. Antonin Scalia: --You don't say that. Michael R. Capizzi: Justice Scalia, what we-- Sandra Day O'Connor: But that is what the Court of Appeals said, isn't it? Michael R. Capizzi: --The Court of Appeals said-- Sandra Day O'Connor: The Court of Appeals said that California law puts the burden of persuasion on the respondent. I understood your brief to say that is wrong as a matter of California law. Michael R. Capizzi: --That's correct, Justice O'Connor. Sandra Day O'Connor: Again, you don't want us to decide that, do you? Michael R. Capizzi: I don't think it is necessary. It is a civil case, and as a civil case either a burden of production or a burden of proof is appropriate, and the statute places this case in much the same position if not identical position as the circumstances this Court addressed in Rylander versus United States. The statute-- Sandra Day O'Connor: Well, Rylander involved a situation where only the burden of production shifted. Michael R. Capizzi: --That's correct, Justice O'Connor. Harry A. Blackmun: Well, do you lose this case if the burden of persuasion is also involved and placed on the defendant? Michael R. Capizzi: No, I don't believe we do. Harry A. Blackmun: I don't think you do, either. Michael R. Capizzi: It is a civil case, and regardless of whether it is the burden of persuasion or the burden of production, there is a rational connection between the proven fact and the presumed fact. I would submit, however, assuming just for the sake of argument that this were a criminal case, that the statute would meet the heavier beyond a reasonable doubt standard that is required in the criminal case. It is... if we have an individual who is ordered to pay support, I think it is... a reasonable person would seek to modify that order if he could no longer make the support payments. His failure to seek modification causes the missed payments to accrue and build in arrearage, which some day he is going to have to pay, as he was ordered to pay even in this case, because even though he was found not guilty on some of the months of contempt, at the time of the hearing he was still found able to pay in installments and was ordered to make payments even for those months for which he could not have been held in contempt because of the coercive nature of it and the fact that the missed support payments accrue. Now, a reasonable person would seek to modify that order if he truly had no ability to pay. And his failure to seek modification is a tacit admission that the order remains valid and reliable. And that is especially true in California, having enacted a code section, Civil Code 4700.1, that makes it extremely easy for an individual to modify a support order. It is almost as though it is a small claims action, and attorneys are not required, and its express purpose is to make it easy to modify a support order. So given those factors, it seems to me a reasonable person would modify and an unmodified order supports the presumed fact beyond a reasonable doubt that the original order is still valid. Antonin Scalia: Mr. Capizzi, whether California decides to or not, and whether you argue it here or not, I had the impression... I don't know which of the briefs I got it from, that most states do place the burden on the defendant, not just for production but of persuasion. Is that-- Michael R. Capizzi: That's correct. Antonin Scalia: --That is correct. Michael R. Capizzi: It is a burden of producing... or burden of proof in most states. I would submit that with respect to whether in this case it was a burden of production or a burden of proof, we should look to the cases in California which have said that it was a burden of production. We should look to the treatises in California which say it is a burden of production, 1209.5. We should look to Penal Code section 270, the criminal nonsupport section, and the California Supreme Court, People versus Sorenson, interpreting a presumption in that criminal section very comparable to the presumption here as being one involving the burden of producing evidence. Now, I submit that we should examine those even though they were ignored by the Court of Appeal below, and the reason we should examine those is because even though the court below ignored them, the trial judge didn't. And just as in Ulster versus Allen, in Footnote 16, this Court said we should look to the jury instructions and how it was treated at the trial level. The presumption in this case was treated at the trial level by the trial judge as one affecting the burden of proof. All of the other cases, the treatises were available to him. He expressed an awareness of the long-standing law. And he expressly stated on the record that he was treating it as affecting the burden of going forwards, which is another way of saying the burden of producing evidence. And it was based on the way it was treated by the trial court and the laws in California which treats a presumption affecting the burden of producing evidence almost the same way as this Court analyzed a permissive inference in Allen... in Ulster County versus Allen. The Evidence Code Section 604, which sets forth how that presumption affecting the burden of producing evidence is to be used is almost identical to the definition of a permissive inference in Ulster County versus Allen, and therefore even if we were to assume that it was a criminal case, I submit that it was treated by the trial court as a burden, as a presumption affecting the burden of producing evidence, and as such meets the due process requirements of the Fourteenth Amendment. We would submit that the order of the court below finding the statute unconstitutional was in error and-- John Paul Stevens: Let me ask you one final question. As I remember, and I may have this incorrectly in mind, but the trial judge here did conduct a hearing on the question of ability to pay. Michael R. Capizzi: --Yes. John Paul Stevens: And concluded that there was ability to pay with respect to at least a portion of the disputed period. Does his... do his remarks... it is not clear from the part that is quoted in your brief. Do his remarks indicate where he thought the burden of proof was, which way the preponderance of the evidence went? In other words, if he said in so many words, I find the evidence to convince me and it is not equally balanced, I am not relying on any presumptions, I find on the facts here that this man had an ability to pay, and I therefore hold him in contempt, it seems a little strange to be arguing about all this argument about presumptions. I mean, isn't that the end of the case? Michael R. Capizzi: He did, Justice Stevens, make a finding that there was ability to pay. After first relying on the presumption which the trial judge treated as one affecting the burden of producing evidence, and once the respondent then produced evidence under California law that showed the nonexistence of the presumed fact, then the court was required to treat the evidence without reference to the presumption, and based upon his analysis then of the evidence, including the testimony of the respondent, he found him guilty of the five counts of contempt and dismissed four of the counts. John Paul Stevens: Right. Michael R. Capizzi: And then made the findings that he had the ability to pay and entered the coercive order. John Paul Stevens: What I am really asking is whether in the actual decision of this case did the allocation of the burden of proof actually have any impact on the outcome. Michael R. Capizzi: Not the ultimate result, no. It assisted in travelling the path to reach that, but ultimately it was based upon the testimony of the defendant. We would submit the court below erred and the order finding the statute unconstitutional should be reversed, and with the Court's permission we would like to reserve the remainder of our time for rebuttal. William H. Rehnquist: Thank you, Mr. Capizzi. We will now hear from you, Mr. Schwartzberg. Richard Lynn Schwartzberg: Mr. Chief Justice and the associate Justices of the Supreme Court, and may it please the Court, the issue, contrary to a number of the amicus briefs that were filed in this case, I would suggest, is rather narrow, and I would suggest it has almost no national importance. What we are here to decide is the interpretation of a very specific California statute which affects a civil contempt in the criminal venue for only California makes that definition. What I would suggest, however, is that the significance of this debate concerns almost a century of California jurisprudence concerning civil contempt. What I would suggest to the Court is that there are a number of rigs which this Court in Boykin versus Alabama has applied to criminal cases, which, if this Court adopts the position of the petitioner, will eviscerate, will essentially vacate. Those rights are self-incrimination, both the right not to have to testify and the right not to be called as witnesses, the right to counsel in California, and I would suggest a right which is perhaps more fundamental than those rights in Boykin versus Alabama, that is the right to have proof beyond a reasonable doubt as to each and every element of the charge as contained in the case, this Court's case of In re Winship. I would suggest that whether 1209.5 violated the Fifth Amendment involves three questions. The first question is, does 1209, which is the general scheme for contempts in California, define a crime with the element of the ability to pay. Second, if it does, may this Court redefine that definition of a crime to suit the Court's federal interpretation of what a civil contempt is. And finally, does it offend the Fifth Amendment if it is a crime? I think that the answer to whether 1209 defines a crime in California is an unequivocal yes. In fact, all the Court needs to do is to turn to a case which was decided in the 1940s called Bennet versus Superior Court, and I would merely quote the first line of the third paragraph on Page 210, where the Court says, "Contempt of court is a specific criminal offense. " Now, they get that from McClatchie versus Superior Court, which is at 119 Cal. They get that from In Ex Parte Gould, which is at 99 Cal., both 1800s California Supreme Court cases. Now, one of the questions that the Court asked Mr. Capizzi was, why is it that the Court of Appeal dealt in sense with such short shrift with the question of whether it was criminal or not, and the answer is simple. They knew what it was. And there wasn't any need to have any particular extended analysis of that issue because every Court of Appeal knows what it is. Sandra Day O'Connor: Mr. Schwartzberg, it seems to me that what the California Court of Appeals did ultimately was to say that the California statute as applied here was invalid as a matter of federal constitutional law. Richard Lynn Schwartzberg: I would concede that, yes. Sandra Day O'Connor: So is it not also a question of federal law whether this statute is indeed civil in nature or criminal for purposes of answering the federal constitutional question? Richard Lynn Schwartzberg: No, Justice O'Connor, no more than-- Sandra Day O'Connor: No? I would have thought perhaps it was, that if we are going to say the federal Constitution strikes it down because it is criminal in nature, that it is a matter of federal law whether this thing is criminal in nature for federal purposes. Richard Lynn Schwartzberg: --Well, I think the answer to that is this. If, for whatever reason, the federal government had no murder statute, and then, in fact, let us assume that murder on the federal level was never a crime, but California chose to treat murder as a crime, a felony, and they had a statute that was similar to that in Martin versus Ohio, I don't think this Court would have any trouble striking that statute down, as violating the Fifth Amendment. Sandra Day O'Connor: Well, Mr. Schwartzberg, what about a case like Shillitani v. The United States which at least indicates that we are free to examine the purpose of the contempt proceeding and characterize it as civil in this instance because it was for the purpose of coercing the payment of the money. Richard Lynn Schwartzberg: I don't know how to reconcile that with California, and I think California would have trouble reconciling it with Shillitani. It is the same reason, I think, that the Supreme Court in Culver City tried to make it clear that California was not... I think the problem here is that the legislature used the label "civil". The fact is that the courts have been calling it a "crime". Not criminal in nature, not a criminal action, but a crime in California. Sandra Day O'Connor: Well, I think that is perfectly all right if California wants to do that. The problem is that we have a California court that has rested its holding on the Federal Constitution. Now, we can decide that issue, I suppose, and leave California free to call it whatever it wants and impose whatever requirements it wants as a matter of California law. Richard Lynn Schwartzberg: I think the difficulty with that is that we are putting the cart before the horse. I think that what the Court of Appeal said was that what we have here is a crime. A crime no different than any misdemeanor or felony in the State of California. And their conclusion was that once you had it as a crime, then the decision such as this Court's decision in Rylander do not have any effect. And then that, in essence, once you determine this is a criminal act, a crime punishable as a crime in California, that this Court's opinions then presuppose that various rights inure. And one of those rights is the Fifth Amendment. And what I would suggest to the Court-- Antonin Scalia: I assume that to some extent, the answer to Justice O'Connor's question must depend upon what the Federal test for criminality is. If the Federal test for criminality is purpose, if whether the purpose of the penalty is to coerce or to punish and if the State says: Our purpose in applying these penalties is to punish, it would be very hard for us to say, "No, you are wrong, California. " "Your purpose is not to punish. " California is certainly dispositive as to what its purpose is. So, it would depend on what test we are applying; wouldn't it? Richard Lynn Schwartzberg: --Not only that, but I would go one step further. And what I would suggest to the Court and I tried to present it in my brief, which is that California has a very unusual legislative scheme which is that we have 166, which is a specific penal statute governing contempt of court and it covers the same act, the same exact act that is prosecuted here. The difference between 1209 and criminal intent in 166 is that only the people in the State of California can bring a 166 action, but a civil litigant, in other words, a custodial parent, typically, the mother, can hire counsel and bring a civil contempt which is a criminal action. And for that reason, what I am suggesting is that the California Supreme Court in Culver City and going all the way back to Gould said there are... all these contempts are contained in different places in our legislative scheme, but they are all the same crime. They just carry different kinds of right. John Paul Stevens: May I pursue Justice O'Connor's inquiry with a hypothetical? Supposing a state differently from all other states passed a statute saying that the negligent operation of a motor vehicle shall be a crime. And it said, (1) you can go to jail, and all the rest of it, but also have a separate proceeding that the person thereby injured by proof, just by a preponderance of the evidence that he was hurt by the negligent operation, after he proves a crime by a preponderance of the evidence, he can get damages. Would that comport with the Fifth Amendment? They call it a crime and they say the private litigant gets a remedy on the basis of it by a preponderance of the evidence. Does the fact they call it a crime mean that Winship applies? Richard Lynn Schwartzberg: Well, I am having a little bit of trouble with the analogy because I am not entirely certain as to whether the courts are determining that the civil cause of action is itself a crime. John Paul Stevens: Yes, the statute says: Negligent operation of the vehicle is a crime. And it may be proved. The crime may be proved in a civil proceeding by a preponderance of the evidence. And, if you get a jury, you instruct them that having done this is a crime and the consequence of the crime is you have got to pay damages to the plaintiff. The fact that they call it a crime, in your view, I take it, would require all these other protections. Richard Lynn Schwartzberg: I would be less than frank if I told the Court I really can answer that question. I can't because I... in essence, what you are saying is that a private prosecutor can come in and obtain damages for a crime. John Paul Stevens: No. What I am saying is what a state calls the proceeding may not be binding on us in interpreting the Federal Constitution. That's what I am saying. Richard Lynn Schwartzberg: I hope that this does not devolve into a semantics debate because I don't think that when we say we are calling it a crime that that is all we are doing and that it is not a crime in fact. John Paul Stevens: But do you say, though, that the California rules applicable to this kind of proceeding should be judged by the same standards that apply to similar rules that produce similar consequences in other states except they don't call it a crime. Richard Lynn Schwartzberg: I don't think that they have anything to do with each other. I just don't. John Paul Stevens: So, our case pertains only to California? Richard Lynn Schwartzberg: Yes. And that's why I say I think that contrary to some of the amicus who are concerned about the national ramifications of this, I don't think they have any. William H. Rehnquist: Well, what if California that has a statute that says, for negligently driving while drunk, you can have your license revoked, your motor vehicle operator's permit revoked, and the California courts say, "Well, gee, this is pretty tough on the motorist. " "We think it is a criminal proceeding. " And then we talk about presumptions and what the burden of proof. Now, can this Court if a California court says one of those procedural aspects is invalid under Federal Constitution, can we not reexamine to see whether or not this meets the definition of a "crime" for some of our cases? Richard Lynn Schwartzberg: Well, I think the answer to that is that if the California court's interpretation is unambiguous that notwithstanding the fact that this may only involve an administrative penalty, whether it is loss of license, loss of privilege, loss of money or jail, I think that if the California court says that in California, that act is a crime, then I think this court, not bound to accept that determination, in effect, I think this Court must apply those Federal constitutional guarantees which apply to a criminal act within the context of this Court's decisions. So, I would concede, for instance, that this Court does not require counsel in every criminal proceeding, but that does not mean that in those criminal proceedings where the Court does require counsel. In other words, where the penalty is not de minimis that counsel has to be applied in that proceeding. And what I would suggest, if we look at this case backwards, if the Court notes that California courts have traditionally, since 1893, applied and felt compelled to apply Federal constitutional rights to civil contempts, the answer is that they must know that it is a crime. And, in fact, there are no cases-- William H. Rehnquist: But how does one "know" that it is a crime? Richard Lynn Schwartzberg: --Because the courts have, since 1893, defined it as a crime and have treated it as a crime. William H. Rehnquist: And that's all it takes? You don't want to get into a semantical debate? Richard Lynn Schwartzberg: Well, I am not suggesting-- Antonin Scalia: Could you tell me, Mr. Schwartzberg, could you tell me, because it makes a difference to my answer to the question we are discussing why California has said it is a crime? Have they said it is a crime because it is a punishment? Richard Lynn Schwartzberg: --Yes. Antonin Scalia: As opposed to a coercion? Is that the reason they have said it is a crime? Richard Lynn Schwartzberg: I don't think there is any doubt that the cases have always defined this as a crime because, as the courts say, the ultimate result is punishment. And, in fact, Petitioner likes to call this coercive. The truth of the matter is that these proceedings result in substantial periods of jail time. And whether that jail time comes up front or whether it comes at the end of a probationary period where the respondent still does not comply with the court's order, and in fact the burden of proof becomes less in a probation situation than it does in a normal criminal proceeding-- Sandra Day O'Connor: Well, Mr. Schwartzberg, isn't the California procedure California's response to the uniform reciprocal support law requirements? Richard Lynn Schwartzberg: --Well, California's response as to what, Justice O'Connor? Sandra Day O'Connor: Well, there is a uniform act as you know designed to enable parents with custody of a child to obtain child support. Richard Lynn Schwartzberg: Yes. Sandra Day O'Connor: And each state, including California, has responded to that by having provisions such as this for contempt proceedings, for non-payment of child support. Richard Lynn Schwartzberg: Yes. Sandra Day O'Connor: And isn't this California's participation in that scheme? Richard Lynn Schwartzberg: Well, the 1209.5 may be, Justice O'Connor, but the original 1209 statute which presents a contempt remedy is not-- Sandra Day O'Connor: Well, 1209.5 is what we are dealing with. Richard Lynn Schwartzberg: --Yes. Sandra Day O'Connor: And there is an indication, is there not, in that uniform act that these proceedings are civil in nature for purposes of the uniform act and are designed to coerce the parent who is not making the payments to make the payments. That is the idea of the uniform act; isn't it? Richard Lynn Schwartzberg: There is no question about that, but that act does not supercede 1209. And 1209 is a crime. Sandra Day O'Connor: Would it be more accurate to say they have dealt with contempt proceedings as a matter of California law as quasi-criminal? Would that be a little more accurate, maybe? Richard Lynn Schwartzberg: I would say that the courts when they get to the issue of what species this is, whether it is criminal or civil, have used a number of different labels to govern it. And that is why I suggested a moment ago to Justice Scalia that one of the... apart from looking at the direct language of the courts to determine whether California considers this a crime is to use deduction and work backwards. And that is to look at what the courts have done and the only way you can conclude that a defendant on a criminal action or a contempt action in California has a right to counsel, which most states don't provide, has a right to Fifth Amendment privileges most states don't provide. Sandra Day O'Connor: Well, don't you suppose, Mr. Schwartzberg, that because one of the consequences of this coercive proceeding may be imposition of a jail term that a state as a matter of state law might want to build in extra protections, such as a higher standard of proof. Richard Lynn Schwartzberg: But, Justice O'Connor, I would agree with you if I could find in the cases... and I have read them over and over, again... any reference either to California's own constitutional provisions which govern the Fifth Amendment which govern the right to counsel. The truth is that they all relate back to the Fifth Amendment. And, in fact, in In re: Witherspoon, which was decided by the same Court of Appeal which decided In re: Feiock, the Court of Appeal again noted that this was a criminal proceeding and based upon Supreme Court language from 1893 concluded that a defendant in a criminal action or a contempt action had a right not to be called as a witness and that that was compelled not by California's Constitution, but by the Fifth Amendment. The leads me, obviously, to the next step which is that-- Antonin Scalia: Before you get there. Richard Lynn Schwartzberg: --All right. Antonin Scalia: Do the California courts make any difference between an order in a case like this which says, the defendant's fault in the court and the court says, "Unless you make these payments that are due, you will go to jail. " "And you will sit there until you come up with the payments. " That seems to me coercive. Does it make any distinction between that and a situation where the person who has failed in the past who makes payments comes before the court and the court says, "Because you have not made these payments in the past, you are going to jail for three months. " Is there any distinction? Richard Lynn Schwartzberg: There is absolutely no distinction in the procedural-- Antonin Scalia: Both of them are called coercive. Richard Lynn Schwartzberg: --Criminal. Antonin Scalia: Criminal. Richard Lynn Schwartzberg: Yes, in fact, when the Court looks at City of Culver City v. Superior Court, essentially, the petitioners in Culver City stand before the court asking them to tell them what kind of contempt this is because they are obviously looking at other jurisdictions and recognizing that depending on what kind of a contempt it is, they get different rights. And the Supreme Court said, "We don't care what you call it, because it is all the same. " Now, that may sound like Alice in Wonderland, but the courts have essentially eviscerated any distinction between civil and criminal contempt, the traditional forms. They discuss what they are. There is no question about that. They are not blind to that. But when we get down to the procedural niceties of what a contempt is, there is no question that the courts in California treat it as a crime. It is a misdemeanor because it is not punishable by more than a year in county jail. John Paul Stevens: Yes, but in this very case, if this man came up with the money that is in arreared and paid it in the court or paid it for his children's support, would he not immediately get out of jail? Richard Lynn Schwartzberg: Well, first of all, he is not in jail and never was. He was placed on probation. And, essentially, the probation grant ordered him to do two things. It ordered him to make future payments on penalty of going to jail and it ordered him to make past payments on penalty of going to jail. John Paul Stevens: And what I am saying is if he makes the past payments, he won't go to jail, if he complies with the order. Richard Lynn Schwartzberg: It is clear that essentially through the minority of his children's lives, if he never misses a payment he will not go to jail. John Paul Stevens: So, it is clear that this order in other jurisdictions would be treated as a coercive and a civil contempt. Richard Lynn Schwartzberg: Correct. And I have conceded that in my briefs. And that is why I say that I think that California has chosen because of the threat of jail to call it a crime. John Paul Stevens: See, you are suggesting, I think, in my hypothetical example about a negligence case, if a state not only called it a crime, but also said, "We will appoint counsel and we will give the defendant the privilege of not getting on the stand, but the only remedy is you pay damages. " You would say that having given some constitutional rights to a proceeding that is labeled criminal means all other criminal rights must go with it. Richard Lynn Schwartzberg: No, not based upon what you just said. Depending upon where the genesis of those rights comes from. John Paul Stevens: Well, it comes from California or my hypothetical state's mistaken belief it was compelled to do so by the Federal Constitution. Richard Lynn Schwartzberg: Well, if you assume it is erroneous then, obviously, I lose. But I don't assume that their decision was erroneous. John Paul Stevens: They say it was based on the Federal Constitution and that's why they do it. It is the fact that, (a) they call it criminal; and (b) they think as a matter of Federal Constitutional law they had to do it. Does that mean that we must agree with them that it is-- Richard Lynn Schwartzberg: Well, I wouldn't put it that way. John Paul Stevens: --What else do you have in this case? You have California classifying this as criminal proceeding and giving a lot of rights to the defendant. Richard Lynn Schwartzberg: Sure. Because it is a crime. John Paul Stevens: It is a crime because they call it a crime. Richard Lynn Schwartzberg: But that is always the predicate. Isn't that always true for any wrongful act? John Paul Stevens: No. The state also identifies certain sanctions that require that then there are rights-- Richard Lynn Schwartzberg: Well, then maybe we ought to make it clear. This is a crime. The sanctions in this case are no different than in any other crime. John Paul Stevens: --Yes, they are because the defendant here carries the key to the prison-- Richard Lynn Schwartzberg: And so does every other criminal defendant in California. If I go out and commit a robbery in California, and I am convicted of that robbery, the penalty is either probation or prison. A court could place me on probation and could stay the imposition of that prison sentence and if I am a good boy for three years on that probation grant, I will never see a day of time. John Paul Stevens: --Yes, but it could also say, "You are going to jail for three years. " "I don't care whether you make restitution or not. " Richard Lynn Schwartzberg: And so can they under the civil contempt statute. That's the analogy I want to break. Under the civil contempt statute, there is no obligation that the trial court place the contemptor on probation and give him another chance. The court can simply say, "Off to the hoosegow". John Paul Stevens: But if he does that, then I think everyone would agree that is the equivalent of a criminal procedure. Richard Lynn Schwartzberg: But we don't define whether a matter is criminal after we find out what the sentencing is when the state has already said that it is criminal. And that is the problem we are having. Byron R. White: Could I ask you, Mr. Schwartzberg, if we disagree with you and say that California's notion about whether this law is criminal or civil doesn't bind us and we decide that we will treat it as civil, do you lose? Richard Lynn Schwartzberg: Yes. Byron R. White: Why? Richard Lynn Schwartzberg: I lose because I would concede that under Rylander and Usury that the inferences, the burden shifting that this statute accomplishes do not offend the Fifth Amendment in civil matters. I would concede that, and I have conceded that all along. Byron R. White: Yes. All right. Richard Lynn Schwartzberg: Let me go a little bit further here and indicate to the Court this. One of the things that I think this case presents by the petitioner is essentially... comes out of some for the same questions as the Court was asking Mr. Capizzi, and that is do we essentially allow petitioner to relitigate the definition of state law before this Court when they have essentially lost that opportunity in the Courts below? What I would suggest to the Court is that these issues, if the Court looks through the original briefs that were filed in this case, the Court will notice two things. Petitioner never argued to the Court of Appeal that this was not a crime. And Number Two, they never argued to the Court of Appeal that as an element of that crime we add ability to pay. Essentially they went to the Court of Appeal and they argued that 1209.5, notwithstanding these two assumptions, did not offend the Fifth Amendment, and perhaps that is why you have the Court of Appeal providing short shrift to what we are now arguing amongst ourselves. The fact is that petitioner has also argued in their brief, and I have had-- Byron R. White: Well, yes, but the Court of Appeal didn't give short shrift to the notion that this is the kind of a proceeding in which shifting the burden of persuasion is unconstitutional. Richard Lynn Schwartzberg: --No, because they knew from the outset that they were dealing with a crime in California, and once they had that as a predicate, then the only other question that they had to resolve was whether the wording of 1209.5 offended the Fifth Amendment, and they didn't have any trouble reaching that conclusion either. And the reason we know that they wouldn't have any trouble is because essentially this shifts everything onto the defendant. We know that. Byron R. White: You seem to be arguing that we just aren't entitled at all to ask whether or not this is close enough to a crime to trigger these protections. Richard Lynn Schwartzberg: I would be fearful to use the word entitled, but I would hope to argue to the Court-- Byron R. White: Don't be fearful. Richard Lynn Schwartzberg: --I would hope to argue to the Court that, yes, the answer is is that this case is very similar in some respects to Runi. I mean I just... I see... my view is that what the Court is being asked to do is to rewrite the opinion but I think that the answer has to remain the same. My belief is, and I think that the cases support it, and in fact in the reply brief that petitioner filed just last week essentially petitioners... I consider their central argument to be on Page 9 that this Court must define the subject matter of a statute solely in federal terms. If that is true then what I would suggest is that if the federal government in 49 states make a wrong a civil cause of action, providing for injunctive relief, let's say pouring 1,000 gallons or sulfuric acid down a drain, they make it a civil wrong, they allow for injunctive relief to stop it from happening, and damages to punish the wilful or the wrongdoer for what he did, and California thinks that it is more important to protect its citizens on its water quality because we don't have any water in California, and so they make it a felony. Essentially what I see petitioner arguing is that he would come here and say it is not a crime, because nobody else makes it a crime, and perhaps it wasn't a crime under common law. John Paul Stevens: So the example would have to be they made it a felony but they way the only remedy for committing this felony is an injunction or a cease and desist order. If they did that would your position be just as strong? Richard Lynn Schwartzberg: I don't know. I would suggest to the Court that if California chooses to make something criminal, and we are getting back to the semantic argument, I don't know how to get out of it, and this is the problem I think you have seen in our briefs, if they make something criminal, does the definition of a crime only flow from the punishment, and I don't know that the answer to that is true, because there are many acts in society which may be labeled a crime which perhaps don't even carry the punishment. John Paul Stevens: But I think you have agreed that California could solve this problem. Instead of coming here with their lawsuit, they could have gone to the Supreme Court and said, we want a new rule defining this species of contempt the same way every other state does. Richard Lynn Schwartzberg: Justice Stevens, they did, and they got one vote. I mean, I think that is why we are here, and I think the answer is that since 1893 the legislature has not known what this is, they have seen various rights being compelled by the Fifth Amendment. You don't have to be Phi Beta Kappa to figure out that must mean it is a crime, and they haven't amended the statute of 1209, and the reason for that is because they are quite content with what it is. John Paul Stevens: If that is true and they want to keep this burden of proof, they can, no matter what we decide, they can say as a matter of California law we are still going to require that the burden of proof on this issue be placed on the other party. Richard Lynn Schwartzberg: I don't think they can do that as long as the Fifth Amendment exists, but I think what they can't do-- John Paul Stevens: No, no, no, I mean they could take your position, which you say they have now. Richard Lynn Schwartzberg: --They don't need to. We have already essentially eviscerated the law in California, but what I would suggest is that-- John Paul Stevens: What I am suggesting is, if you should lose this case in this Court on the federal theory, they could still, as you say as a matter of California policy this is the result they want, they could easily-- Richard Lynn Schwartzberg: --No question, Your Honor. I hope my client-- Byron R. White: --You have your own Fifth Amendment. Richard Lynn Schwartzberg: --Well, we do, but I think that our courts are going to be less inclined to utilize it in the near future. Byron R. White: You can't apply it differently? Richard Lynn Schwartzberg: No, I don't think that. I think that there is a movement of the court to utilize independent test grounds in a far more judicious manner than have been used in the past. Antonin Scalia: Mr. Schwartzberg, what about this as a way of out of your semantical box. Anything that you go to jail for is a crime. In fact, this is what I thought our law reads like. If it is a proceeding that sends you to jail, it is a criminal proceeding, unless the purpose of sending you to jail is just to force you to do something. Now, that means forcing you to do something after you are in jail, so that I can send you to jail until you pay up the money that is due or until you perform some act that you are supposed to perform. That is civil. Richard Lynn Schwartzberg: And I would suggest that does not happen in this case. Antonin Scalia: That is right. Richard Lynn Schwartzberg: Absolutely. Antonin Scalia: What is here is, you are going to jail for not having paid previously. Richard Lynn Schwartzberg: Correct. Antonin Scalia: And that, if you call that coercive, then every criminal penalty is coercive. That is to say, you are coerced not to kill people by knowing that if you kill somebody you will go to jail. Richard Lynn Schwartzberg: There is no question. The only concern-- Antonin Scalia: That couldn't be what we mean by coercive. Richard Lynn Schwartzberg: --The only concern I have is that I think that petitioner is going to argue to this Court two minutes is that merely facing that jail sentence is going to scare these people into paying their money, and that is what makes it coercive, but the same argument is true that that is supposed to stop crime, because if we know we might go to jail if we are caught, somehow crime won't occur and we know that that is baloney so it is not-- Antonin Scalia: Why don't you make that argument to us? That is not one that you made. Richard Lynn Schwartzberg: --Well, I haven't made it because of the difficulty in grappling with how the California courts go back and forth between the definition of what is a civil versus criminal contempt. It is always criminal. Antonin Scalia: Do most of these proceedings arise in the fashion that this one is-- Richard Lynn Schwartzberg: Yes. Antonin Scalia: --that is, the defendant has said you haven't made payments in the past and therefore go to jail? Or do most of them come up, you know, we are going to send you to jail until you make up past payments? Richard Lynn Schwartzberg: I would venture to say that most judges attempt the rod before they put them in jail, and the answer is, yes, most defendants are placed on probation just as I would venture to say that most criminal defendants in the traditional criminal sense are placed on probation for first and second, maybe sometimes-- Byron R. White: But if a judge says, you haven't paid, therefore you got jail, and he goes to jail, if he then comes up with his past payments, he gets out. Richard Lynn Schwartzberg: --No, not in California. That is it. Byron R. White: That is it. Richard Lynn Schwartzberg: You just do your time. Byron R. White: That's the difference. Richard Lynn Schwartzberg: You do your time. And when you get out... now you can always obviously as for a modification, and you can hold up a certified cashier's check in front of the judge and beg that he now comes back and modifies your probation, but it is not a situation where the judge says the Orange County jail is across the street, Mr. Defendant, why don't you go over there, and when you get the money, give me a call? It doesn't happen that way. Obviously, I have just a few moments, but I would like to emphasize this. Everybody is going to concede, just as the argument made by Mr. Capizzi in the beginning, that these are children involved, and obviously we have custodial parents who need the money. Excuse me. I ask the Court to affirm the decision below. William H. Rehnquist: Thank you, Mr. Schwartzberg. Mr. Capizzi, you have three minutes left. Michael R. Capizzi: Mr. Chief Justice, if it may please the Court, if there was such a defendant in jail and he did have the money, we would be so willing and happy to take that money for the children it is undoubtedly-- Byron R. White: Yes, but how about the judge? Michael R. Capizzi: --I think the judge would-- Byron R. White: If he puts him in jail for not having paid for a term, he may not let him out just because he comes up with the money. Michael R. Capizzi: --Where it is the coercive element that is trying to be utilized, and the entire thrust of these proceedings is to coerce payment, to get the payment for that child, and it is only as a last resort that the jail-- Sandra Day O'Connor: Well, Mr. Capizzi, is it true as your opponent says, that in California the jail is imposed only as punishment, not as future coercion? Michael R. Capizzi: --No, that is absolutely incorrect, and-- Sandra Day O'Connor: So he is wrong as a matter of California law? Michael R. Capizzi: --He is wrong, and I think the judgment of the Court in this case indicated that he is wrong. The jail sentence was suspended on condition that he make the payments and it is only if he failed to make the payments that the coercive element would then come into play. Antonin Scalia: The sentence itself, before its suspension, which is what we are arguing about, the sentence itself was a sentence or having failed to make past payments. Now, that is coercive, to be sure, just as much as life imprisonment for murder is coercive. It induces you not to commit a murder, and this would induce him to make the payments. It is coercive in that sense, but that is not what we mean by coercive. We mean you have the key to the jail in your pocket, and that wasn't the case here, was it? Michael R. Capizzi: Absolutely. It was suspended on the condition that he make the-- Antonin Scalia: I am talking about the original sentence. It is the sentence that we are concerned about, not the suspension of the sentence. Michael R. Capizzi: --But the sentence was suspended because Mr. Feiock didn't have the wherewithal to pay the $1,650 at the time he was given a payment schedule and told to reduce the arrearage at the rate of $50 per month. And so it was necessary to continue the course of nature of that 25-day jail sentence. If he pays, he will never do the time. And there is certainly a preference that he pay rather than that he do the time. Counsel is also incorrect in categorizing this as criminal. City of Culver City versus Superior Court, a California Supreme Court case, at Page 549, says, "But in California the proceedings leading to punishment for failure to obey a decree, criminal contempt, and to imprisonment until the omitted act is performed, civil contempt, are exactly the same. " Although the sections which provide the procedure for both kinds of contempt are provided for in 1209 of the Code of Civil Procedure, contempt proceedings are said to be criminal in nature, and those procedural right and safeguards which are appropriate to criminal contempt proceedings are also afforded in California in civil contempt proceedings. So we continue to draw a distinction based upon the substantive aspect, but we extend the procedural safeguards the same to both. And as a result, both civil contempt and criminal contempt are deemed to be criminal in nature. And the Court below did not categorize this as criminal-- William H. Rehnquist: Your time has expired, Mr. Capizzi. The case is submitted.

Earl Warren: Number 340, International Typographical Union, AFL-CIO, et al., Petitioners, versus National Labor Relations Board. Mr. Van Arkel. Gerhard P. Van Arkel: May it please -- please the Court, Your Honor. The issues in this case are very similar to the issues which were involved in News Syndicate in which Your Honors have just heard argued. In November of 1957, after some years of efforts to obtain a satisfactory agreement, the members of the Worcester and Haverhill Typographical Unions went on strike. At the time of the strike, the parties were barred on a great many issues concerning most of which no legal issue was ever raised. After charges have been filed by the publishers and after the usual proceedings before the Board, the Board found that the commands of the union were unlawful in five respects. They held unlawful a Jurisdiction Clause what the Board characterized as the apprenticeship and priority systems of the agreement, the so-called General Laws Clause and the “foreman clauses” of the agreement. The Board entered its usual cease-and-desist orders and directed the usual affirmative action. And on petition to review and cross petitions to enforce, the Court of Appeals for the First Circuit set aside the Board's order insofar as it was found unlawful the jurisdiction clause and the apprenticeship and priority systems. But the court below did sustain the Board involving illegal or General Laws Clause and the “foreman clause”. The Board did not seek certiorari with respect to the first three issues. The only two issues before the Court therefore or the two principle issues before the Court relate to the validity of the General Laws Clause and the “foreman clauses.” Before getting to these specific clauses, I would like to sketch before Your Honors a little background. In 1957, the Board had before it a report of a trial examiner which found that a contract substantially similar to the contract proposals made by the unions here was lawful and that the practices under that contract had been lawful. The Board at that time took no issue with this holding of the trial examiner. In 1950 -- that was in 1957. In 1959, the Board decided matter of Honolulu Star Bulletin. In that case, the Board did not decide that the practice is under a substantially identical agreement were unlawful. It did, however, set the contract aside as being an unlawful close chart. Now in that case, the contract contained on its face a provision which said that the term journeyman and apprentice has used herein, that is in the agreement, shall not be taken to refer exclusively to members of the International Typographical Union. Now manifestly, the parties are not required as a condition of maintaining lawful agreements to negative on their face and intention to discriminate. This would be tantamount to saying that every commercial agreement violates the antitrust acts which fails to state on its face that the parties do not intend to violate the Sherman and Clayton Antitrust Acts. But in this case, the parties had taken this additional step which we think is not required by the statute. There was a showing that a substantial number of nonunion men had actually been hired. The Board nonetheless treated it as a closed-shop agreement. And the case is instructive, I suggest, is demonstrating the way in which the Board is prepared to toss the epithet closed-shop around as a substitute for evidence and findings. The Court of Appeals for the District of Columbia had no trouble with the case. They found the contract to be lawful on its face. The Board did not seek certiorari. And as Your Honors have just heard after the most careful scrutiny, the Court of Appeals for the Second Circuit in News Syndicate found that contracts which have been in effect for some years substantially identical with the proposals herein made by the local unions, had been lawfully administered. Now, I stress that this is a completely random sample. These cases came up only by virtue of the fact that at these particular places, some employees had happened to file charges. And I suggest to Your Honors further that these cases are dispositive of this case. Because if there is a rule of law that is well said, it is that if it can be shown that a contract can be lawfully administered as these three cases demonstrate. It is to be presume that it will be lawfully administered unless the contrary clearly appears and in this case, there is nothing whatsoever to the contract. The local negotiators at all times insisted that their contract proposals were lawful and that they intended that they'd be lawfully applied. The significant difference obviously between these three cases and the case that bar here is that here we deal with proposals made in the course of collective negotiations rather than with agreements which had been in effect for some years so that actual practices under those agreements could be reviewed. The Board and the court below were therefore constrained to indulge in some extremely freewill in speculation as to how these contract proposals might have been lawfully -- unlawfully applied if they had been found acceptable by the publishers. And for present purposes, I am concerned only with their speculations with respect to the General Laws Clause and the foreman clause. The General Laws Clause reads that the General Laws would be ITU in effect at the time of execution of this agreement, not in conflict with federal or state law shall govern relations between the parties on those subjects concerning which no provision is made on the contract. Now, it is not disputed that certain General Laws of the ITU contemplate closed-shop conditions. It is equally undisputed that each of those laws has a valid field of application in enterprises not affecting interstate commerce of which there are many in the printing industry and in Cannon where the ITU has many local unions. And it is -- Charles E. Whittaker: (Inaudible) Gerhard P. Van Arkel: Pardon, Your Honor. Charles E. Whittaker: (Inaudible) that all use the same form? Gerhard P. Van Arkel: I -- I would say not, Your Honor. I've seen agreements in Canada which do not contain this language not in conflict with federal or state law. It is not disputed that that phrase “not in conflict with federal or state law” was introduced into this traditional clause immediately after passage of the Taft-Hartley Act. And the testimony in this case is entirely clear that it was designed to have precisely the effect which one would gather from its language. Namely, to exclude from the agreement any general law in circumstances in which its enforcement would lead to a violation of federal law. Now the finding of the -- or I should add further that in 1951, the General Laws themselves were amended to add Article 14 which provides that the general -- that in circumstances in which the enforcement or observance of any General Law would lead to a violation of federal or state law, such General Law is suspended. And though this Clause has been in use since passage of the Taft-Hartley Act, the Board has never yet alleged or proved that any general law has, in fact, ever been unlawfully applied despite the amount of litigation that there has been involving these agreements. Now, in finding of the trial examiner which was adopted by the Board was that there is no evidence in the record remotely suggesting that the respondent unions were not seeking to incorporate in their agreement all of the General Laws including those found illegal herein. That is to say those which would provide for closed-shop conditions. The finding of a trial examiner thus directly at variance with the clear language of the clause and with the testimony explaining its purpose for inclusion in the agreement. Now an essential qualification to become a printer is that one be able to read. And if as I think we can and must, we assume a higher degree of literacy on the part of employees in this industry that is represented by this finding which the Board adopted. This case will give Your Honors a little trouble. Needless to say, the court below did not adopt so palpably erroneous finding that went almost as far, however, by saying that this proviso obviously designed to exclude language from the agreement was in fact language of incorporation by reference. Chief Judge Prettyman on a Honolulu Star-Bulletin gave we think the clear answer to this. He said in speaking of this clause that it clearly provided that the General Laws of the union in conflict with either federal law or the contract itself were not included in the contract. A closed-shop provision would have been in conflict with the federal law and also in conflict with Section 2 (a) of the contract. Any such provision in the General Laws was accepted from inclusion in the contract. We do not see how language could have been clearer. Now, I suggest to Your Honors that this is not only the lawyer like but the common sense way of reading the language of this clause. The real thrust of the Board's opinion in this case and of the court below has been the assertion that because employees might be in -- uncertain as to which of the General Laws were included and which were not included, that this uncertainty is the equivalent is illegality. Now, Your Honors, in the case last year, Steel Workers case, developed at great length the reasons why collective agreements of necessity contained large areas of uncertainty and why provisions for arbitrating them are therefore essential. I put it to Your Honors in all seriousness that nothing could be more destructive of the institution of collective bargaining and nothing could be more productive of industrial strife than the adoption of the rule here put forward by the Board. If the parties to collective agreements are required to draft them with such specificity that not only the Board and not only the courts, but a group of unidentified, illiterate, suspicious employees must be satisfied that their rights can under no circumstances be infringed under such an agreement, then collective bargaining becomes a manifest impossibility and when on top of that, when the penalty for leaving any lingering uncertainty on the agreement is the application of the Brown-Olds remedy as the Board has proposed in these cases. Collective bargaining then, becomes a means of soliciting a fine unless the parties can anticipate all the myriad situations which may arise under the agreement, may supply answers, so clearly lawful that no employee can possibly have any doubts that this is the correct answer. Chief Judge Prettyman on this and Honolulu Star-Bulletin said some -- used language which we think is fundamentally important not only to this case but to all collective bargaining he said. The Board says that since the contract mentions the rules of the union, employees would have the impression that the rules were incorporated in there entirely and would not differentiate those contrary to law or to the contrary. From that premise, the Board reasons that the contract is per se a closed-shop contract. This conclusion is a complete known sacred. An erroneous impression of plain terms does not change the meaning of the plain terms. Furthermore, assumptions that employees will not understand a lawful contract cannot be the basis for holding the contract illegal. What would be the justification for emphatic insistence upon formal collective bargaining as to terms of employment if the conduct of the parties thereafter is to be judged by speculative, uninformed impressions of those terms instead of by the terms themselves has hammered out at the negotiation table. I put it to Your Honor that this is the way a lawyer -- this is the lawyer like approach to this problem. Indeed, in its brief here, the Board appears to concede that lawyers and judges would read this agreement to be lawful. I will not conceal my hope that at least five judges and preferably nine, will read it to be lawful. I repeat. That is impossible for the parties to meet the standard which they say collective bargaining requires if agreements are to be lawful. I turn them to the speculations concerning the foreman clauses in this agreement. The clauses as proposed below, proposed in the negotiations read as follows. The operation authority hiring for and control of each compulsory rule shall be vested exclusively in the office through its representative the foreman who shall be a member of the union. The union shall not discipline the foreman for carrying out written instructions of the publisher or his representatives authorized by this agreement. The holding of the Board on this issue was that these clauses, well in effect “create a closed-shop” because they say it is to be presumed that the foreman would consider himself bound by the rules of the union calling for a closed-shop agreement and that these are therefore illegal. We say there are the most compelling reasons for making the directly opposite presumption. But first and most important and we suggest dispositive is the presumption that the citizen will obey the law since the statute forbids discrimination higher, it is to be presumed that the foreman, whoever he may be, union or nonunion, would place the statute above any union rules. Second with almost equal importance is the agreement itself. The agreement as proposed by these local unions would have setup standards that were higher which were completely none discriminatory, which were based solely on competence and experience, which had no relation whatsoever to union membership or non-membership. The laws clause which I read to Your Honors makes it entirely clear that the contract prevails over any inconsistent general law, so if the publishers had accepted these proposals, the foreman would have been told directly on the face of the agreement by which of course he would be bound but he was not expected to follow discriminatory methods higher. We have set forth in our brief the four separate occasions and methods by which the ITU has notified those of its members who are foreman that they are not expected to discriminate them higher. The Board seems to fill that four times is not enough whether its 6', 8', 10' would or would not be, we don't know. Apparently, they consider such a declaration effective only if it is compelled by a Board order. The most significant aspect of the Board's brief on this problem is that they failed even to mention the amendments to the Act in 1947 in Sections 23 -- 211 and 14 (a) by which the Congress made it entirely clear that foremen were no longer employees under the Act, that the employer was free to discriminate as he like with respect to the union membership or nonmembership of his foremen. The Congress at that time made it entirely plain that a requirement that a foreman be a union member was not discrimination within the meaning of the Act and it is therefore irrelevant as the court below found that the effect of this clause might be to encourage aspirins for the foreman job to join the union. Since in Radio Officers, Your Honors made it entirely clear that it is not enough to show encouragement but that this encouragement must be achieved by discrimination. And this requirement is not discrimination within the meaning of Section 8 (a) (3). Indeed, if I may digress for a moment, Your Honors, I suggest that in all of the cases presently before Your Honor -- Your Honors, a misreading by the Board of Radio Officers lies at the heart of all the difficulties. They have attempted to read out of the statute the words by the discrimination to find that anything which encourages union membership is per se a violation of the Act and that therefore there is no longer any need to find discrimination. Your Honors made it entirely clear in Radio Officers and the whole history of the Act bears it out, that the first essential is to find discrimination and if that is lacking then the question of discouragement or encouragement of union membership does not arise. For these reasons, we say that those clauses were lawful. I will leave to our brief the question whether or not the Board and the court below properly held that both the International Typographical Union and the local unions could at one in the same time be the exclusive representative of these particular employees. In order to say a word about Board's order in this case. The Board's order here forbids the respondents to insist on a laws clause. Your Honors will, I hope find instructive Appendix B to our principal brief in this case. On this and the following pages, we have set forth in tabular form, the General Laws which have been attacked in all of the various cases which have been brought involving this issue. Your Honors will observe that those attack range from zero to 37 plus, but the significant thing is that no two of them ever agreed. The Board personnel constantly varies its positions as to what's lawful and what's unlawful. Significantly, however, this chart shows that the great bulk of the General Laws have not been attacked in this or any other proceeding. Now, we say that in saying that we may not use the laws clause, it is therefore entirely clear that the Board is trying to throw out lawful conduct as well as conduct which they say unlawful. Your Honors' opinions make it entirely clear. We think that this is something which the Board may not do. We have set forth in our briefs in this case and in Number 339, the numerous additional reasons for objecting to the decisions and order of the Board in this case. For the reasons I have stated here and for the reasons stated in that brief, we urge that the judgment of the court below be reversed. Thank you. Earl Warren: Mr. Manoli. Dominick L. Manoli: May it please the Court. The issue which lies at the heart of this case as I have said during my argument in the preceding one is the same as indeed Number 339, namely -- namely whether the savings clause in a contract of this kind does effectively neutralize or suspend the otherwise illegal closed-shop provisions of the General Laws. Now if we prevail, if the Board should prevail upon that issue, then there is the ancillary question of it with respect to the foreman clause whether the foreman clause which requires that the foreman be a union member, that he is given exclusive authority to hire, whether that clause also is in violation of the statute since as a union member, presumably, he would be required under -- he would be under an obligation to observe the union's laws, the union's General Laws. Now, the issue in this case arises in a slightly different context and it did in the case preceding this one. In the case preceding this one, the party did enter into an agreement and the Board found that the agreement and the practice they're under, constituted a closed-shop or an illegal union preferential hiring system. Here -- here, the publishers resisted, resisted these clauses despite the union's insistence. In fact, the union went out on strike in support of these clauses. The Board found that these clauses that they had been accepted, as in the preceding case, would have also violated the closed-shop brand of statute and that therefore, the union by insisting upon these as there was a basis as -- as a term of the contract and going out on strike in support of them, not only violated the statutory duty to bargain in good faith but also violated the statutory prohibition against attempts to cause an employer to discriminate against -- against employees. Now, the validity of these findings depends upon the legality of the savings clause and the so-called foreman clause. If the Board is right in holding that the savings clause and the foreman clause do violate the statute, then I think there can be a little disagreement, little serious disagreement that the union's conduct is always a violation of both the statutory duty to bargain in good faith as well as the statutory prohibition against attempts to cause discrimination. Now, I have already discussed the Board's position with respect to the savings clause, the General Laws Clause and the savings clause there and I shall not repeat what I have already said. I therefore turn to the foreman clause. Now, the Second Circuit in the preceding case did not reach this issue because having settled, having resolved the threshold question with respect to the savings clause adversely to the Board. It said that the ground had been cut out from under the Board's position with respect to the “foreman clause”. Now, the proposal or the foreman clause here require the foreman to be a union member and vested him exclusively with control over employment hiring in the composing room of these two newspapers. The -- one of the publishers in this case, I think it is significant. One of the publishers in this case suggested to the union that union membership be made optional and thereby minimize, thereby minimize the union's control, the union's control over the foreman, but the union refused to -- refused to agree to that proposal. Now, as a member of the union -- as a member of the union, the foreman would have been under an obligation to respect the union's rules at least to the extent that they were not inconsistent with the specific terms of the contract. And the ITU General Laws as I have already stated, contained numerous provisions, numerous provisions which call -- which -- which would effectuate or put into effect -- establish closed-shop -- closed-shop conditions. Now the vesting of exclusive authority or hiring authority in a foreman who had to be a member of the union has been an important aspect of the closed-shop policy of the ITU. The foreman has served as the watch dog and as well as the -- for the union as well as the enforcer of its closed-shop policy. And the union, the union has been able to keep tabs on him, has been able to keep tabs on him because it controlled his employment as a foreman. He could not be a foreman unless he was also a union member. Now, against this background, against -- against this background, we submit that the Board was entitled to say that the “foreman clause” was an additional device, an additional device for maintaining closed-shop conditions. In fact, the employers opposed -- opposed the foreman clause precisely for that reason -- precisely for that reason, because they could foresee -- they could foresee that a foreman required to be a union member vested with exclusive hiring authority that it would be only natural -- it would be only natural for him to favor union members and certain the employees, the employees would have no less reason for thinking so. Now, we say that at the company -- the companies and the union subscribed to this kind of contract having these foreseeable consequences, it would have been just exactly as though they had included closed-shop conditions or union preferential hiring system in the contract itself and that this is a violation of the statute. Now, one of the arguments that is made here that there is no basis for the Board to draw an inference, that the foreman who is an arm of management in one sense, that he would give precedence -- give precedence to his duty to the union, namely, to prefer union members over his duty to the employer to a hire or fire on the basis of competency alone without regard to union membership or the lack of it. Now, we don't believe this argument really very scrutiny. Under this contract, had it been signed, the employer would have divested himself of control over employment. It would have been turned over to the union. The employment in the composing room would no longer be a prerogative of the employer, but it would have been primarily a union concern. The contract itself prescribed no con -- no requirements with respect to the exercise of the foreman's exclusive hiring authority other than the hired journeymen and apprentices. The foreman was left entirely free. He was left entirely free to prefer union members and indeed we think he was under a compelling -- compelling -- there were compelling reasons that would have prompted him to prefer union members because his job as a foreman depended upon his maintain -- maintaining himself in the good places of the union, because he could be a foreman only as long as he remains a union member. Now, it's been suggested here -- it has been suggested here that the employer -- that the union could not grieve over the failure or he could not grieve if the employee -- if the employer disciplined the foreman because it failed to issue instructions -- because he had failed to abide by his instructions. Now, there were -- there was nothing in the contract -- nothing in the contract which were permitted to the employer to tell this -- to tell this foreman to disregard the union's rules when it came to exercising of his exclusive power to hire and fire because although the contract said was that he was to hire -- he was to hire a journeyman or apprentices. He was completely free -- completely free to prefer union members and there would have been no basis -- no basis for the employer to complain insofar as the contract was concerned to complain -- Earl Warren: We'll recess now.

Earl Warren: Number 248, George K. Rosenberg, District Director, Immigration and Naturalization Service, Petitioner, versus George Fleuti. Mr. Monahan. Philip R. Monahan: Mr. Chief Justice, may it please the Court. This case is here on certiorari to the Ninth Circuit Court of Appeals to review a judgment of that Court, setting aside a deportation order on the ground that Section 212 (a) (4) of the 1952 Immigration and Nationality Act as applied in this case is void for vagueness. The facts are not in dispute. The respondent is a 50-year-old native and citizen of Switzerland. He is unmarried and has no children or dependents. He was admitted for permanent residence to this country in October of 1952 and has resided here continuously since then with the exception of a period of something less -- something less than a day when he made a trip to Ensenada, Mexico in August 1956 following which he was readmitted to the country at San Ysidro, California as a returning resident alien. In April, 1959, the Immigration and Naturalization Service issued an order requiring him to show cause why he should not be deported as an alien who prior to entry, and the entry in question was the reentry of August 1956 which I might say parenthetically at this point constituted an entry within the explicit definition of entry in the 1952 Act, why he was not deportable as an alien who prior to entry was convicted of an offense involving moral turpitude, consisting of his conviction on his plea of guilty in the California Superior Court for the County of Los Angeles of a homosexual act committed in February of 1956 for which he was sentenced to a fine of $200. The respondent appeared at the immigration -- at the deportation hearing with counsel acknowledged the truth of the factual allegations underlying the order to show cause, conceded his deportability, indicated that he desired to be deported to Switzerland and was ordered deported. He indicated that he did not desire to take any appeal and he did not appeal. However, in July of that year, on the motion of the prosecuting officer of the Service, the proceeding was reopened on the representation of the Service that because of certain technical Escape Clause in the Act which I -- which is explained in our brief and which I will not attempt to explain here, the offense underlying the outstanding deportation order was not one that was deportable in itself because it came within the definition of a mis -- a misdemeanor classifiable as a petty offense as defined in the immigration laws and therefore in itself was not deportable. However, the Immigration Service requested that the proceeding be reopened for the introduction of an additional charge of deportability which is the one presently before the Court. That charge was that he was in it -- he was deportable because he was inadmissible at the time of his August 1956 entry as an alien afflicted with psychopathic personality. In support of the additional charge, there was received in evidence, a certificate by a physician of the United States Public Health Service certifying that the respondent was a psychopathic personality and had been such at the time of his entry. Dr. Dahlgren, the Public Health Service physician who signed the certificate was -- testified at the hearing and was subjected to cross-examination, and he testified that -- he acknowledged that he was not a psychiatrist himself but that he had classified the respondent as a person afflicted with psychopathic personality because the official instruction book of the Public Health Service called The Manual for the Examination -- Medical Examination of Aliens, requires that any alien who is a homosexual or sexual deviant, be placed in the category of a psychopathic personality. He stated on cross-examination that he had no particular opinion or no particular feeling or words to that effect as to whether the respondent would be considered a psychopathic personality under traditional medical standards. In addition, the record of a second conviction of the respondent, one which preceded in time, the one I've mentioned before, it took place in 1953 which was also based upon a homosexual act as the respondent admitted at the hearing was received in evidence for which -- and the record shows that the defendant or the respondent rather was sentenced to a $100 fine on that occasion. It was also received in evidence a sworn statement, a sworn statement by the respondent which appears at pages 74 to 75 of the record which the respondent made to an investigator of the Immigration and Naturalization Service in March, I believe, of 1959, and which he acknowledged at the deportation hearing was true, in which the respondent stated that he had had homosexual urgence since he was a young man of 24 in Switzerland and that in the intervening period of 22 years, he had indulged in homosexual activities whenever the opportunity presented itself which he said was on the average of about once a month. John M. Harlan II: How was that [Inaudible] Philip R. Monahan: This was a voluntary statement made to him to a -- an investigator of the Immigration and Naturalization Service. John M. Harlan II: [Inaudible] Philip R. Monahan: No. It was made in March of 1959 during the course of the Service's inquiry into the man's background, Your Honor. He further stated in this affidavit that his homosexual activities had begun in Switzerland and that he had never been caught or arrested in Switzerland that they had continued in this country and that he was unfortunate enough to be arrested for them in a public park in Los Angeles. He acknowledged that both his 1953 and 1956 convictions were based upon homosexual acts. He stated that he was arrested on a third occasion in Oxnard, California in 1958 for similar activities but those charges were dismissed. And he stated that since his second Los Angeles arrest or conviction rather in 1956, he had been very careful with respect to his homosexual activities because he had heard that such things were reported to Washington and he felt that the Immigration authorities might be looking for him. On the respondent's behalf, there was received in evidence a report in the form of a letter to the respondent's then counsel, predecessor of present counsel, I believe, by his personal psychiatrist, Dr. David Harvey, in which Dr. Harvey stated that he had -- had examined the respondent on four occasions between May and August of 1959, and it acknowledged that the respondent had had homosexual activities since the age of 26. But in which he stated that the man's sexual drive particularly at his age, is thought to be within his range of control especially if he is under the supervision of continuing contact with a psychiatrist. And in which he further stated that his socioeconomic relations were consistently good, that he did not frequent homosexual hangouts, had no evident interest in nudes, manifested no irresponsible trends, and had his main social contacts with respected members of the community. Dr. Harvey further stated that the respondent's deviation, to use his word, was not sufficient in his opinion to warrant the classification psychopathic personality, and that the formal label should be or would be sexual deviation, homosexuality now under control. The special inquiry officer at the conclusion of the hearing determined that the addition -- the additional charge had been supported because on the undisputed evidence, the respondent was and at entry had been a homosexual. And he referred to a prior decision of the Board of Immigration Appeals in which the Board, on the basis of a thorough analysis of the legislative history of Section 212 (a) (4) of the 1952 Act had concluded that Congress -- that there could be no doubt that Congress intended to exclude homosexuals and sexual deviants within that category. The petitioner, following an unsuccessful appeal or rather the respondent following an unsuccessful appeal to the Board of Immigration Appeals, sued for injunctive and declaratory relief in the North -- in the District Court of the Northern District of California in which he challenged the sufficiency of the Service's finding of psychopathic personality and in addition contended that the term was unconstitutionally vague as it had been applied in his case. The District Court finding that -- that there was certainly ample evidence to support the finding that he was and in entry had been homosexual held that on the basis of the legislative history, it was clear that he was also a psychopathic personality within the congressional intent. The Court rejected the contention that the term ‘psychopathic personality' was unconstitutionally vague with the observation that while it might be true that a criminal statute which employed such a term might be too definite to be sustainable, too indefinite to be sustainable, the same strict standard of definiteness should not be required of a statute which merely defines the classes of aliens who are inadmissible to the country. The Court of Appeals reversed, holding that the phrase was unconstitutionally vague as herein applied and that resort might not be had to the legislative history. The Court, while recognizing that the respondent's deportation had not been ordered on the basis of his miss of -- of any conduct in this country, but because of a disqualifying condition at the time of his entry, held nevertheless that the Immigration and Naturalization Service's reliance in part in making its finding as to the existence of that condition on behavior by the respondent in his country, made the application of Section 212 (a) (4) to his case fundamentally unfair. The Court's rationale is set forth in -- on page 96 of the record where the Court said, “Insofar as the record reveals continuance of homosexual practices after Fleuti entered this country in 1952 and again in 1956 was not compulsive, but was a matter of choice.” It follows that if by reason of vagueness, the statute failed to advise him that homosexual practices conclusively evidenced a psychopathic personality, Fleuti was substantially prejudiced. As in the case of a vague criminal statute, he would thereby be deprived of notice that unless he refrained from such conduct, harsh results might follow. Arthur J. Goldberg: [Inaudible] Philip R. Monahan: It is, sir. The -- Arthur J. Goldberg: You've got the [Inaudible]? Philip R. Monahan: The -- Arthur J. Goldberg: [Inaudible] Philip R. Monahan: It is true that it is acknowledged on the record in this case that the respondent was a homosexual at the time of both entries. The first entry may not be regarded because that occurred before the effective date of the 1952 Act. It occurred after the -- after the passage of the Act, but before its effective date. Arthur J. Goldberg: Then you have to rely on it? Philip R. Monahan: You have to rely upon the second entry. Byron R. White: [Inaudible] Philip R. Monahan: Oh no, sir. No, it's a matter of what Congress did. Certainly, Congress could make homosexual conduct in the past deportable, but it did not -- has not done so. Now, to get back to your question, Mr. Justice Goldberg, it is true that there has been ack -- acknowledgment of his homosexuality at the time of the pertinent entry in August, 1956 and we do say that it's rather unrealistic to assume the possibility that the special inquiry officer, while he did consider the homosexual activities in this country, would have reached any other conclusion even if he had ignored those activities on the basis of the respondent's own acknowledgment and his own psychiatrist's statement to that effect. Nevertheless, the Court of Appeals did think that because the service had considered the activities in this country, homosexual activities in this country, in part, in arriving at its determination that at least we do not rest, we do not rest upon the acknowledgment by the respondent of his homosexual condition in 1956. Now, we submit -- Potter Stewart: So there would never been any knowledge, I presume of a -- Philip R. Monahan: It probably -- Potter Stewart: -- of this condition dating back to this man's -- on his -- in his twenties if it hadn't been for this arrest after he got to this country. Philip R. Monahan: It probably never would have -- Potter Stewart: Is that fair to say? Philip R. Monahan: It probably never would have come to light -- Potter Stewart: Yes. Philip R. Monahan: -- had he not acted in the manner that he did in this country, and I think that that is at the basis of what bothered the Court of Appeals about this. The fact that his preentry activities in Switzerland probably never would've come to light and there never would've been any deportation proceeding had he -- had it not been for his homosexual activities including his convictions in this country. Byron R. White: [Inaudible] Philip R. Monahan: That is -- that's precisely the point of the Court of Appeals and we submit that the Court has misapplied the vague -- the void for vagueness doctrine. That rule -- Potter Stewart: There's no question but in the opinion of the psychiatrist, this is conduct which this man could have controlled and abstained from, isn't it? Philip R. Monahan: That is -- that is correct, sir. Yes. Potter Stewart: If he wasn't compulsive or anything. Philip R. Monahan: He -- Potter Stewart: Maybe it was but it is no longer. Philip R. Monahan: He said that so far as it appears, the conduct was not compulsive. It was a matter of choice and so far as the record appears that is true. There is no indication that these were compulsive actions. Byron R. White: I take it that [Inaudible] Philip R. Monahan: I think not, sir. I think there'd be no question then. But it is true that he -- he did take into consideration the convictions and activities, the admission of his activities in this country. Arthur J. Goldberg: [Inaudible] respondent has no authority to [Inaudible]? Philip R. Monahan: He perhaps would but then he would have to say that -- that an alien who is knocking at our doors has a right to know on the face of the -- of an exclusion statute, on the face of it, not as a matter of legislative history but on the face of it that a person, a homosexual is included within the category of psychopathic personality and he -- and he might make that argument. I do not think he'd be successful because -- Arthur J. Goldberg: [Inaudible] Philip R. Monahan: That's -- that is the step that has been taken. He did get into the country. He has been here 10 years and his position and the Court of Appeals' position is as a result of his residence in this country, he has acquired the right to challenge the exclusion, the admissibility statute for lack of precision on its face. Now the -- the fair -- the void for vagueness statute -- doctrine which has been sometimes referred to as a fair warning statute has always been applied in a case involving behavior governing statutes. The point is that as the Court has said in the -- one of the leading cases, Connolly against the General Construction Company, a statute which either forbids or requires the doing of an act in terms so vague that man of common intelligence must guess at its meaning and differ as to its application violates the first essential of due process of law. And as this Court said more recently and perhaps more succinctly in the Harris case, no person should be held criminally responsible for conduct which he could not reasonably understand to be proscribed, but that rule, the Government contends, has no application in this case. For here, the statutory ground on which the respondent was ordered deported was not misconduct after an entry, but a condition with which he was unfortunate enough to be afflicted at the time of his entry. Certainly, Congress has it within its power to enumerate physical and mental defects or disorders which will disqualify an alien for entry and it has done so, Section 212 (a) as in large part, a catalog of such disqualifying conditions. These can in no sense, be considered as guides to conduct and the application to them of the principle requiring indefiniteness in behavior governing statutes and have no rational justification, we submit. What the Court of Appeals has done in this case is to extend in a wholly unprecedented manner, the fair warning doctrine, and has converted it into a rule which protects -- which would protect resident aliens from inadvertently furnishing evidence to the Immigration officials showing them to have been afflicted with a disqualifying condition at the time of their entry. Hugo L. Black: I thought you said you had not – excuse me? Arthur J. Goldberg: [Inaudible] Philip R. Monahan: Where -- where deportability is based upon inadmissibility or excludability at the time of entry, the sole question in a deportation proceeding is whether or not at that time, he was excludable. So, the answer to Your Honor's question is yes. That's -- that is in accordance with the explicit terms of the Immigration law. Hugo L. Black: What I'd -- I had thought you said at one time, it was -- the law didn't forbid this or didn't make this a disqualification at the time of entrance? Philip R. Monahan: No, I think that Mr. Justice White's question was whether or not Congress could deport an alien on the basis of past homosexual conduct as such. And I said, “No, that's a -- Congress certainly could but it had not done so in those terms, homosexual conduct.” It has used the term ‘psychopathic personality' and it is necessary to go to the legislative history of that phrase in order to discover the congressional intent to include homosexuals within that category. Byron R. White: [Inaudible] Philip R. Monahan: That -- Byron R. White: -- prior to the answer which appear [Inaudible] -- Philip R. Monahan: Oh yes, sir. Byron R. White: Does it? Philip R. Monahan: This -- it was prior to the 1952 Act, four years prior to the entry in question here. Hugo L. Black: You say that so far as the doctrine's vagueness is concerned, as related to disqualifications from entering that it could be written in ancient sensory or anything else, immaterial, whether the person knows it or not. Philip R. Monahan: I think that at least that question is not in this case. Arthur J. Goldberg: [Inaudible] Philip R. Monahan: Because he -- he is contending that he has a right as a resident alien not to be deported on the ground of past excludability. I think that if -- I think that the respondent's contention in the Court of Appeals holding hinges upon the fact that he has been a resident in this country. Byron R. White: What if -- what if -- what about [Inaudible]? Philip R. Monahan: I think we would -- I think that the Government would, sir. Byron R. White: Regardless of whatever [Inaudible] Philip R. Monahan: I think that it is a principal of constitutional law that an alien who has never reached our shores -- Byron R. White: [Inaudible] Philip R. Monahan: It doesn't make any difference at what? William J. Brennan, Jr.: If it -- if it wasn't [Inaudible]? Philip R. Monahan: I think that would be true as long as the legislative history were clear as to what Congress intended. John M. Harlan II: Oh, I was wondering -- Philip R. Monahan: But that is not this case though. John M. Harlan II: You go a step further. I suppose you would say that Congress passed the statute in 1955 as long after this [Inaudible] for the first time making use the ground of excludability [Inaudible] Philip R. Monahan: Making homosexuality? John M. Harlan II: Yes. Philip R. Monahan: Committed before entry? John M. Harlan II: Yes. Philip R. Monahan: Oh, yes, yes, yes, sir. John M. Harlan II: Is there any constitutional barrier? Philip R. Monahan: No -- none, sir. Not under the recent decisions of this Court. John M. Harlan II: I assume a fortiori as to that [Inaudible] Philip R. Monahan: I think -- I think so, yes. Yes, sir. Byron R. White: [Inaudible] Philip R. Monahan: Well, I think -- I think that is -- Byron R. White: [Inaudible] Philip R. Monahan: I think so, yes sir. But it -- but it is not necessary for the Government to rely upon that to prevail in this case. That -- that would be sufficient. Byron R. White: [Inaudible] Philip R. Monahan: Well, I want to rely on both. I want to rely upon that point as well as our other points. Hugo L. Black: Well, I would suppose that what you're saying is that alien came in here and have been here 50 years. Congress passed a law and said 50 years ago, we should have passed the law making them illegal to come in but we didn't. But we do now and he has to be deported. Your argument is that'll be alright. Philip R. Monahan: Yes, sir. Byron R. White: Well, is that [Inaudible] Philip R. Monahan: That is not this case. Hugo L. Black: It hadn't been that long. Byron R. White: [Inaudible] Philip R. Monahan: Before his -- the entry in question, yes, sir. And -- Hugo L. Black: I didn't say it was this case -- Philip R. Monahan: No. Hugo L. Black: -- but the question I asked you, which you answered -- assume that you didn't need to go any further than to say, “Well Congress, anytime they sees it fit and that's the law and it would be fine retroactively.” Philip R. Monahan: Well, it's just -- Hugo L. Black: 50 years just as well as [Inaudible], I would think. Philip R. Monahan: That's not just my suggestion, Mr. Justice Black. Hugo L. Black: But you're -- you're trying to -- you're trying to put a thought in another ground. Philip R. Monahan: No. I'm suggesting that's the law as laid down by this Court, in repeated decisions, that Congress does have it within its power. Hugo L. Black: Well, if that's what you're relying on, I agree with those -- Philip R. Monahan: We -- Hugo L. Black: -- who asked the questions. Philip R. Monahan: We don't rely upon -- Hugo L. Black: But that's enough if you're right. Philip R. Monahan: We don't rely upon that wholly but we're -- that was one over the strings to our vote. John M. Harlan II: The case is not -- is on appeal, it's in the record. Philip R. Monahan: It is not a -- it is not -- is unappealing as that case. Arthur J. Goldberg: Do you rely upon [Inaudible]? Philip R. Monahan: That is true, but there is a vast body of psychiatric literature which does include homosexuality as a type of psychopathic personality. Arthur J. Goldberg: [Inaudible] Philip R. Monahan: That if -- no -- Arthur J. Goldberg: [Inaudible] Philip R. Monahan: No, I think that it is just not necessary for the Court to reach the question of whether or not the term psychopathic personality in the absence of legislative history shows any congressional intent. Arthur J. Goldberg: [Inaudible] Philip R. Monahan: Yes, sir. Arthur J. Goldberg: [Inaudible] Philip R. Monahan: It's a -- yes sir. As a matter of fact, Mr. Justice Goldberg, the legislative history indicates that the Public Health Service in its representa -- in its representations to Congress and what they say is in the appendix to our brief, acknowledged that the term psychopathic personality was a vague one. But that they said it was broad enough to include homosexuality and it was on the basis of that representation that Congress struck from the original bills which eventuated in the 1952 Act the explicit reference to homosexuality. Hugo L. Black: It is your judgment that Congress has as much power to deport as it does to exclude? Philip R. Monahan: Many decisions of this Court, Mr. Justice Black which has said that the power of Congress with respect to exclusion and deportation is plenary which I understand means complete, and that the actual decisions of this Court indicate that the Court means just that. Certainly, the power to deport a person for activities which were not ex -- not a basis for deportation when they occurred -- in other words, the retroactive making of activities deportable is about as far as one could go in -- in -- Hugo L. Black: That -- that would be the equivalent of it, wouldn't it, making it the same, you can deport -- you can deport for any reason, you could keep him out. Philip R. Monahan: Yes, sir. And that -- and that is not my own suggestion, Mr. Justice Black -- Hugo L. Black: I understand. Philip R. Monahan: -- that is the law of -- as laid down by this Court -- Hugo L. Black: I think you have -- Philip R. Monahan: -- within recent terms. Hugo L. Black: I think you have ample statements on which you base your argument. Philip R. Monahan: Thank you. Earl Warren: Mr. Kwan. Hiram W. Kwan: Mr. Chief Justice, may it please the Court. Counsel for the Government has in effect stated his position to the effect that an alien that is lawfully present in the United States, after having been admitted as a lawful permanent resident is not entitled to due process of law or not entitled to notice. We disagree with that position. We feel that the statutes as promulgated by Congress, namely, Section 212 and -- which is the exclusion section and Section 241 are mutually exclusive. Section 212 sets forth the basis of exclusion. One theory could be that an alien that is outside of the United States prior to entry would not be entitled to know notice whatsoever. I think the law is in that direction. However, the entire Section 212 is incorporated by reference into the deportation statute as subsection (a). In your deportation section, I think that the alien is entitled to notice because he is physically present in the United States. If that -- William J. Brennan, Jr.: [Inaudible] Hiram W. Kwan: Under the exclusion section and I will label the Exclusion Section 1182 of the U.S.C.A., Section 1182 U.S.C.A. -- Hugo L. Black: [Inaudible] Hiram W. Kwan: -- Section 212. Hugo L. Black: Are you reading from one of the brief. Hiram W. Kwan: No. Potter Stewart: It is on page 2 and 3 of the Government's brief. Hiram W. Kwan: Yes. I say that as far as the exclusion is concerned where you have the alien outside of the United States, Section 212 would apply and he may not be entitled to notice in that instance. However, whether the deportation action as in this case, the controlling section is 241 or Title 8 United States Court Annotated, Section 1251. In Section 1251 (a) (1), the -- any alien in the United States shall upon order of the Attorney General, be deported who, subsection (1) at the time of entry, was it -- within one or more of the classes of aliens excludable by the law existing at the time of such entry. So it incorporates the exclusion statute by reference. I think that -- William J. Brennan, Jr.: Well, not by Congress. This is arguing that the [Inaudible] Hiram W. Kwan: I would say the case law requires notice and the alien being in the United States, I think would be entitled to due process of law and thus be given notice. William J. Brennan, Jr.: Of what? Hiram W. Kwan: Notice of the charges against him. The grounds of deportation but -- Speaker: [Inaudible] Hiram W. Kwan: Say again? Speaker: [Inaudible] Hiram W. Kwan: I don't think that he was given notice in this particular case if we hope that psycho -- Speaker: [Inaudible] Hiram W. Kwan: No. I don't raise any question of irregularity there. Speaker: [Inaudible] Hiram W. Kwan: Yes. Potter Stewart: You mean notice that homosexual activity would be the basis for deportation. Hiram W. Kwan: Yes. In other words -- Potter Stewart: And you say -- Hiram W. Kwan: -- notice of the statute, the basis of the Deportation Acts. William J. Brennan, Jr.: Well, is this one [Inaudible]? Hiram W. Kwan: Yes. William J. Brennan, Jr.: And in looking at 41 [Inaudible] would know generally [Inaudible], they might be deported [Inaudible] by whatever the law was existing at the time of the entry but he doesn't [Inaudible] what the law was, [Inaudible] Hiram W. Kwan: Yes, that is my point. I say that the alien in the United States, physically present within United States, is in a different position than the alien outside of the United States. Hugo L. Black: You say he's entitled to due process -- Hiram W. Kwan: Yes. Hugo L. Black: -- if the case is upheld? Hiram W. Kwan: Yes sir. Hugo L. Black: And that he is -- deporting him, the statute must be not be so vague that it would be held bad under the Due Process Clause. Hiram W. Kwan: Yes. That is my -- Hugo L. Black: It might that -- although that might not be true so far as admitting him into the country. Hiram W. Kwan: That's correct. If -- Hugo L. Black: That's the basis of your argument. Hiram W. Kwan: That is the basis of my argument. Furthermore, an alien outside of the United States has no cause of action. An alien of -- William J. Brennan, Jr.: [Inaudible] is that it? Hiram W. Kwan: An incorporation of all of 212 which -- William J. Brennan, Jr.: [Inaudible] Hiram W. Kwan: -- which consists, including 212 (a) (4) which consist of 33 different subsections, 33 different basis of excludability into Section 12 -- 1251 U.S.C.A -- William J. Brennan, Jr.: Now, let me ask you -- Hiram W. Kwan: -- (a) (1) William J. Brennan, Jr.: Now suppose instead of [Inaudible] you would still argue the same -- Hiram W. Kwan: Yes, I would still argue that the term psycho -- psychopathic personality is void as being vague. William J. Brennan, Jr.: Well, I don't seem to [Inaudible]. Hiram W. Kwan: Well, I'm trying to -- William J. Brennan, Jr.: It wouldn't satisfy you if Congress had -- had spelled them out. Hiram W. Kwan: I would say if Congress spelled it out so that the statute was clear on its face so that men of common intelligence -- William J. Brennan, Jr.: Now, what do you mean -- Hiram W. Kwan: can determine that. William J. Brennan, Jr.: It was cited 33 subsection. Hiram W. Kwan: No, that would not satisfy you. William J. Brennan, Jr.: We get right back to the alleged vagueness of the psychopathic personality in 212 (a) (4). Hiram W. Kwan: Yes. I think that the Government is misapplying Section 212 (a), namely, the exclusion statute in this particular case because the case is labeled as a deportation case, that the respondent was physically present here in the United States. He was lawfully admitted so -- William J. Brennan, Jr.: So what you're saying is, it would be alright just to say psychopathic personality for purposes of admission but for purposes of a deportation, it would have to meet psychopathic personality including homosexuality. Hiram W. Kwan: No, something more -- whatever would be sufficient to give him due notice. William J. Brennan, Jr.: Well what -- what would satisfy you -- assure that the classification of homosexuality is -- Hiram W. Kwan: I think sexual deviant would be too broad a term. Certainly, the Government has in its own brief -- William J. Brennan, Jr.: [Inaudible] Hiram W. Kwan: I think I would. However, a setting out with specificity is not required, of course. However -- Hugo L. Black: You would have a hard time getting away from that. As I understand what you're arguing is this that is just the same as though they had said here that he could be deported if he was a psychopathic personality. And you say that Congress having said that, that's too vague to give him knowledge -- I wonder if -- deport him for being -- engaging in the conduct he has. Therefore, it violates due process just the same as the illustration I gave as it's been written in ancient [Inaudible] Hiram W. Kwan: Yes sir. Hugo L. Black: And you claim a that he'd be again in and come for a country as a man, as a man admitted that he's entitled to due process of law under our cases -- Hiram W. Kwan: Yes. Hugo L. Black: And that would violate the due process -- Hiram W. Kwan: I think the case -- William J. Brennan, Jr.: -- if it's too vague. Hiram W. Kwan: I think the cases are uniform in that regard. They may not be -- an alien in the United States may not be entitled to substantive due process, but I believe the cases are uniform in granting him procedural due process. I notice as such would be procedural due process. I think it's very, very important in this particular area because you're dealing with the most important right, that the right of remaining here in United States, your deportation amounts to banishment and -- and then in this particular area, you have perhaps five million aliens in United States, and most of the aliens are handicapped and that they have a lesser foundation in English than a person that was reared here or that has been here for a considerable period of time. Hugo L. Black: What case do you rely on for your second prong of your argument, he being here in this country and living as a resident alien he's entitled to due process the same as anybody else procedurally speaking. Have you any case on which you rely to say that? Hiram W. Kwan: Yes, there are a substantial number of cases, the Bridges versus Wixon case. Hugo L. Black: Bridges? Hiram W. Kwan: Yes. I would say that substantially all the cases that have held on that point have said that the -- a lawful permanent resident was entitled to procedural due process. Kwong Hai Chew, 344 U.S. holds that, Fong Haw Tan specifically held that, that was in 333 U.S. I think that -- Arthur J. Goldberg: The basis the Government [Inaudible] Hiram W. Kwan: That's correct. Arthur J. Goldberg: [Inaudible] Hiram W. Kwan: Oh, the Fifth and the Fourteenth, yes. Hugo L. Black: That was first -- that was held way back in Yick Wo versus Hopkins, wasn't it? Hiram W. Kwan: Yes and the Kwong Hai Chew is the late case in that respect. I say that this Section in reference to psychopathic personality is void for vagueness because it is uniformly been so held. I think the legislative history is of that particular section indicates that. Prior to that time, the Section was constitutional psychopathic personality. I suppose constitutional meant something that was born as compared to an environmental influence, but the authorities especially on medical authorities are greatly at variance as to this term of psychopathic personality. Our expert indicated that the respondent was not a person within that area. I think that the government expert would have probably held independent of his instructions to the same effect, that he was not a psychopathic personality. Your experts does vary in the case of U.S. versus Flores cited in both briefs. Judge Frank discussed that in the concurring opinion, however, that case involved a perjury conviction. I think that the statute should be held unconstitutional because there's no particular standard with which that -- men of common intelligence can be guided that is set up in this bigger statute. Government counsel would have the Court incorporate the legislative history into the section to give it. I don't think that would be a good rule because in my -- in my view, the statute should be complete by itself, and if there's some interpretation, some slight interpretation, then perhaps the legislative history should be looked but not to have say detail as far as the statute is concerned and the entire body of the section in legislative history. As far as the entry is concerned, I think that the law is rather clear on the fact that a reentry carries with it the same type of prejudices or the same type of legal effect that a new entry would have. I would like to see that changed. Certainly, once an alien comes to United States, he -- he gets roots here and there are substantial rights that should be protected. Potter Stewart: That's a matter though a very clear statutory definition of the term entry, is it not? Hiram W. Kwan: Yes, I think so. If the entry is a voluntary one, then the alien exposes himself to a greater risk. The Ninth Circuit in its opinion said, however, that the second entry did not serve to wipe out or wash out his rights of due process as counsel for the Government seems to indicate. Thank you. Earl Warren: Very well.

Earl Warren: Mr. Winston, you may proceed. Robert T. Winston, Jr.: Mr. Chief Justice, and may it please the Court. As stated by Mr. Kramer, there are two questions before the Court. The first question involves the controversy between the trustees and Benedict and the second question involves the controversy between Benedict and the union. As noted, if we are in error on the second question, we are wrong, then the first question would become moot. But we think our position is sound in this case so we don't think that the first question will become moot. But in neither event, I agree with Mr. Kramer that it is a question of importance and that this Court should determine it. The first question involves the trustees' claim against Benedict for royalties that the trustees claim are due and owing and for royalties which the trustees claim they had a vested right to. Before discussing that, we come back to the initial contract, that is the contract of 1950 between Benedict and other operators and the union, the National Coal Contract. This contract is an integrated contract. Its provisions are interdependent. A portion of the contract provides for this trust fund. This contract in that portion also sets out Benedict's obligations of payment to the trustees and sets out the method of computation when the obligation accrues and so forth. This contract also contains the settlement of Local Dispute Section, which the Court has considered in the first argument and it is a section that sets out the various steps for the settling of these local disputes and troubles. The key part of this first contract, for our consideration, is Section 3 of the Miscellaneous Clause, which is already been pointed out to the Court. The pertinent part of -- of this clause, rather this clause itself reads as follows, Section 3, “The contracting parties agree that, as a part of the consideration of this contract, any and all disputes, stoppages, suspensions of work and any and all claims, demands or actions growing therefrom or involved therein, shall, by the contracting parties, be settled and determined exclusively by the machinery provided in the settlement of "Local and District Disputes Section of this Agreement, or, if national in character, by the full use of free collective bargaining as heretofore known and practiced in industry.” This contract also hung as a clause which we think is the key to the whole issue and that is the interdependent clause. It reads as follows, “This Agreement is an integrated instrument and its respective provisions are interdependent and shall be effective -- Speaker: (Inaudible) Robert T. Winston, Jr.: I was reading from page 2 of my brief, sir, in the record. It would be page 107A, page 2 of my brief, page 107A of the record. Now, our position in this case is simple. Well, it is that the trust is the creature of this contract. The trustees' rights are derivative from this contract. Whatever you may call the trustees or whatever position they may claim that they are occupying in this lawsuit, they are still in the position of beneficiaries of this contract when we consider their rights. Since they are the beneficiaries of this contract, they would then be subject to the same defenses and in regards to their claims for royalties that Benedict might assert against the other contracting party, the union. This defense would include offset or failure of consideration or non-performance which we are concerned with here. Now, in the case at bar, the union breached the very provision, that is Section 3 of the Miscellaneous Clause, that was stated to be a part of the consideration of the contract. Now, the trustees, on the other hand, insist that they are merely trustees seeking to recall a trust property, title to which has vested in them. And that brings up the other key question and that is has title to this money sought vested so as to preclude the defenses that Benedict might assert against the union. We state that as to this $76,000, title has not vested. Our reasons are these. In the first place, the money before title can vest in -- in the trustees must be due and owing. Now, to be due and owing, the union, at the time that it is alleged to be due and owing, what the law at the time of the production of the coal upon which the amount is computed, must be in performance of its interdependent obligations to bid in this case, the union was not. In the first strike activity that was a violation of the contract started in the early part of April 1950. To be due and owing, the amount computed from the production of coal must also be free from claims or rights of settle. In this case, it was not. Earl Warren: This happened with contract. Robert T. Winston, Jr.: No, sir, that's my argument, sir. The contract [Laughs] merely says, title vest in money in two situations -- Earl Warren: Yes. Robert T. Winston, Jr.: -- that is money paid, one, which is not in issue at this time, and two, money due and owing. Therefore, our position is the key is whether at the time the money is due and owing. We say at the time it is not due and owing or the right of the trustees to assert that it is due and owing is limited because at that time, the union was not in compliance with an interdependent obligation. That is our position, sir. Hugo L. Black: Can I ask you a question? Robert T. Winston, Jr.: Yes, sir. Hugo L. Black: Suppose the union had given something or note of $100,000 and the company was $100,000 behind on payment to this fund, did they told you that it's not due on this note to be offset? Robert T. Winston, Jr.: No, sir, because Benedict would owe the union $100,000 and owe the trustees $100,000. No, sir, that would not. Hugo L. Black: Benedict. Robert T. Winston, Jr.: I understood you say that the -- Hugo L. Black: Did the union itself at that time has given a note of $100,000 in five months to Benedict? Robert T. Winston, Jr.: Oh, I see. I had my parties backwards. Hugo L. Black: And the union has -- has come to Benedict saying, “I'm owing you a $100,000 at all the time. And if I'm sued for the $100,000 because,” could you offset that from (Inaudible) Robert T. Winston, Jr.: No, sir, for this reason. Hugo L. Black: Why? Robert T. Winston, Jr.: Because that note doesn't come under the terms of this contract. That would be a separate contract between the union and Benedict. Earl Warren: Maybe the then -- for an obligation that came out of the contract before this happened. Felix Frankfurter: Suppose, the note was given (Inaudible) suppose this note, this hypothetical note was given in settlement of a prior claim for illegal stoppages in violation of the interdependent clause? Robert T. Winston, Jr.: That's right. That's a good question, sir. I would say yes, [Laughter] yes. Felix Frankfurter: What -- yes, yes means what? Robert T. Winston, Jr.: Yes means it could be offset because if the note had been given because -- because the union had violated another provision of the contract, then we're getting back to the contract. It will be a little different as to whether a note was given or whether a court determines that an amount is due. We get back to the same result. Earl Warren: Suppose the note said that they would pay $100,000 in, let us say, three years, could they hold up the -- the 30 cents per ton for three years until that note was paid? Robert T. Winston, Jr.: It would not be a material claim until three years. I'd say no, sir. Earl Warren: And only on the ground it was at all? Robert T. Winston, Jr.: It -- yes, sir, if presently due and owing, yes, sir. I think -- so that wouldn't be a practical -- excuse me. Hugo L. Black: So you think Benedict owed them 30 cents a ton? Robert T. Winston, Jr.: I say they owe that to the trustees if at the time of the production of coal, the union is in compliance with its obligations under the contract, which obligations were given as a part of the consideration for Benedict's promise to pay to the trustees. Hugo L. Black: Your argument finally is there that the trust fund can be made to pay damages on account of the union's conduct even though it's not in the negative with the particular amount due or to the fund. Robert T. Winston, Jr.: That, Mr. Justice Black, is rather stressing things. I did not argue that, no, sir. It may affect the satisfaction of the claim. But it would not in the end enforcement of the claim. Now, the way we have it here, the District Court said that the union must pay the damage into court and this damage money will first be used to satisfy the claims of the trustees. Hugo L. Black: Did you get a judgment against the union itself? Robert T. Winston, Jr.: Yes, sir. Hugo L. Black: Is it collectible? Robert T. Winston, Jr.: I think it is, sir. I'm sure it is. There's been no intimation that the United Mine Workers doesn't have the money. I'm sure they do. So -- Hugo L. Black: (Voice Overlap) both of that in and of itself? You just had a -- Robert T. Winston, Jr.: Yes, sir. But the -- the judgment which we recovered against the union is used as an offset, it's used to pay the claim. Hugo L. Black: Used to pay the claim due to the -- Robert T. Winston, Jr.: Trustees. Hugo L. Black: -- fund. Robert T. Winston, Jr.: Yes, sir. Under the way it was handled by the District Court, the application of funds. That's the way the offset was -- was handled procedural matter, sir. Now, sir, getting back to our position -- William J. Brennan, Jr.: It went in that? Robert T. Winston, Jr.: Yes, sir. William J. Brennan, Jr.: One other thing. Is there anything in the record, indicate when the $76,000 obligation arose as to coal produced in -- with reference to the time of the first strike, was before or after that date? Robert T. Winston, Jr.: There is an exhibit, Your Honor, that indicates it. Benedict started getting behind in October 1950. There's also an exhibit file by Mr. Ryan which shows the production and showed payments. I have reason to look at the first exhibit which would indicate it. You, gentlemen, have the Mr. Ryan's exhibit, I have not recently looked at that, sir. I would refer the Court to Mr. Ryan's exhibit -- William J. Brennan, Jr.: Well -- Robert T. Winston, Jr.: -- the exact (Voice Overlap) -- William J. Brennan, Jr.: -- would your position be any different if the full amount of this claim of seventy six odd thousand dollars were due and owing the trustees before the first strike? Robert T. Winston, Jr.: Yes, sir, it would be different. William J. Brennan, Jr.: It would be different. Robert T. Winston, Jr.: Yes, sir. William J. Brennan, Jr.: You -- in that situation, you would -- Robert T. Winston, Jr.: For this reason. William J. Brennan, Jr.: -- would not have settled. Robert T. Winston, Jr.: Well, with this qualification, if the union had been in compliance at the time the $76,000 accrued. William J. Brennan, Jr.: Yes. Robert T. Winston, Jr.: This was a continuing account and of necessity it began in March of 1950, because that's when the contract started, and it continued up until July of 1953. The strikes were also a continuing pattern of activity. The first damaging strike occurred in April. I think -- William J. Brennan, Jr.: This is the month after -- Robert T. Winston, Jr.: -- I am safe to say that the first of the damaging strikes occurred prior to the time that any of this account accrued. Mr. Ryan's exhibit would correct me if I am wrong. I think I am safe in saying that. William J. Brennan, Jr.: But if that were not the fact, then it had -- this obligation had accrued before the first strike, did I understand you could say then you do not believe you could assert to settle? Robert T. Winston, Jr.: I do not take that position, sir, for this reason. The money would be due and owing if, at that time, the union was in compliance and if, at that time, there was no claim to offset. And therefore, title would vest at that time. My position is that at the time the production of these coal occurred, the union was not in compliance and there were rights to offset and therefore, the money was not due and owing and there was not any vesting of trustees' rights at the time of computation of production of coal. William J. Brennan, Jr.: Well, then as -- then as the record comes to us so we'd understand that as a fact, the finding is that at the time this money became due and owing, the union was in default. Robert T. Winston, Jr.: Your Honor, to be fair, that matter was not gone into at the lower courts. In preparing for trial in this Court, I thought of that point and I checked what record I had, and the record that I had indicates the first strike activity occurred prior to the time that this particular money or the right to this particular that the coal produced coming this particular money was produced. Mr. Ryan's exhibit would be precise on this. If I'm wrong that may limit a little bit, if I'm wrong on my facts. Now, sir -- Speaker: (Inaudible) Robert T. Winston, Jr.: Coming back to that point, sir, the trustees claim that the sole condition precedent or condition to the creation of the trust (Inaudible) was the computation of the production of coal or was the production of coal. I say that was error. To adopt that, you disregard the other parts of the contract, and we must consider the whole contract. We state that other conditions to the creation of the trust ray of first union performance at or prior to the time of the production of coal and second, that this money be free from claims of offset. William J. Brennan, Jr.: May I ask in this regard, Mr. Winston? Is there some time schedule in the contract with -- dealing with the detail of how payments are made? Robert T. Winston, Jr.: Yes, sir. The -- it says the obligation shall commence at the date of the signing of the contract, payment shall be made on the 10th day of each month and each succeeding days, sir. William J. Brennan, Jr.: And this then payment is in respect to coal produced in the previous month, is that it? Robert T. Winston, Jr.: Yes, sir. In respect -- that is the provision of the contract in all that, sir. Earl Warren: I'm talking about -- did the company hold that payments looking towards the eventual setoff? Robert T. Winston, Jr.: Your Honor, in the beginning I don't think they were looking towards the eventual setoff. Earl Warren: (Voice Overlap) Now, let me ask -- let me ask you this one, how long had it been since the company had made payments on -- to the trust fund prior to the -- the judgments in the trial court of this case? Robert T. Winston, Jr.: Your Honor, they made some payments in 1953. I believe the exhibit will show probably in June, if I remember it right, the suit for 1954. Earl Warren: When was the judgment? Robert T. Winston, Jr.: 1956. Earl Warren: And there was nothing paid under this trust agreement from -- from June 1953 until 1956? Robert T. Winston, Jr.: That's right. The truth of the matter, there's no money to pay it, sir. Earl Warren: I beg your pardon. Robert T. Winston, Jr.: I say that the fact of the matter was there was no money to pay it. The operating statement show that Benedict was going busted during -- was going insolvent during this period. Hugo L. Black: Was he in business? Robert T. Winston, Jr.: What's that, sir? Hugo L. Black: Was he actually engaged in business all over the big money, is that what you mean? Robert T. Winston, Jr.: Yes, sir. The operating statement show that some months Benedict was making money and some months they were not. I could go out set of the record and give you a more complete picture of that but I'll try to stick to what the record shows. Felix Frankfurter: Were -- were money is owing in the trust fund that exceeded the setoff of the complaints? Is the said officer saw all the trust fund obligations that were otherwise used that would -- that would otherwise the committee pay? Robert T. Winston, Jr.: At the District Court it did, sir. However, the Circuit Court, we bought for force action on some 11 strikes. Felix Frankfurter: That was cut down. Robert T. Winston, Jr.: They cut us down to eight strikes and cut us off -- Felix Frankfurter: But the period for which suit was -- was the period for which setoff was claimed been granted by the District Court? (Inaudible) what would have been produced, the payment that would have been used over the period in question? Robert T. Winston, Jr.: Yes, sir. Earl Warren: May I inquire in this curiosity? Approximately how much coal Benedict mined in those three years? Robert T. Winston, Jr.: Let me consult the record, sir. It was a considerable amount. William J. Brennan, Jr.: Would it help you at page 15A, Mr. Winston, the allegation is the complaint in this regard?s Robert T. Winston, Jr.: Yes, sir. The complaint was, as I recall, close to correct on tonnage. Earl Warren: Thank you. Robert T. Winston, Jr.: Yes, sir. Between March the 5th, 1950 and September 30, 1952, production 459,000 plus, between October 1st 1952 and July 31st 1953, production was 103,000 plus. Page 151 of the record also shows the stipulation that indicates that, sir. 150A or 151A, that shows the stipulation of the man of the coal mine doing the first period, March 5th 1950 to September 30th 1952 was 467,000 tons plus and the second period was 94,000 tons plus, that is October 1st, 1952 through July 1953. Getting back to the points and issues, the trustees also claim that the effect of this offset is to revoke a vested trust. We state that it is not because unpaid royalties have not vested, if not due and owing, because of failure of consideration, non-performance or right of settle. We also state that the trustees' interpretation of the term “interdependent” is rather strange. They insist in their briefs that term means that all operators sign similar contracts, and that this is an entire contract for all operators. We think that term is the key to the case and merely means that all of the terms and all of the obligations are interdependent and the obligation, of course, of Benedict to have money due and owing the trustees is dependent upon the union being in compliance. The -- nor do I see this as a matter of shifting responsibility for union acts to the trustees. The trustees are not responsible for union acts. However, the trustees' rights to this money is limited by whether or not the union complies with its promises under the contract. Simply, our position is the trustee is the beneficiary of the contract and his claim that he has a vested interest. He is subject to defenses that Benedict may have against the union. I think Mr. Frankfurter in his question to Mr. Kramer very directly asked to both key to the case although this portion of the case when Mr. Frankfurter asked is the creation of the trust to be severed from the rest of the contract. The trustees' position in this case is that it is to be severed from the rest of the contract. Our position is most emphatically that the creation of the trust is not to be severed -- severed from the rest of the contract for the very reason that the contract itself says that it is an integrated instrument, its provisions are interdependent and Miscellaneous Clause 3 specifically says, that as a part of the consideration of the contract or stoppages and so forth will be settled by the contract machinery. Earl Warren: How could you settle the stoppage if there was a stoppage? Robert T. Winston, Jr.: Stoppages or strike, sir. Earl Warren: I beg your pardon? Robert T. Winston, Jr.: What's the question? Earl Warren: Well, I know but you say that this -- this machinery shall -- shall govern all stoppages. Now, the machinery doesn't say anything about any stoppage. But why would it be necessary to say the machinery would be used to -- to remedy any stoppages if the contract didn't contemplate that there might be stoppages? Robert T. Winston, Jr.: Sir, I think the contract contemplated that there might be stoppages but it did not omit stoppages. The fact that the contract contemplates stoppages doesn't mean that it intends stoppages to be within the contract. Earl Warren: No, but -- Robert T. Winston, Jr.: You can contemplate breaches, sir. Earl Warren: Yes, but it -- it -- I understood you to say that if there was a stoppage, it must be -- it must be remedied -- Robert T. Winston, Jr.: Yes. Earl Warren: -- through this procedure. Robert T. Winston, Jr.: That's correct, sir. Stoppages and other disputes. Earl Warren: Yes. Robert T. Winston, Jr.: The -- the four section -- Earl Warren: Well, then -- then doesn't the -- doesn't that use of the word “stoppages” there imply that -- that under this -- this contract there -- there might be stoppages? Robert T. Winston, Jr.: It realizes that the union might break this contract and have stoppages. Yes. Earl Warren: Well, then, if they do, the procedure would be, I take it, as you argued that -- that they would proceed under the -- under the procedure set out in this contract to work out at the -- Robert T. Winston, Jr.: They end it. Earl Warren: -- company. Robert T. Winston, Jr.: Yes, sir, they would. Yes, sir. Earl Warren: Now, where do you -- where do you get the idea then that they -- that they cannot strike? Robert T. Winston, Jr.: I get that idea -- Earl Warren: (Voice Overlap) that is contemplated in your contract. Where do you get the -- the idea from the contract that they cannot strike? Robert T. Winston, Jr.: Mr. Justice, my position is that the contract may contemplate that there will be stoppages, but it doesn't have to say that stoppages are permitted under the contract. You can contemplate that -- Earl Warren: (Voice Overlap) but you've got -- Robert T. Winston, Jr.: Sir. Earl Warren: -- you've got one clause in there that's very definite which says that the -- the previous non-strike provision of the old contract is cancelled and annulled, vacate it and whatever other language they -- they use. Robert T. Winston, Jr.: Yes, sir. Earl Warren: So, so far as that is concern, they do have the right to -- to strike. And unless your other provisions of the contract restrict them to do this procedure that you have set out and I take they would have the right, do they not, to -- to strike and have the grievance -- grievance settled under that procedure? Robert T. Winston, Jr.: Your Honor, my answer to that is this, the effect of the cancellation clause first is to put the parties in the same position as though they had been no cancellation clause and second it restores the right to strike as to matters that are not cognizable under the Dispute Section. The key matter is this, sir. I do not say that a mere strike is a breach of the contract. That is not my position. The key is the purpose of the strike. I do say that a strike for the purpose of settling a dispute is a breach of this contract. It is a breach of Section 3 of the Miscellaneous Clause which says that all disputes, stoppages, suspensions, claims, demands will be settled and determined exclusively by the machinery provided from the settlement of Local And District Dispute Section. I see the reason for your honest question. I say there is a distinction between a strike for a dispute settling purpose and a strike which has its -- has its purpose something else or the strikes which are for dispute settling purposes. Of course, at this time, we -- we are getting on to the -- the second question that we have, sir. And I'll continue in this line. Earl Warren: (Inaudible) of your own time. Robert T. Winston, Jr.: Yes, sir, I'll continue on this line, sir. Hugo L. Black: Before you leave that, would you mind (Inaudible) This is settled and determined (Inaudible) by the machinery, by the settlement of Local Dispute And District Dispute Section. Was there any effort made to proceed under that section and to leave aside the (Inaudible) I'm not talking about now what else there is. Robert T. Winston, Jr.: Yes. Mr. Justice Black, we have eight strikes, the facts in those eight strikes are somewhat different. In some of them, the strike occurred before there was anything taken up with management. In others, the matters in dispute were taken up with management or were discussed with management prior to the actual strike. But in all of them, it was obvious that the strike was called for the purpose of enabling the union to get what they wanted. Hugo L. Black: That's right. Robert T. Winston, Jr.: Yes, sir. Hugo L. Black: Was there any refusal on the union or on your (Inaudible) at the suggestion of the other party to do any of the things that are set out in the settlement of local and district dispute that the way to settle those. Robert T. Winston, Jr.: There was a refusal to arbitrate on the part of the union agents. There was not a refusal to go to through the initial processes. Hugo L. Black: Well, the arbitrate which falls to that kind. Robert T. Winston, Jr.: I'd state that that would be the fourth or the fifth step in the procedure. Hugo L. Black: Fourth and fifth in (Inaudible) you're going to be designated (Voice Overlap) -- Robert T. Winston, Jr.: Yes, sir. Hugo L. Black: (Inaudible) Robert T. Winston, Jr.: I think the term was used to arbitrate. I think that held as the fourth and the fifth steps, sir. As to the first, second and third steps, as I state the facts are little different in each one but generally, if -- steps were taken under the first, second and third steps. Hugo L. Black: Was the -- was the complaint based on their failure to do this on the facts merely that they struck in contrary to (Inaudible) Robert T. Winston, Jr.: It boils down -- various complaints were made, sir. Hugo L. Black: I mean your cross-complaint. Robert T. Winston, Jr.: Yes, sir, in the cross-complaint. It boils -- Hugo L. Black: They have breached the contract. Robert T. Winston, Jr.: Yes, sir. They had breached the contract because they used strike methods for settling claims instead of contractual methods. Hugo L. Black: Was there any -- was there a charge as to what were -- in what way they -- except by striking, I understand that -- Robert T. Winston, Jr.: Yes, sir. Hugo L. Black: -- they refuse to abide or follow the proceedings one, two, three, four and five for that breach alleged? Robert T. Winston, Jr.: Not -- not in those steps. We alleged that they refuse to arbitrate and to follow the contractual provisions. The evidence shows that in most of the strikes anyhow the first, the second, probably the third steps we're going into. Hugo L. Black: Question could divest -- Robert T. Winston, Jr.: I'll see your question, yes, sir, it's a good point. Hugo L. Black: -- entirely on the premise, it was the violation of the contract to strike or is it based in part on charges and findings and proofs that there was a breach of this Agreement to follow the Disputes Section aside from the fact that they struck it. Robert T. Winston, Jr.: Yes, sir. That -- that also was part of the charge. I mean part of the complaint. Hugo L. Black: Do you think your judgment is based on findings that they've refused him to do one, two, three, four or five? Robert T. Winston, Jr.: I think the judgment is based on the fact that they used strikes to settle the disputes in derogation of Section 3. I think that's the gist of the judgment. Hugo L. Black: But that -- that was I thought. Robert T. Winston, Jr.: Yes, sir. Hugo L. Black: I'm just trying to be sure. Robert T. Winston, Jr.: Yes, sir. In this type of cases, you have a multitude of charges and allegations. When you get down to it, I think the basic issue is was the use of strike -- of a strike for dispute-settling purposes for violation of Section 3, to me, that's the gist of this case, the key to this case. As I stated, we state that the use of strikes for dispute settling purposes -- Felix Frankfurter: Have you finished with the -- with the first -- problem with the first case, of the -- Robert T. Winston, Jr.: Yes, sir. I've finished -- Hugo L. Black: Well, I just wouldn't know. Robert T. Winston, Jr.: If the Court had any question, sir -- Hugo L. Black: (Voice Overlap) -- Robert T. Winston, Jr.: -- I'd be glad to answer them. Hugo L. Black: -- you had yourself. Robert T. Winston, Jr.: I wound up that part, sir, when I -- I cited the question that you made about the severability, our position on Mr. Kramer's position. William J. Brennan, Jr.: Have you wound up also your consideration of the application of Section 301 (b)? As I understand it, there's another argument here based on Section 301 (b) of the Taft-Hartley Act, namely, that since that section says that any money judgment against the labor organization shall be enforceable only against the organization and its assets, the words to that effect, that this is itself a bar to a -- the setoff that you were given below.I think that's what the trustee is arguing. Robert T. Winston, Jr.: They argue that, yes, sir. William J. Brennan, Jr.: Yes. Robert T. Winston, Jr.: I do not follow them. That point is moot in this case because at this point, at least, because the union is to pay into the Court the amount that Benedict might recover from the union and that money in turn, will be paid to the trustees in this case that is a moot point. But if -- William J. Brennan, Jr.: Well, let's see. In other words, you mean that the form that this took below was in effect is that you are collecting your judgment, Benedict is collecting its judgment from the union this 81 thousand odd dollars -- Robert T. Winston, Jr.: Yes. William J. Brennan, Jr.: -- or whatever finally is determined to be. Robert T. Winston, Jr.: Yes, sir. William J. Brennan, Jr.: And then the order is that the trustees' judgment against Benedict shall be paid out of that sum, is that it? Robert T. Winston, Jr.: Yes, sir. That's right. William J. Brennan, Jr.: And this is your answer then to the -- Robert T. Winston, Jr.: Yes, sir. William J. Brennan, Jr.: -- trustee. Robert T. Winston, Jr.: And I have proven my answer. That's also based upon the premise that you have satisfaction by withholding trustee payments. That's based on a further premise that the man that you -- the third point is that you have the judgment against, isn't solved. Now, there's no intimation of that in this record. I don't think it's solved. Furthermore, Section 301 (b) doesn't use the word, “satisfaction”. They used the word, “enforce” or “enforceability”. Now, there is a difference between enforcing a judgment and satisfying a judgment. Enforcing is a positive action to go -- collect money from somebody. William J. Brennan, Jr.: Well, whatever it may be, Mr. Winston, we have to determine this issue on the facts that you just given us, namely, that what the District Court did was to order the union to pay the amount of the judgment you obtained against the union in the Court. Robert T. Winston, Jr.: Yes, sir, we did. William J. Brennan, Jr.: And then, that ordered that the trustees' judgment should be collected from those moneys paid by the union of the Court. Robert T. Winston, Jr.: Yes, sir. William J. Brennan, Jr.: And it's upon that set of facts that we'll have to determine the applicability or non-applicability of this section. Robert T. Winston, Jr.: Yes, sir. As to this case that's a moot point. It's my point, sir. Earl Warren: Would it make any difference, Mr. Winston, if the union who was insolvent and couldn't pay its $81,000 in the Court? Robert T. Winston, Jr.: Yes, sir. It would make a difference because then -- Earl Warren: He would not be -- he would not be entitled to a setoff then? Robert T. Winston, Jr.: You would be. Earl Warren: He would be. Robert T. Winston, Jr.: For the purposes of argument, it would make a difference, but I still say you would be, sir. Earl Warren: In other words, if -- if the union could not pay anything into the -- into the Court satisfactory of the judgment, then your obligation to -- against the -- to the fund could still extinguished? Robert T. Winston, Jr.: To the extent of -- yes, sir. Yes, sir. It would because getting back -- the reason for it is we get back to the initial contract that the trustees had the position of third party beneficiaries. And therefore, their right to claim that is due and owing is subject to any defenses including offset which Benedict may have against the union. Thank you. Earl Warren: You may proceed. Robert T. Winston, Jr.: Yes, sir Earl Warren: (Inaudible) Robert T. Winston, Jr.: Yes, sir. If there were no further questions as to the trustees, then, sir, I'll proceed as to the other case, the other issue as to whether or not, there's been a breach of contract. Our interpretation of this -- Felix Frankfurter: That's the real question, isn't it, whether -- Robert T. Winston, Jr.: That's -- Felix Frankfurter: -- that is the real question whether a breach of contract not whether specifically there is an agreement not to strike. Robert T. Winston, Jr.: Yes. As -- Felix Frankfurter: That's the question. Robert T. Winston, Jr.: -- as the real question of this case, sir. Felix Frankfurter: Yes. Robert T. Winston, Jr.: Has no specific -- Felix Frankfurter: But my suggestion may -- may not come out or stay away, but it makes a lot of difference how you put a question. Robert T. Winston, Jr.: As the real question in this case, we state that a -- use of strikes for dispute-settling purposes is a breach of Section 3 of the Miscellaneous Clause. Now, as to -- to our -- noted an argument by Mr. Boiarsky, when he said that strikes don't settle disputes.And I take issue with that argument. I say, in this case at bar strikes did settle disputes, that the evidence was that the men would strike and the company would cave in. And in at least part of the strikes, the company got their way as evidence in this case that our committeeman was advised by a representative that he couldn't tell him to go -- to strike, “But if you don't get what you want, you know what to do,” and the strikes were suggested as a method of which the committee could get what they wanted, and that's this case. That fits the facts of this case. And that's why I say in this case strikes were used for dispute-settling purposes. Now, the question is that a breach of the contract. A correct interpretation of it would indicate that it is. We're going to basic matters. We first look to the purpose of an intent of the contract and the conditions around 1950. The contract itself says that its purpose is to promote and improve the industrial and economic relationship in the coal industry. Now, to settle local matters and disputes by grievance machinery is a promotion of the economic relationship. But to use strikes to settle these little disputes would certain not be a promotion of the economic relationship. We must also bear in mind that the parties to this contract, the people that had it -- the leaders of this union. They are enlightened and progressive labor leaders. Now, the leaders of the coal industry at that time were enlightened and progressive leaders, they had to be. They were looking for a progressive method of settling disputes. And therefore, when they wrote Clause 3, they meant to the operators to have a continuity of production so that they can meet the other competitive views to give the -- calls the construction that the union contends for or would not be a promotion, it would be a step backward. Felix Frankfurter: What do you make of the argument of Judge Madden that it's hard to believe that they deleted in Section 1 of the agreement what they restored in Section 3, as they deleted the no-strike and then have it come back (Voice Overlap) -- Robert T. Winston, Jr.: As -- Felix Frankfurter: -- 12 lines later. Robert T. Winston, Jr.: Yes, sir. Well, I don't think he completely covered it, sir. In the second -- in the first place, they did not completely restore in Section 3 what they deleted. They just wiped out all previous clauses and Section 3 was substituted therefore, and Section 3 would restrict strike activity only as to matters cognizable under the grievance machinery. It would not strike the restrict -- strike activity as to matters that do not come under settlement of Local Dispute Section. Felix Frankfurter: The -- cognizable under the specific machinery would be all but national strike, isn't that right? Robert T. Winston, Jr.: No. There would be others. Felix Frankfurter: There would be others. What are those? Robert T. Winston, Jr.: Memorial stoppages would be one. William J. Brennan, Jr.: What are they -- Felix Frankfurter: What -- what is that? Robert T. Winston, Jr.: Memorials. William J. Brennan, Jr.: What are they? Robert T. Winston, Jr.: In times of mine disasters quite often you have what is called, “memorial stoppages” and stop working for a day or two. It's quite frequent, sir. William J. Brennan, Jr.: Yes. Robert T. Winston, Jr.: In case this contract were extended, beyond the term of this contract, if it were extended, doing the negotiation -- negotiating period, if the men struck in behalf of the negotiation of the new contract that would become under. I'd say if a matter of safety arose, if the men quit work because they did not think the mine was safe, if that was the impelling motive, I don't think that would come along. Felix Frankfurter: My implication of that, that would be by implication, isn't it? Robert T. Winston, Jr.: No -- those -- those -- Felix Frankfurter: This -- this exception or this qualification was an implied qualification, is it not? The local versus national is explicit. The memorial, do I find that in terms that is used? Robert T. Winston, Jr.: You don't find that -- Felix Frankfurter: But that -- Robert T. Winston, Jr.: -- in agreement. I was merely answering your question sir -- Felix Frankfurter: Yes, but I wonder -- Robert T. Winston, Jr.: -- as to what other types of strikes. Felix Frankfurter: Yes. But I wonder where these other types come from. Do they come by virtue of the business practice of the industry which impliedly is ready to the contract, because Section 3 doesn't speak of it, doesn't it? Where did you get that from when you gave me the -- gave the answer to this? Robert T. Winston, Jr.: Because I lived in the cold fields, and I remember. [Laughter] It's not mentioned in the contract just from knowledge. Felix Frankfurter: Yes, but it's the practice of the industry. Robert T. Winston, Jr.: Yes, sir. Earl Warren: Is there anything in the record, Mr. Winston, to indicate why the no-strike clause was eliminated or must be taken just on the -- on a language of the (Inaudible) -- Robert T. Winston, Jr.: Mr. Boyle had some evidence regarding that negotiation, sir. I don't recall whether he is specifically said so or not. He did say they were cancelled. He gave -- he did state that thereafter, they had the right to strike which, of course, I would consider conclusion. Felix Frankfurter: Do you accept -- do you accept Judge Madden's account of the history of (Inaudible) Robert T. Winston, Jr.: The portion that I remember, I think it's correct, sir. Earl Warren: Who is Mr. Boyle? Robert T. Winston, Jr.: He was an administrative assistant to Mr. Lewis. Hugo L. Black: Is he the only one testified on that point? Robert T. Winston, Jr.: To my knowledge he is, sir. Now, coming back, sir, Your Honors wished me to go ahead to the interpretation not only do we consider the purpose and intent of the contract, it's fundamental also that effect must be given to all the language of the contract. Now, I am not unmindful of Section 1 in the Miscellaneous Clause which says that all previous no-strike clause has been cancelled, but I am mindful of the positive provisions in Section 3 of the Miscellaneous Clause and I say we must give meaning to Section 3 if we can and if we can do so without derogating from other sections or conflicting from other sections. We can do that. We can also give meaning to Section 1, as I have already explained. To cancel a right to strike is not to state the opposite. To cancel a no-strike clause is not to state the opposite, it's merely to put them in the position as though there had been no former clauses or, as I stated, the right to strike is retained as to other matters that are not cognizable under this settlement of dispute section. A cancellation of a previous clause is not a positive assertion that you can strike for any matter, whatsoever. Or that you can strike for any matter that must be taken up as provided in Section 3. I refer so to the interpretation by the parties. The brief filed by the union disagrees with me, but I still insist that the letter is contained on page 12 of my brief. It was set in 1951 by the union officers to all of the locals and members of the United Mine Workers, indicate that at that time, the union officers considered that an unauthorized strike was a breach because in that letter it said, "Unauthorized strikes reflect discredit upon our organization 60-year record of honoring contractual provisions and result unstrained labor relations between the parties signatory to the joint agreements. Felix Frankfurter: Mr. Winston, Judge Madden would say to that, I think, in light of what he does -- the Section 3, the gentlemen's agreement and as gentlemen they're not (Inaudible) for us, but it has no legal significance, what do you say to that? Robert T. Winston, Jr.: Mr. Justice Frankfurter, I'd say to that, I believe in gentlemen's agreements, let's put that first, but I'd still think it -- well, a gentlemen's agreement should be enforced as well as anything else, but the question is whether it's enforceable. I think Section 3 answers that because Section 3 expressly says the contracting parties agree that as a part of the consideration of this contract, any and all disputes, stoppages, suspensions of work and claims and so forth shall be by the contracting parties settled and determined exclusively by the machinery provided. I say that when Judge Madden calls that a mere gentlemen's agreement, he is, in effect, giving no effect to that clause and the fundamental principles require that effect be given if he can't. I am aware of that decision NLRB versus UMW of Justice Madden's opinion. That case and this case, are probably the reasons that we are here today, that is we've got two Circuit Courts of Appeals that came to different conclusions. I realize that this Court is not bound about the decisions of the two Circuit Courts of Appeal but, of course, their reasons and the collective thought of all those justices are persuasive. And I'd like to remind the Court this. That that was a split decision that only two justices came to that conclusion and the District of Columbia Circuit. In this case, of course, all three justices came to the conclusion, which I am insisting upon, and in addition to that, the National Labor Relations Board came to the same conclusion that we insist upon on this point. Hugo L. Black: Who is the other judge besides Judge Madden? Robert T. Winston, Jr.: Madden, Judge Fahy and Judge Burger was the dissenting judge, sir. Hugo L. Black: Both of them had been general counsels (Inaudible) Robert T. Winston, Jr.: That I don't know, sir. I don't know their previous connection. Hugo L. Black: My recollection. Robert T. Winston, Jr.: Yes, sir. Hugo L. Black: I know about the Judge Fahy. Felix Frankfurter: (Inaudible) Robert T. Winston, Jr.: Sir? Hugo L. Black: (Inaudible) Felix Frankfurter: One of them is (Inaudible) Hugo L. Black: Yes. Madden and (Inaudible) Robert T. Winston, Jr.: And in addition to that, if we give the cancellation clause the correct interpretation, we've got the three judges of the Fourth Circuit in the Hazel case and the three judges in the First Circuit in the Mead case, which came to the same conclusion that I am insisting upon. Hugo L. Black: Is that and it wouldn't be said that they came to the same conclusion or the same contract or the same facts in the First Circuit. They came to in the district (Inaudible) -- Robert T. Winston, Jr.: In the First Circuit, you did not to collective bargaining history. Hugo L. Black: You think that -- Robert T. Winston, Jr.: You -- you did have a contract with a -- did -- did not have a no-strike clause. Hugo L. Black: That's right. Robert T. Winston, Jr.: That's right. Hugo L. Black: Do you -- you think that the history is relevant as Judge Madden (Inaudible) I don't mean to have the same effect but do you think it can be ignored in his conclusion? Robert T. Winston, Jr.: Mr. Justice, I think you should consider the history but I don't think the history push -- strains the interpretation as far as the union claims or as Judge Madden claims. I think to push the history that far or to have the history push your conclusion that far, means you got to disregard the other Section 3 and just determine the gentlemen's agreement. Now, I think the basic fallacy of Judge Madden's decision is that he ignored Section 3 and merely termed it a gentlemen's agreement. Hugo L. Black: I didn't -- I didn't understand (Inaudible) Robert T. Winston, Jr.: Yes. Hugo L. Black: (Inaudible) Robert T. Winston, Jr.: He -- he realize that there was -- Hugo L. Black: -- no affect at all. Robert T. Winston, Jr.: To restrain the cancellation -- to clear the cancellation clause to the extent that he carried it and to the extent that these gentlemen are insisting upon, you've got to ignore Section 3. Hugo L. Black: I suppose people saying that they agreed or abide by (Inaudible) gets nothing further -- Robert T. Winston, Jr.: Yes, sir. Hugo L. Black: (Inaudible) history they -- he could not say if they meant by that agreement say, “We will not strike, although they might use the other method also and I suppose you could require them when you said nothing have been agreed (Inaudible) Robert T. Winston, Jr.: Yes, sir. Hugo L. Black: Your -- your argument is that the striking itself has to be as showed in the brief. Robert T. Winston, Jr.: The striking is a breach if it's for the purpose of settling. Hugo L. Black: Yes. Robert T. Winston, Jr.: If it becomes a method of settling other than the agreed on exclusive method, we must give that word, “exclusive” its proper meaning too, sir. During my remaining time, sir, I -- I'd like to cover a couple other points that Mr. Boiarsky brought up. Mr. Boiarsky stated that the parties could not have expressed their right to strike in more definite language and he was referring to the cancellation clause in the parties in the 1947 agreement. In other words, when you cancel an abrogate, previous no-strike clause, Mr. Boiarsky says you could have not have express the right to strike in more -- in more definite language. I say you could have. You could have come out and say it that all disputes will be settled by the machinery in the contract exclusively. However, you still you have your right to strike over disputes. If that has been what they meant and if that had been what they wanted, they could have used more definitive language to retain the right to strike for dispute-settling purposes. Hugo L. Black: Converse to that, it might be argued (Inaudible) would be no effect. It could be argued when they said this, they could have said also, all that -- although they have taken out the part of the strike, they were going to include in here that that is a breach of contract, if they did strike for these reasons. You -- if you could obey the language more definite one piece on either side. Robert T. Winston, Jr.: Yes, sir, he could. We said it could've, sir. Hugo L. Black: (Inaudible) Felix Frankfurter: But we have to make (Inaudible) Robert T. Winston, Jr.: Your Honors, I think it isn't -- it is very definite [Laughs]. I hope Your Honors will construe it the way it is. I mean the way we insist that -- what -- the way we insist, it contains the intended parties. Now, Mr. Boiarsky stated that the purpose of the union in 1947 and of course in 1950 was to avoid the impact of damage actions brought under 301, when that cancellation followed the Court. Well, at the same time, Clause 3 was put, which said, “You will settle disputes exclusively by the said machinery.” In considering the purpose of the contracting parties, you should consider not only the purpose of the union when they want to get out of -- avoid damage actions, but we must also consider the purpose of the operators. It is certain that the operators, when they put in Clause 3, but wanting some clause that would give them a continuity of operation pending this little local matters. And Mr. Boiarsky also cited the Lion Oil Company case versus -- NLRB versus the Lion Oil Company case to the effect that where there has been no expressed waiver of the right to strike, the waiver of the right doing such a period is not to be inferred. This case is good as far as it goes, but it does not fit this situation. In the Lion case, we had a dispute over the modification of the very terms of the contract -- correction, we had a strike over the modification of the very terms of the contract. And as the Court stated on page 340 of one Lawyers' Edition 2d, here, the strike occurred at a time when the parties were bargaining over modifications after notice and in accordance with the terms of the contract where there has been no expressed waiver of the right to strike, a waiver of the right doing such a period is not to be inferred. We do not believe that the two-phased provision for determine -- for terminating this contract means that it was not within the contemplation of the parties that economic weapons might be used to support demands for modification before the notice to terminate was given. Now, that is a key distinction, as I see it, sir. We do not say there is no right to strike during the negotiating process for the contract itself. And that's what the Lion case covers, the negotiating process for the modification of the contract itself. And the Court was careful to use that a waiver of the right doing such a period is not to be inferred. That is doing the negotiation period for a modification. We say that during the process of bargaining for a collective contract, labor should not give up his right to strike because it -- it is its best economic weapon. But when you come down to the case where after you have gotten your contract and going to work on it and then you have a dispute because some man is discharged for absenteeism. We say that the union has limited its right to strike over that little local matter, and that was their intent. William J. Brennan, Jr.: (Inaudible) Robert T. Winston, Jr.: The 1950 and the 1952, sir. William J. Brennan, Jr.: 1952? Robert T. Winston, Jr.: Yes, sir. William J. Brennan, Jr.: Well, it appears here there was a change in Section 3 on the 1952 contract exclusively was taken out of that (Voice Overlap) -- Robert T. Winston, Jr.: That's correct, sir. William J. Brennan, Jr.: Does that have any -- does that make any difference? Robert T. Winston, Jr.: No -- William J. Brennan, Jr.: (Inaudible) Robert T. Winston, Jr.: No substantial difference. I will state that I think the 1950 contract is stronger from my position. William J. Brennan, Jr.: (Inaudible) Robert T. Winston, Jr.: Yes, sir. William J. Brennan, Jr.: I notice also in respect to the 1952 contract in answer to one of your (Inaudible) Mr. Boyle, you identified him as one of the administrative assistants? Robert T. Winston, Jr.: Administrative assistant to Mr. Lewis, yes, sir. William J. Brennan, Jr.: Page 506A said now that was in the contract that both parties were expected to live up in those provisions. That's halfway down, pardon me. Robert T. Winston, Jr.: That was concerning the best efforts clause to use the best efforts -- William J. Brennan, Jr.: And also to Section 3, is this the answer to both Section 2 and 4, that's (Voice Overlap) -- Felix Frankfurter: Begin down the previous page. William J. Brennan, Jr.: Begins at page 505. Is that Section 3 with the Court's clerk? Robert T. Winston, Jr.: Yes, sir. That is Section 3. William J. Brennan, Jr.: Then he quoted Section 4. Robert T. Winston, Jr.: Yes, sir. William J. Brennan, Jr.: And he says, "Now, that goes on the contract that both parties were expected to live up to those provisions." Robert T. Winston, Jr.: Yes, sir. William J. Brennan, Jr.: Do you understand the (Inaudible) Robert T. Winston, Jr.: I would think so, because he's talking to the both of them. William J. Brennan, Jr.: There -- is there any place in his testimony where he makes any suggestion that (Inaudible) Robert T. Winston, Jr.: Yes. A portion of his testimony in which he states that after the 1947 contract to sign, they had the right to strike -- William J. Brennan, Jr.: I'm not (Voice Overlap) -- Robert T. Winston, Jr.: -- I would contend that that's a conclusion to the witness though, I -- I don't, of course, don't agree with it. William J. Brennan, Jr.: I meant as Section 3, itself. Robert T. Winston, Jr.: Whether he was referring -- William J. Brennan, Jr.: I don't -- Robert T. Winston, Jr.: -- to Section 3 specifically, I don't know, sir. I don't recall -- I do remember him saying that -- giving that answer, but I don't -- couldn't say whether he's referring to Section 3. Coming back to that, sir, I state we -- we should consider not only what the union was wishing and what their purpose was, but also what the company was wishing and what their purpose was. Earl Warren: I'm afraid your time is up, Mr. -- Mr. Winston. Robert T. Winston, Jr.: Well, sir. I thank Your Honors -- Earl Warren: (Voice Overlap) from your brief, I guess. Robert T. Winston, Jr.: I believe you understand my position, and thank you, sir.

Warren E. Burger: We will hear arguments today in Buckley against Valeo and the others. Counsel, you may proceed whenever you are ready. Ralph K. Winter, Jr.: Mr. Chief Justice and may it please the Court. This case was brought on January 2nd of this year, first business day after the effective date of the Federal Election Campaign Act amendments of 1974, which I will refer to as the FECA. It is about a declaratory judgment of unconstitutionality and a permanent injunction against the enforcement of major provisions of that law, the 1971, Federal Election Campaign Act in subtitle H of the Internal Revenue Code as amended by the FECA Amendments. Pursuant to the expedited review provisions, the case was certified to the Court of Appeals for the District of Columbia Circuit, after a remand to the District Court for fact finding, a framing of the constitutional issues and a re-certification to the Court of Appeals. The Court of Appeals and a three-judge district court considering always subtitle H, rendered their opinions on August 15. The majority below upheld the constitutionality of every major provision of the law, but one and that provision was not appealed and is not an issue here. The allocation of argument for both sides will be as follows. I will discuss the statutory limits on campaign expenditures by political parties, committees and candidates, limits on contribution to political candidates and limits on independent expenditures. My colleague Mr. Gora will discuss the challenge to the Act's disclosure provisions and this afternoon, Mr. Clagett will argue the unconstitutionality of federal subsidies to political candidates and parties and of the Federal Election Commission. For the Appellees, Mr. Friedman will discuss general principles and the disclosure provisions. Mr. Cox will discuss the limits on expenditures and contributions. In the afternoon, Mr. Cutler will discuss subtitle H and Mr. Spritzer, the constitutional alibi of the Federal Election Commission. Let me briefly describe the statutory provisions relevant to my portion of argument. Candidates for all federal offices are limited by Section 608 in the amounts they may spend for purposes of influencing on election. National committee and State committees of a political party, may make expenditures on behalf of candidates which are in addition to the candidate's expenditures. Section 608 (e) prohibits expenditures independent of the candidate in excess of $1,000.00 so long is they are relative to a truly identified candidate and advocating the election or defeat of such candidate. The statute also limits contributions to candidates. No person may contribute in access of $1,000.00 to any candidates for Federal Office and political committees registered for 6 months, which have received contributions for more than 50 persons and have contributed to 5 or more candidates for Federal Office may make contributions to individual candidates up to $5,000.00 each? Candidates may expend personal funds or the funds of their immediate family up to $50,000.00 in the case of a candidate for President, $35,000.00 in the case of a candidate for the Senate and $25,000.00 in the case of a candidate for the House. Certain incidental out of pocket expenses incurred by volunteers in excess of $500.00 would constitute a contribution. Potter Stewart: Some of these limitations are annually, you can spend that much in any one year, is that true of all of them? Ralph K. Winter, Jr.: No, most of the limitations apply to primary or to (Voice Overlap) -- Potter Stewart: To specific by the general explanation -- Ralph K. Winter, Jr.: Races for the nomination and then also for the general election and in some cases they are different limits, depending on whether it is a primary or general election. Potter Stewart: But I am correct in my understanding that some of them do permit annual expenditures or contributions of that amount? Ralph K. Winter, Jr.: Well, I am not sure exactly what you mean, Justice Stewart. Potter Stewart: Well, I am just asking a question? Ralph K. Winter, Jr.: I believe, 608 -- well, certainly the limits on expenditures apply to -- Potter Stewart: You would have a federal election every two years? Ralph K. Winter, Jr.: That is right. Potter Stewart: The Presidential every four and Congressional every two? Ralph K. Winter, Jr.: Well, the limits on expenditures apply to each separate election and it is not annual. The limits are independent expenditures in a year, so that is just the annual expenditure. Potter Stewart: Still I am not quite sure I understand the answer to my question? Ralph K. Winter, Jr.: Well, I think my answer is not -- Potter Stewart: It is not year. Ralph K. Winter, Jr.: It is not slightly annual as I understand that the -- Potter Stewart: They are geared to Federal Election? Ralph K. Winter, Jr.: That is right. Potter Stewart: And this is in anytime during the Federal Election Years. Ralph K. Winter, Jr.: Yes. Potter Stewart: Is that it? Ralph K. Winter, Jr.: I think so, yes. Harry A. Blackmun: Which is to say the definition of years in relation to the election not as an account? Ralph K. Winter, Jr.: That is right. Harry A. Blackmun: Is that it? What difference does it make? Ralph K. Winter, Jr.: Yes, I am not sure it makes any different, sir. Warren E. Burger: But it would make a difference I suppose if some candidate was thinking about it and with one course of action he might be subject to a criminal charge or other sanctions and with the other course of action he would be in clear? Ralph K. Winter, Jr.: Well, that is certainly true, but the definition of expenditure is for the purpose of influencing an election and that is a factual determination to be made in each case as to which election the particular expenditure was designed to, you know, was intended to influence. So, that conceivably under the Act, I take it that expenditures prior to a primary, prior to a nomination can be said by the FECA, by the Commission, or by a Court interpreting it, to in fact, have been for the purpose of General Election. One of the principles duties of the Federal Election Commission will be to allocate to make a determination which expenditures in particular cases are for the purpose of which election. The parties disagree as to the extent of Congressional Power to regulate political communication under the First Amendment, but they all agreed on one thing, which is that a statute which intrudes in a delicate area of this matter must be non-discriminatory on its face. For if it were not the state would be able to regulate the unpopular and in effect regulate the content of speech. I want to confront directly in detail the contention that the FECA is not facially discriminatory, for there are several theory cases official unconstitutionality. Section 608 limits contributions to and expenditures by candidates as defined in Section 591, essentially if anything of value, given or employed to influence a federal election. Title 39, U.S.C., Section 3210 which is on page 81 of our volume 3 of the appendix, that sub-section E and F explicitly makes explicit exceptions to the definitions of contribution and expenditures. What the exceptions are, are funds used in preparing materials to be sent out under the frank as well as the postal value of sending it out. Section 3210 (a) (3) defines the kinds of materials that maybe sent out under the Frank. That describes a variety of relevant materials which clearly influence elections. But most particularly, it includes “discussions of proposed or pending Legislation or Governmental actions and the positions of the members of Congress on and arguments for or against such matters.” The only limitation is that Frank cannot be used within 28 days in election. Now, since the presentation of arguments for and against actions by Congress obviously influence elections. The effect is that Section 608 limits all contributions to or expenditures by challengers for purposes of mailings which debate governmental issues, while leaving totally unregulated and unlimited private contributions to incumbents to prepare materials which is then send out in unlimited amounts at government expense. No party to this litigations so far as I know disagrees with this interpretation of the statute. Indeed, even in the propose regulations of the Federal Elections Commission relating to office accounts, the Commission was at pains not to treat funds supporting the activities describe in Section 3210 as either contributions or expenditures. The issue we raise is not whether a congressman should be able to communicate with their constituents. The issue is whether Congress under the First Amendment made by law, limit the ability of challengers to communicate with the very same constituents without similarly limiting itself. Of course, public officials need to communicate with voters, but so do challengers and if private contributions to challengers for use in mailing are to be limited, since they may corrupt or give the wealthy an unequal voice, then contributions to incumbents for the same purpose should also be limited. The situation this statute establishes permits an incumbent congressman say in plausible hypothetical, to accept $40,000.00 from a source, any source, which can then be used to prepare and it does not have to be disclosed, which can then be used to prepare materials. You can give the money,you can hire an advertising firm to prepare materials which can then be sent out under the Frank. So that an incumbent congressman might except, give an advertising agency say $35,000.00 to prepare materials, send out a 150,000 copies of something, which I suppose is worth maybe around $15,000.00, none of which accounts either as a contribution or an expenditure. If the challenger were to do exactly the same thing, with matters debating the pros and cons of governmental action, it would all be subject to the limits and indeed, in the hypothetical I have given, a challenger in the House would have used that well over half the expenditure limit and that is before he has hired his lawyer and his accountant to help them comply with the statute. Potter Stewart: Is this -- are you directing yourself to the Fifth Amendment attack or First Amendment attack or both? Ralph K. Winter, Jr.: I think it is both, Justice Stewart. It seems to me that it is a Fifth Amendment attack in that it is an invidious discrimination, but it is also a First Amendment attacking in that it clearly regulates content. It permits more speech, greater speech by incumbents than by challengers. I think it is almost exactly the case that the Court decided in Police Department against Mosley, involving a statute that prohibited all picketing, but picketing by a labor organization. So, I think that the attack goes on both grounds. Now, if that is not a facial discrimination then these words have lost their meaning. It is not a minor exception. Potter Stewart: (Voice Overlap) does not have much to do with discrimination as such does it? The Fifth Amendment does, of course? Ralph K. Winter, Jr.: Yes, it does. I find it difficult, Justice Stewart though to see why a statute which prohibits the speech of some, but not others in a discriminatory fashion does not violate the First Amendment. Potter Stewart: If the advice is directed to the content, it certainly does. Ralph K. Winter, Jr.: Well, that is content in a very real, very, very real sense and not only that the First Amendment at the core is the protection of those outside the government. This smacks very much of the repression of political opponents in that people outside the government are not allowed to speak as much as people in and I think that is -- if the Court finds the statute does that, it is a clear violation of First Amendment. It is not a minor exception. It involves millions and millions of dollars. More money is found in the Frank by congressman then spent by all congressional challengers and all campaign activities. In October 1974 on the eve of the congressional election the Congress which past Section 608, set out almost $22 million pieces of Frank mail and the budget for 1976, includes $46 million for use of the Frank. Challengers to Congressional incumbents in 1974 spent only slightly $20 million on everything. Let me make it clear, we claim no misused of the Frank. We do not say, 3210 is unconstitutional. It serves legitimate official purposes, separating the proper use of the Frank from the improper use is simply intractable. It would make every mailing of the Frank a constitutional issue. But the Frank does influence elections and as stipulated by the parties and found by the District Court, it is heaviest use is just prior to election. Attempts in Congress by Senator Scott to have the mailing privileges given to a challenger, given to all candidates for Federal office had been defeated. It seems to me that the Frank cannot be using this word or that you cannot limit challengers in responding without even giving them Franking privileges or limiting Congress' own use of it. We do not abandon by means all of the the contentions, but if the Court were to find that these provisions are unconstitutional for these reasons, that would dispose of both contributions and expenditures under 608 and the other constitutional issues can be left to another day. Byron R. White: It was out before the Senate and House --? Ralph K. Winter, Jr.: Yes, sir. Not, yes sir, the presidency might be different because it is penalty mail, but I would submit that it -- Byron R. White: You have to say something else about the case, about the presidency case? Ralph K. Winter, Jr.: Yes sir. The penalty mail situation, sir is precisely the same. The president also has mailing privileges which are very similar to those which incumbent congressman have. I would think that it would clearly -- that the theory would clearly fit within that and although 3210 does not explicitly make the same kind of explicit exception to fit to the 591 definitions, the case there is exactly the same. The President is permitted to send out mailings like that. The statute, I should say that basically this argument I think is applicable to all of the many resources which are available to incumbents which they can vote themselves at will and which are detailed in the briefs and in the papers of the party and I will not go into it. I emphasized 3210 because it did have that explicit statutory language. The FECA also and this applies to all Federal races, officially discriminates against independent candidates for office by permitting party committees to support their candidates over and above the candidate expenditure limit. Candidate such as Senator McCarthy who wish to demonstrate their independence from traditional political alliances can do so only at the price of having less power to communicate with voters. No matter how often the word Watergate is repeated, it really offers no valid explanation much less justification. Forth, although the statute was passed in the midst of rhetoric about reducing the influence of wealth and politics, in fact increases the advantage of wealthy candidates. The less wealthy candidate is prohibited from rising seed money or contributions for other purposes in amounts over a $1,000.00. The wealthy candidate on the other hand can support his campaign from personal funds, including large early initial loans to the campaign which can later be repaid. No reason which would stand the scrutiny has been given to justify giving the wealthy disadvantage in communication with the voters. Fifth, we also claim to this facial discrimination for the statute to permit large contributions by political committees which have been registered for six months. They are permitted to spend five times as much other kinds of committees and we believe that provision necessarily will help groups which have permanent organization, which have continuous professional contact, namely organized interest groups. Ideological groups are less well knit. Their members are dispersed. They are not in continuous professional contact. They tend to be generated by campaign activities which will occur too late for compliance for the six months requirement and they tend to call it less only in response to unanticipated events. It is certainly true that more ideological organizations such as the national committee for an effective Congress or the conservative victory fund will continue to exist. They will, however, be limited by the $5,000.00 limit and will be less able to proliferate the number of six months committees in existence. Organized interest groups, at least those with a geographic basis, which can organize horizontally are able to proliferate committees and that is why it seems to us that is very clear that the practice of this industry which have been heavily relied upon in the Court below can continue to occur under the statute, since they can organize their political committees on a county basis. Contrary to the rhetoric which accompany passage of the FECA, the statute in particular favors the use of corporate and union money for political activities. Both are permitted to spend statutorily unlimited sums to raise money for so called segregated funds to finance six-month political committees. Union or corporate money is thus spent to raise money and that money is distributed without reference to the wishes to the donors. In effect to some extent, the FECA reformed the problem of legal corporate contributions when making them less necessary. Sisson speculation, since the enactment of the statute, there has been very sharp increase in the number of corporate political action committees with no visible increase in illogically oriented groups. I should say that the change statute made was to include corporations with government contracts in their provisions permitting corporations to setup segregated funds. Six, whatever facial neutrality the statute may have, it is only skin deep. In its operation it inevitably works great discrimination among various candidates and various causes. Candidates and political movements never began from positions of equality. Some who are initially disadvantaged moreover can overcome this disadvantage only by heavy spending, no matter how much the opponent spends. Differences in name recognition, disadvantages on the issues. The record indicates, for example, in 1972 that Attorney General Kelly may well have been able to raise, wage a stronger race against Senator Griffin, had he been able to obtain a level of campaign spending, enabling him to focus the voters attention more on economic issues in which he was thought to be strong, rather than on the raging busing controversy where he was thought to be weak. In that kind of situation the busing was a controversial issue, independent of any activities of Senator Griffin could be overcome only by a vigorous campaign by Senator Kelly, no matter how many resources were available to Senator Griffin. Appellees believe these propositions are common sense propositions. We do not think there is speculation at all. Indeed, they are now the law of the FECA, according to a ruling of Commission. In an advisory ruling, involving Senator Benson, the Commission explicitly relied on the fact that an incumbent's exposure is the equivalent of substantial campaign expenditures. Senator Benson has announced that he intends to run in both the Texas Presidential and Senatorial primaries. The Commission, fearful that his combined expenditures will influence each of these simultaneous campaigns, ruled that Senator Benson may only spend the amount permissible for the Senate primary, all together. His major anticipated adversary in the Presidential primary, Governor Wallas was less free to out spend him two to one since Presidential Primary Candidates can spend twice the Senate limit. In handing down this ruling, the Commission said “within Texas, the reduced Presidential Primary expenditure limitation applicable to Senator Benson are compensated for by the fact that he is already the Senator from Texas and thus within Texas begins with the significant exposure advantage over his rivals. William H. Rehnquist: Mr. Winter, how much can we get into a particular ruling like that. I mean, Senator Benson is not a party here, Governor Wallas is not a party? Ralph K. Winter, Jr.: The point I am making, Justice Rehnquist is at while the Commission in this Court is claiming that kind of proposition as speculation and would not justify the Court holding expenditures limits unconstitutional for the reasons I have said. Now, the point is that they themselves are relaying on that proposition to make decisions below. I am not arguing whether the ruling was correct or incorrect. I am just arguing that it is a well-known proposition known to everyone. So, well known that Commission relied on it and had no problems whatsoever. I think these propositions are as much common sense propositions as the proposition that equal space statute say in Tornillo, made Detroit Newspapers from printing controversial editorials. I think every First Amendment of this Court involves judgments as to the factual impact of the statute. William H. Rehnquist: But in Tornillo we were discussing the language of the statute as such as applied by the Florida Courts and here you are asking us to take into a considerations a ruling by the Commission in a particular controversy? Ralph K. Winter, Jr.: I am only asking you to take the rationale of the consideration. I am not asking you to address yourself to the merits of whether Governor Wallas and other Presidential aspirants should be able to outspend Senator Benson two to one. I think the merits of that are irrelevant to the argument here, except insofar as they demonstrate the belief of those, the widespread belief that exposure is the equivalent of substantial campaign expenditures. They are also relevant I might say to show the kind of deep intrusion the statute makes in that the Commission will be asked time and again to address the question, how much will this candidate be able to speak in election and how much will another. I am not sure, I am being responsive Justice Rehnquist. I think that similar disadvantages are visited upon challengers by the limits on contributions. Incumbents are as we described in our papers, large advantages in raising contributions under the statute because of mailing list they develop from the Frank and the like. Indeed, although one might have anticipated that fundraising would be more difficult, the figures show that by September 30th of this year, incumbent Senators up the next time have already raised over $2 million. At a corresponding time in 1974, they have raised less than a million-and-a-half. So, they are not having any trouble raising it because they have all of this time to raise it which challengers do not and time is critical when you are raising small contributions. There is one argument; well, the argument that the statute helps challengers because offsets the superior fund raising ability of incumbents seems to us to be an error. The greatest differential in funds is in those races in which the challengers simply as little or no plausible chance of election. The limits in those circumstances have little impact because the outcome is certain and because spending is often less than the limits. The impact in those races which are competitive, however, will be drastic, but those races are the very races in which the differential in funds is leased. In 1974, in the House, if you take all the races in which the challenger did raise 70,000 or more, the amount raised by all such challengers in fact substantially exceeded the amounts raised by the incumbents is they faced. The limits already have an effect on those races where equality is greatest at the present moment. The burden of the FECA rest full heavily on those challenging the status quo by impairing the ability of challengers both to raise and spend money. This legislation makes it acutely difficult for them to overcome the exposure, incumbents already enjoy. I do not think there could be any question about this. If they were five restaurants in the town and someone was about to open a new one, an ordinance severely limiting the amount of newspaper advertising restaurants might buy, would be recognized for what it is, an attempt by the existing restaurants to freeze out new comers. I do not make claim of intent on the part of Congress to drive out and to freeze out new comers. I do claim, however, that the effect will be to do that. I think the record demonstrates these propositions. The vast majority of Congressional challengers in the last two elections have spent over what are now the FECA limits, if appropriate adjustments were made for inflation. Senator McCarthy's 1968 New Hampshire campaign, which seemed hopeless in the beginning, which was widely reported as a campaign run mostly by volunteers was in fact a very heavily monied campaign, one of the most money campaigns up to date. Senator McCarthy spent $12.00 per vote received as against $.077 spent in the General Election by Richard Nixon that it -- and it adjusted for inflation, that is around $18.00. If his spending had been otherwise, the outcome would been otherwise and had been limited, the outcome would been otherwise and the efforts of his many volunteer supporters, who are also helped by the heavy spending would have been for naught. The same is true of the reliance of challengers on large contributions. Again, the McCarthy Campaign in 1968 is detailed in the record, as is Senator Buckley's 1970 campaign in which the landlords and the phone company would not even talk to him, unless he came up with certified checks for $36,000.00. His beginning efforts were financed through a large loan which the FECA would outlaw. The record also demonstrates beyond any question that Senator McGovern's campaign would have floundered if the FECA had been in effect. From the beginning of his campaign, until the New Hampshire Primary, until three days after the New Hampshire Primary, Senator McGovern would have lost $636,882.00 in contributions. Since direct mail techniques in which he was relying heavily, required the much of the return -- the much of the contributions of the return on contributions be plowed back in, these large contributions had to be critical to his early efforts. The answer to the question is this law that reform a claims to be is clearly no, quite apart from its discriminatory effect. There is no rational relationship between stated ends and the means adopted. In fact, there are remedies which are available, are readily available with greater efficacy and had considerably less impact on First Amendment values. The record demonstrates something about the effectiveness of disclosure. In going to the record, it appears in 1972 that large, large numbers of the large contributions and the suspicious contributions which led to the passage of the FECA were passed before the disclosure provisions were in effect or after the election when it was too late for them to go before the record. The appellees state that 153 contributors give $20 million to the Nixon Campaign. From the source they sighted, we calculate that $16 million of that was given before April 7, 1972. All parties have agreed and District Court found that there was no effective disclosure before that date. Indeed on April 5th and April 6th $5.5 million was raised and a total of 20 million was raised by the Nixon Campaign before the disclosure date. Great finding 147 on page 204 to 205 of appendix 2, lists contribution solicited by Herbert Colenback (ph), 83% were made before April 7th. Great finding 124, page 155, lists contributions by Ambassadors appointed by President Nixon. Thurgood Marshall: Mr. Winter from reading the briefs from the other side with all their figures and all these things you have been throwing at us for the last half hour, where are we going to put them all in the computer? Ralph K. Winter, Jr.: I do not think that the figures that I have been throwing at you were Justice Marshall need to go in a computer. It seems to me that these --if this statute -- Thurgood Marshall: In the first place, we do not have one.[Laughter] Ralph K. Winter, Jr.: That made my answer to the question easy. It seems to me that most of the figures that are there, are fairly clear in their import and there is another factor which I think is critical, that is, if the statute is upheld, you lose the controller group. You will never again have high spending challengers to look to, to see whether this high spending is necessary for them to defeat incumbents. Once the statute is in effect and running, there will be no more figures before any Court to be able to demonstrate what effect the statute is having. These are the only figures that ever going to be available to make a thorough judgment on the constitutionality of this law. The only figures you will have from now on would be incumbency rate. You will never know whether high spending challenge -- whether high spending is necessary to challengers or not. The figures I am discussing right now, demonstrate in their totality, only that large contributors and contributors with improper motives fear disclosure to the voters. William H. Rehnquist: Well, Mr. Winter is it your contention that these people would not have contributed, had they had to do so under a disclosure requirement? Ralph K. Winter, Jr.: I think that is very likely true in a large number of cases. I would think -- William H. Rehnquist: What is your basis for it? It does not seem to me it is proved by showing that because they could contribute without any disclosure before April 7th, they choose to do that rather than to contribute after April 7th? Ralph K. Winter, Jr.: Well, I think that the best way -- I of course cannot give an equivocal answer that they would not have contributed, but April 7th is a very, very early day and contributions, large contributions after an election are too late for disclosure and particularly in election like 1972 where there was little doubt about the outcome, it seems to me, strongly suggest a powerful desire to avoid disclosure. Now, whether they would given or not, I do not know. I suspect the milk people probably would not have. I suspect in the case of the ambassadorships, they probably would not have, but disclosure does have one virtue that no other remedy has and that is it leaves it to the voter. Even if they did continue to give, the voter would be able to decide in each case whether he -- whether that voter thought that a particular candidate was going to be overly beholden to, if you want to call them special interest, was receiving to many large contributions from a particular source, whether people will continue to give after effective disclosure depends on what the voters think and that is the way it should be in a democratic system. William H. Rehnquist: Now, Congress has apparently decided otherwise in this case? They have said that they do not want people to appear to beholden, even though the voters knowing that they appear to be beholden would nonetheless elect them. It that an impermissible judgment for Congress to make? Ralph K. Winter, Jr.: Yes, I think it is impermissible for Congress to attempt to bring about these remedies by lowering the level of political communication when disclosure is available and when other remedies are also available. Remedy such as prohibitions on large late contributions which is certainly a viable remedy, it responds to everything that was cited in support of the FECA and it is not in the statute. I think that, while Congress in deciding to have disclosure, has considerable discretion in determining what kind of disclosure and when, but I do not think that they can really try, that they can remedy this by stopping essentially political speech. Certainly limits on candidates expenditures, Justice Rehnquist cannot be justified by any theory that the FECA, any evil the FECA claims the remedy, certainly limits on independent expenditure, it seems to me cannot be justified that way. The problem has to be, if there is a problem in equality argument and in the argument that the candidates, once they assumed office, will be overly beholden and obligated to certain contributors. In the case of the equality argument I think it is demonstrated in the record that you cannot bring about equality without producing more inequality, either that or silence itself. That the challengers, people are challenging the status quo, rely heavily on money and you have to freeze them out in the name of equality and that is wrongs. Second, equality is an impermissible goal in any event because the danger sought to be remedied when you try to reduce equality, inequality in political voice, the dangers stems from the communicative nature of the act itself. It is not like O'Brien where you had a congressional purpose unrelated to free speech. It is like Tucker and other cases where the danger was perceived in communicative act. So, it seems, as for the obligation of candidates, I think candidates are obligated to their voters. They want votes, they do not want money. They need money to communicate with the voters and I think their ultimate obligation is to them and I think if there was effective disclosure, they will not become overly burdened with obligations. I might also say, if you speculate for a moment about when obligations are most likely to be created, it would not be in the case of safe seats, it is only in the case of close or highly competitive seats. That is where people do need money to run effective campaigns, but those are also cases in which the person has to be the most fearful of what the voters thinks has to be the most sensitive to voters' wishes. When you are dealing with safe seats, large contributions do create real dangers, but the remedy for that is to be sure that the candidate receiving the contributions, makes expenditures only for voter persuasion and is not permitted as the present statute does -- permits him, to use campaign funds for a variety of non-speech purposes. By regulating expenditures you can solve the obligation problem in safe seats. Now, virtually a large numbers of the large contributions or improper contributions described in the appendix were made well before April 7th or after the election. This statute violates I think the coherent and established case law in this Court. It seems to me in The New York Times against. Sullivan, Tornillo, Mills, O’Brien, Red Lion and Letter Carriers are not inconsistent. The principle of non-interference in political communication in every case is consistent with the outcome in those decisions. It seems to me that this statute, there is no way, that this statute can be viewed other than as an attempt to regulate political communication, indeed to regulate the content of political communication by intricate web of statutory and administrative rulings which redirect and re-channel political speech as well as limit it. The greatest campaign reform law ever enacted was the First Amendment, relying the proposition that good speech will drive out bad and all appellants ask is, the Court enforce that. Warren E. Burger: Mr. Gora. Joel M. Gora: Mr. Chief Justice and may it please the Court. I will address myself to the disclosure provisions of the challenged legislation and in that argument, I occupy I think a unique role in this preceding in that, these are provisions that we do not challenge as inherently are invalid. In fact, we think as Professor Winter indicated that disclosure provisions properly and carefully drawn to focus on the problems that generated this legislation, provide the proper solution. William J. Brennan, Jr.: (Inaudible) is that provisions do this? Joel M. Gora: They do, but unfortunately, Justice Brennan they do much more than that. By virtue of their sweep in terms of the coverage and in terms of the depth of reporting, they go well beyond in our submission, the valid area of regulation supported by governmental interests. Warren E. Burger: You relate that to the amounts? Joel M. Gora: Yes sir, I do Mr. Chief Justice, both of the amounts in terms of the threshold of reporting and the scope in terms of who is covered. This statute requires that all political committees must keep a detailed and exact account of the identification that is a statutory term, it means name and residence address, the identification of each person who contributes in excess of $10.00 a year. That is a virtual monitoring of everyone who makes a political contribution in the United States. Similarly, all candidates and political committees, whether they be the committee to re-elect the President or a local small minority party in California, all political committees for all offices have to file reports, disclosing the identity of their contributors in excess of $100.00 a year. And finally, any citizen who on his own spends more than $100.00 a year on Federal politics, independent of any candidate, just goes and prints out some leaflets attacking his local member of Congress, must register and file reports with this Commission, indicating the source and nature of his expenditures. Lewis F. Powell, Jr.: What is the penalty for failure to comply? Joel M. Gora: The penalty for non-compliance with the disclosure reporting requirements is I believe a 1-year in jail and I believe it is a thousand dollars fine. Lewis F. Powell, Jr.: For a citizen who fails to report a hundred dollar contribution? Joel M. Gora: A hundred dollar independent expenditure contribution. If I for example, run an ad in the Village Voice in New York or some comparable paper, spend $125.00 on it saying defeat so and so, vote for so and so, I have to file a detailed report with the Commission, giving the source of my money, how it was spent and so forth. William J. Brennan, Jr.: But if we were to agree with you and to that extent suppose the provision go to far and strike them to that extent, would you then be satisfied towards that? Joel M. Gora: Well, striking independent -- the disclosure requirements independent speech -- William J. Brennan, Jr.: Both aspects --? Joel M. Gora: Yes, I think we would. I think if this Court were to indicate that the statute reached too deeply in terms of the threshold and swept too widely in terms of the reach, yes, we would be -- that is our position, that it is not properly focused to those interests that the government can properly require disclosure for. The problem is that the government interests and associational privacy have run up against each other in this area. Depending on where Congress draws the line, will determine for example for a smaller, unpopular party whether they in their adherence are going to be essentially free from government harassment or have to expose their contributors. But even for the contributor to a major -- the Democrats or the Republicans the $125.00 contributor, where the threshold is drawn is going to determined whether his name might go on an enemies list or not and we suggest that we are -- Potter Stewart: Well accept for it is being very awkward and unwieldy perhaps and maybe impractical to sweep so broadly, how constitutionally does it differ? How constitutionally it is a greater violation of John Jone's rights to Private Associational confidentiality, if his $125.00 expenditures needs to be recorded? How is that a greater violation than it is of Mr. Mott’s or Mr. Stone's rights, if as you concede Congress could enact a statutory provision, requiring that he make a disclosure of his million dollar contribution. Joel M. Gora: I think in principle there is no difference. However, I think that the disclosure of one's political activities at whatever volume is presumptively invalid, but have the volume of the large contribution, countervailing government interest in informing the electorate of those individuals who make large contributions in preventing corruption, those countervailing interests come into play. So that that is how I would make the distinction between the interest in knowing in breaching the privacy of the $125.00 contributor and the interest in breaching the political privacy of the $125,000.00 contributor. That is how I would draw the line Mr. Justice Stewart. Potter Stewart: And one other question now that interrupted you. You said you be quite satisfied if the -- with what would be left after the Court accepted your position and struck down these disclosure provisions, what would be left vis-a-vis disclosure, nothing, would it not? Joel M. Gora: Well, it would depend on how the Court choose to approach that remedy. There is a severability section in the disclosure provision -- Potter Stewart: But would you say you would be quite satisfied with what would be left with respect to the disclosure requirements after we struck down that you tell us we should strike down, that is after we have held that the constitution makes it impermissible. There were be nothing left with respect to any disclosure requirements, would it not? Joel M. Gora: You mean in terms of this present statute? Potter Stewart: Exactly. Joel M. Gora: Well, that would depend Justice Stewart on the remedy that this Court choose to employ. Now, in terms of dealing with sweeping and over broad statutes, one remedy, the potent medicine is to invalidate on its face. I am not sure that necessary here. Section 454 of the Act has in effect the severability Section, which reads if any provision of this Title or the application thereof to any person or circumstance is held invalid, the rest of the Act stands. This Court would determine, for example, that the failure to make distinctions between the two major parties and all the others small minors parties in terms of disclosure warranted invalidating the statute. I assume a ruling of that kind would leave the regular disclosure provisions in effect. It might be more difficult for the Court to make a separation out in terms of the threshold, so I would grant that, but I think that the statute itself obviously contains vaince for separating out major and minor parties. Thurgood Marshall: Mr. Gora, how long have we had disclosure and political contributions in this country? Joel M. Gora: Technically, Justice Marshall since 1910, practically since April 7th 1972. Thurgood Marshall: What you say, they have been there all that time? Joel M. Gora: Pardon me? Thurgood Marshall: It has been there all the time? Joel M. Gora: Just has not been challenged that we are aware of in terms of the kinds of First Amendment Association and political privacy arguments that we are making here. Byron R. White: How many states have disclosure provisions? Joel M. Gora: Justice White, the bulk of them do. The count varies, you get a different figure in each of the briefs on the other side. Byron R. White: Were the bulk of those be vulnerable in your --? Joel M. Gora: I think not necessarily. I think there are two differences. We argue the minor party point and the threshold point. Now, it seems to me that at the state level, the level of spending for any comparable race, a state senate seat, a state assembly seat, the governor’s seat is probably on the whole much lower than the level of spending in any comparable Congressional or Presidential race. I doubt that there are very many State Representative races that spend 70 or 80 or hundred thousand dollars, so that -- Byron R. White: (Inaudible) constitutionally the state case will come out differently that the (Voice Overlap) Joel M. Gora: Yes, I am suggesting that it might be shown, that since the average that is spent, let us say in a house race in a state, in assembly race is $20,000.00 that this Court might find that threshold disclosure there might have to be lower than it is in the case where the spending limits in a Congressional race id $100,00.00. Byron R. White: We would should pick out some figures and some threshold figures or -- Joel M. Gora: No, I am not suggesting at all. I am trying to respond to your concern about the effect of the decision that we seek on state law and I am suggesting that in terms of thresholds, the difference between Federal Elections and State Elections is such that it would not necessarily be controlling and I would say the same thing about the problem of minority parties. William H. Rehnquist: Before you leave that point, if we say $100.00 is too low a threshold, we would surely have to articulate some basis for our reasoning as to why $100.00 is too low, but some other figure would be acceptable? Joel M. Gora: Well, I think the basis is to look for the purpose of disclosure. The primary purposed that has been advances for it is the preventing of corruption and improper influence on Governmental officials. I think this Court could in a constitutional way require that the disclosure provisions be geared to the level at which improper influence can be brought to bear by virtue of a contribution. William J. Brennan, Jr.: But how do we know that? Joel M. Gora: Well, I think Justice Brennan, I do not think it is this Court obligation to pinpoint that I think it is -- William J. Brennan, Jr.: Are you suggesting we should pick out $1,000.00 or 500 -- Joel M. Gora: No. I think that this Court should require the Congress to look at these problems and to draw some lines. I have looked at a good chunk of the alleged -- William J. Brennan, Jr.: I must say if the fact so then the answer Mr. Justice Stewart's questions is that there is anything left and we have to strike it down facially -- Joel M. Gora: There, I think there is a difference between the minority party point, but there lines in the other Section of this Act, regrettably lines which discriminating against minority party and the threshold problem which is a little harder to make distinctions on, but I would suggest that the problem is that Congress seemed to me, to my study of the legislative history to be essentially indifferent to these problems. And I think what we would request of this Court is that Congress be required to think about these things, to think about whether you really want to require the public identification of the $125,000.00 contributor to the small party or even to the Presidential Party. William H. Rehnquist: Should we include that in our opinion that the Congress ought to think more carefully about this? Joel M. Gora: Well, one would certainly hope so, but I think that as I said there are basis in the statute Justice Rehnquist for validating the application to smaller and minor parties. The threshold problem presents a different one -- Warren E. Burger: I take your argument Mr. Gora, to be that there is no valid rational public interest in flushing out in publicizing the names of $100.00 contributors or $101.00 contributors, none that can be justified constitutionally, but that there is indeed a real public interest in knowing about $10,000.00 or a $100,000.00 or $500,000.00, is that true? Joel M. Gora: Yes, that is our essential submission that in -- Warren E. Burger: You cannot pick the point where the line should be drawn? Joel M. Gora: Well, again the point I think has to be attempted to be drawn in reference to the purpose of having disclosure. If the purpose is not just promiscuous to find out whether your neighbor gives 125 bucks to the local congressional candidate, there is a presumption that is one's politics are one's own business. That is why when the purpose is in terms of the prevention of corruption then this Court and the Congress must ask whether the disclosure levels are drawn to meet that purpose, that is what we are saying. Warren E. Burger: We must mean in there that the public interest in knowing about the large one is that $10,000.00 or $100,000.00 or $500,000.00 might conceivably buy something improperly, but that $100.00 or $125.00 could not conceivably buy anything -- Joel M. Gora: Precisely our point. Warren E. Burger: -- these days? Joel M. Gora: Yes, Mr. Chief Justice, that is our point -- Warren E. Burger: It does not buy much radio time; it does not buy much newspaper space and certainly not much influence? Joel M. Gora: That is the argument. Thurgood Marshall: And when you get to figure, will it go up each year, go up with the cost of living? Joel M. Gora: Well, I think it certainly might. I mean, they are cost of living adjustments in the statute, but again, I think that the major point we are trying to make is that this Court has to require the Congress to think about these problems, to think about these line drawn problems, both in terms of the threshold of reporting, the $10.00 record keeping and the $100.00 from the reporting end in terms of the application to minor parties. Finally, let me just turn for a moment to Section 434 (e). As I indicated in response to questions, that Section requires that any private citizen has nothing to do with the Candidate, Political Committees, not making contribution to a candidate or political committee wants to get involved in political activity, wants to condemn his local congressman and run off some leaflets and spend more than $100.00 doing it, that person has to register with the Federal Election Commission and supply the reports required of political committees. We think that provision is virtually impossible to justify. It seems to us that it is flatly in contravention of the principles in the Talley case where this Court protected the right of political speech and unanimity and we think it is also in conflict with the principles of the Thomas case where this Court rejected the application of just a mere registration requirement upon giving a speech. Section 434 (e) runs afoul of both of those decisions. And let me finally if I might, in terms of the discrimination against small and minor parties that this disclosure statute involves, it has been our contention that Congress simply failed to consider what alternatives were available to deal with the valid interest served by disclosure. The same Act which did draw a sharp and unconstitutional distinctions when it came to dispersing the benefit of public financing, for example, to know such distinctions in imposing the burdens on association entailed in reporting and disclosure. Instead, Congress indiscriminately cast a net across the entire range of political association, that is manifest by contributions to a party without regard to the very widely varying interest at stake. Analytically this Court found such an approach insufficient in Robell and the other communist membership cases and we would submit that it should find that approach insufficient here. Potter Stewart: Mr. Gora, I guess I missed something and perhaps I did. I think neither you nor Mr. Winter specifically separated and identified Section 608 (e) for special attention, did you? Joel M. Gora: No, we have not. Section 608 (e) is a flat ceiling on the speech of persons completely unconnected to any political candidate or committee. In a statute with a lot of unconstitutionality, we submit that that stands out. William H. Rehnquist: Well, I should think if there is a problem in requiring someone who spends $100.00 to disclose it, there would be even more of a problem in flatly prohibiting a person from spending over $1,000.00? Joel M. Gora: That is our submission, Mr. Justice Rehnquist. Thank you Mr. Chief Justice. Warren E. Burger: Very well, Mr. Gora. Mr. Friedman. Daniel M. Friedman: Mr. Chief Justice and may it please the Court. As has been indicated, I will begin by outlining the problems that Congress was dealing within this statute and then rather briefly showing how the particular solution selected accomplished those objectives and then I will discuss in some detail, the reporting in disclosure provisions. Mr. Cox will then follow and discuss the contribution and expenditures limitations. Since early in this century, there has been, in the language of this Court in the Autoworkers case, a long series of congressional efforts calculated to avoid the deleterious influences on Federal Elections, resulting from use of money by those who exercise control over large aggregations of capital. Congress first faced this problem back in 1907 by enacting a statute prohibiting certain contributions by corporations in connection with elections. In the Autoworkers case, this Court traced it at some length. The history of the congressional regulation of this problem what it described as series of acts to protect the political process from what Congress deemed to be the corroding effect of money, employed in elections by aggregated power. Unfortunately however, as these statutes were enacted, they proved to have so many loopholes that they were virtually ineffective in doing anything about the problem. And beginning in 1960’s, in the late 1960’s, Congress held a series of detailed hearings, exploring all aspects of the problem. These culminated in a 1971 Act, the initial Federal Elections Campaign Act and was followed by the present amendment in 1954. Now, this statute therefore, is not something that came out of the blue. It represents the result of many, many years of study, three quarters of a century by the Congress, the body that is particularly expert in knowing the problems, resulting from the use of money, the corrupting effect of money on Federal Elections and Congress has studied the problem, has recognized that when things do not work, changes are necessary and Congress has been willing to change in this area and to try the devise a scheme that will once and for all, we hope put an end to this problem. The present statute of course is a direct out growth of the disclosures of the 1972 campaign. There is no need to go into any detail with that sorry and sordid story. It is set out in the record. It is a matter of public knowledge. The huge campaign contributions, the gifts for people who wanted to be ambassadors, the campaign, specific large contributions in connection with anticipated favorable Government actions such as the milk producers, a large number of corporate officials who were convicted and many whom pleaded guilty to illegal campaign contributions and the evidence that developed of the vast increase in the cost of campaigns in this Country. Warren E. Burger: Three quarters of the century of study of this problem by the Congress, you suggested that was sustained study or sporadic study? Daniel M. Friedman: I would say Mr. Chief Justice, it was sporadic in the sense that Congress was not constantly looking at the problem, but over a number of times, there are a large numbers of statutes over the years in 1900, starting in 1907 and 1910, in the middle of the second decade, the Corrupt Practices Act of 1925. Gradually over the years, Congress realized that what it had done up to then was not enough to solve the problem and looked at the situation and devised what appeared to be more and more comprehensive regulatory things. It expanded the type of controls that extended during war, the prohibition on gifts from corporations to unions, as problems developed Congress studied them. But my point is that over a long period of time, Congress has considered these problems, studied them and devised schemes to deal with what it perceived to be an increasingly serious evil in the body politic, the corruption of Federal Elections by the use of money and the cost of these campaigns has risen at the staggering rate. It is really the staggering rate and at page 35 of Mr. Cox’s brief, there is a chart which shows the increase in campaign cost reflected to show increases in a consumer price index. And what it shows is over a 20-year period, from 1952, the 1972, after adjustments to reflect increases in the cost of living, the cost of congressional races increased more than 300% and over the 10-year period, 1962 to 1972, the cost of Presidential races with the similar adjustment increased more than 450%. And by 1972, it was estimated that the total cost of elections in this Country exceeded approximately $400 million. Now, what is the consequence of this escalating cost? It is a vicious circle because when one candidate sees another candidate spending more and more, he feels impelled to spend more and more. As the cost of these campaigns increase, the candidates naturally turn to where the money is, the easiest source of money, those are the wealthy interests. Once a wealthy interest gives a campaign contribution, his competitors, other businessmen also feel obliged to give because they are concerned that if they do not give, either they will be discriminated against by Government officials or their competitors will gain an advantage as result for these contributions. And thus, the candidates as result of this thing feel more and more obligated to the sources, the large sources of campaign contribution. And it is not surprising with this history, that by the early 1970’s, there was a tremendous feeling in this country that you could not trust the Government, a lack of electric confidence in our Government Officials, the notion that somehow people could be bought. If you gave enough money, people could be bought and conversely correspondingly really, the average man who was not very affluent, who did have access to all these sources, he believed that it was rather feel for him to try to play an active role in the campaign. For one thing if you want to run through office, he knew he could not raise these sources money and secondly if he wanted to try -- Potter Stewart: (Voice Overlap) It is not you painted with a very simple brush, it a much, it is considerably more subtle than though you describe it to us, is it not? Daniel M. Friedman: Well, I think -- Potter Stewart: People often make contributions to a candidate who expresses the donors views. They do not go out and buy them, do they? Daniel M. Friedman: Well -- Potter Stewart: It is not as simple at least, through a little more subtle than you describe, you would conceived that, would you not? Daniel M. Friedman: It may not be quite as simple Mr. Justice, but I do think it is a very serious problem. As a good example, I think of this is evidence in the record that in many campaigns in recent years the same interests have contributed to two candidates who running against each other. Potter Stewart: Yes. Daniel M. Friedman: And that hardly suggests that they have a strong commitment to one candidate. Those people are obviously hopeful -- Potter Stewart: But if it is the same amount of money, it is the same as though that donor made no contribution at all, is it not? Daniel M. Friedman: Well, perhaps and perhaps not, but with this exception Mr. Justice that both of these people, whoever is the victorious is likely to feel the sense of obligation to the person who gave him this contribution. That this -- William J. Brennan, Jr.: (Inaudible) it does not care about the contribution (Inaudible) Daniel M. Friedman: I am sorry? William J. Brennan, Jr.: And that the victor hopes that the donor does not care about or the other donor hopes that the victorious candidate does care about the donors’ contribution, is elusive? Daniel M. Friedman: I would assume so. I suspect perhaps some people in the Congress are aware of this and I think this is one of the things that influenced them to require both limits on contributions and disclosure. Warren E. Burger: Let us analyze that a little bit? You made this a very broad general statement. Would you see any corrupt or improper motive if a very wealthy man said that he would put up a half million dollars or a million, whatever it takes for a series of three national television debates between two candidates or within a state if it is senatorial race. Now, he is contributing to both sides, is he not, when he finances that? Anything improper in that? Could that be explained by a dedication to the First Amendment idea that the issues should be debated? Daniel M. Friedman: Surely Mr. Chief Justice, but that I do not think was the problem that concerned Congress in this legislation. Harry A. Blackmun: But the limits would apply? Daniel M. Friedman: The limits would apply, if it -- well, it would depend whether this -- they may not apply because that would not be, I do not think a contribution directed to the influencing the election or nomination of the particular candidate. I do not think that it will be anything in the statute prohibiting that kind of a sponsorship of a public forum. Warren E. Burger: In another occasion and the situation you hypothesized with Mr. Justice Stewart, a man giving $10,000.00 to each of the two major party candidates perhaps just wants to make sure that one of two men that he regards as responsible will be elected and the third party candidate will not be elected. Those are all valid motivations, are they not? Daniel M. Friedman: Those would be valid motivations, Mr. Chief Justice, but I think that has to be weighed against the judgment of Congress that overall, overall the evils resulting from the substantial increase in campaign spending and the giving of large contributions, that these evils are as such as to require some regulation to try to stop this increasing spiral of campaign cost and try to restore public confidence. I think it is important element that the lack of public confidence, if the public believes, if the public believes that large contributions have a corrupting effect upon electoral process and upon Government and the record here contains a lot of evidence to that effect. That is a valid consideration for Congress to take into account. Warren E. Burger: I took the argument of your friends to mean that, yes, indeed there is a public interest in limiting expenditures, but that when balanced against the First Amendment rights of the small contributor, the First Amendment rights shall prevail over $100.00 limit. What do you have to say about that? Daniel M. Friedman: Well, let me if I may -- that is a $100.00 disclosure limit, that is the small contributes a thousand dollars. Our answer to that is the disclosure -- Warren E. Burger: That is the limit of it, the limit that you can give out having his name flushed out? Daniel M. Friedman: Yes, but he can give up to a thousand, he can give up to a thousand, but more than -- if he gives more than a hundred, that has to be disclosed. Our answer to that is disclosure serves two important objectives. One, which I think our opponents have recognized, is that it does serve an informing function. It tells the electoral whose backing whom. It shows who their friends are and this is an important element because in making the choice, when the electorate makes the choice it should know who is behind whom in these cases. Indeed, I dispose a rather simple hypothetical. Suppose you have a keen congressional race in which both candidates are urging that they are dedicated to improving in cleaning up the environment and this is keenly contested thing, each one accuses the other of not being sympathetic to the environment. I think it would be highly significant to the voters in this district, if they knew that a large number officials of several of the firms in this district that were accused of being the leading polluters had all contributed to one of the candidates, that would be very significant. Now, let me add one other thing on the $100.00 amount which -- Lewis F. Powell, Jr.: Are you going to leave the hypothetical that you just put? If you are, I beg to leave it. I would like to ask this question. As I understand it that cooperation and unions are exempted from the spending and contribution requirements of this Act? Daniel M. Friedman: To the extent that Section 610 permits it. That is, they have to have a separate independent fund from which contributions are made. All of these activities -- Lewis F. Powell, Jr.: Is there is any limitation on that fund? Daniel M. Friedman: I do not think so. Once it gets into the separate fund, but they -- Lewis F. Powell, Jr.: That is right, the union and the cooperation as the case maybe has the authority on the 610 to organize that fund and they solicit the money for the fund from stockholders, employees and union members. Now, you are talking about the corrosive or corroding effect of large concentrations of wealth. How do you explain the exception of cooperations and unions from this Act? I think the brief filed by your colleague, the Attorney General stated in a footnote on page 31 that in the 1974 congressional elections, unions spent $4.3 million, corporations $1.6 million, medical association $1.5 million and so on? What about those concentration of corroding wealth? Daniel M. Friedman: I am not sure Mr. Justice that all of those contributions would be permitted because under this Court's decision in the Pipefitters case, the fund, the independent fund cannot be under the control of the either the corporation or the union. It is has to be an independent fund and I do not know how many of those contributions that you refer to, would in fact be permitted under the statute. My other answer is that perhaps, perhaps at some point Congress will feel it necessary to close and cut down on the corporate and union contributions that are now permitted under 610, but that it seems to me is another matter. The fact that it is permitted under that particular provision, I do not think is a reason for saying that Congress cannot act under this statute as it has. Potter Stewart: I understood Mr. Friedman maybe mistakenly that there was a difference of opinion in the briefs as to whether the limitations of the present statute would extend to the kind of committees permitted under our Pipefitters construction of Section 610. The question being whether or not they would be so called “committees” under the statute? Daniel M. Friedman: There are problems -- Potter Stewart: Is their difference? Is there -- Daniel M. Friedman: I think there is a problem -- Potter Stewart: And to the applicability of the existing statute to the kind of organizations that my brother Powell was referring to? Daniel M. Friedman: I think so and that is an issue that initially, I suppose the Federal Election Commission will have the resolve. William J. Brennan, Jr.: (Inaudible) that any limitation say on contributions to a particular candidate, out of the segregated union or corporate funds apply to those funds, does it, Pipefitters is the 610? Daniel M. Friedman: 610. William J. Brennan, Jr.: Yes, I remember. Daniel M. Friedman: No, but we have to kind of pause this two together and see how you fit them together. Congress did not intend. I do not -- William J. Brennan, Jr.: I do not see anything in 610 itself would subject contributions on those segregated funds to the limitation? Daniel M. Friedman: Not in terms, but it maybe -- Potter Stewart: Of course, would there be committees on the existing limitation -- Daniel M. Friedman: Yes, but in terms 610 which is an old statute, was not enacted with this in mind, but there will be problems of the extent to which the limitations of this statute would apply to those -- William J. Brennan, Jr.: Do you suggest in the first instance the Commission would have to determine that? Daniel M. Friedman: I would think it would because a problem may come up whether a particular fund of a cooperation or union can make a sizable contribution. Under the statute normally, this would be put to the Commission and the Commission could give an advisory opinion on it. But let me if I may -- William H. Rehnquist: Mr. Friedman before you go on, if your answer to Justice Powell is right, it is certainly stands the cases of this Court on the subject down their head because the thought had been that you could do to -- you could prohibit contributions from corporations and labor unions in a way that you could not prohibit them from individuals and now if you are right, Congress comes a long and says we are prohibiting individual contributions, but corporations and labor unions are free to give what they want to? Daniel M. Friedman: Well, I do not say they are free to give what they want to it. The question is whether or not these special funds have been locked in, if I may use the phrase or subjected to the limitations of the statute. Now, there is a provision saying that political committees may give up $5,000.00. That applies not only to -- if these funds are political committee -- I am not suggesting Mr. Justice that Congress is barred in anyway from imposing the limits upon cooperations. The only question is whether Congress in this statute, whether Congress in this statute has not tied the knot and closed the ends as effectively as it perhaps it might have. I do not think that Congress can be faulted because in dealing with what it perceived as the general problem of large corporations, it did not specifically say a no union fund or no cooperation fund may exceed these limitations. I think Congress left it somewhat unclear because of the question whether these funds would be committees -- William H. Rehnquist: Yes, but the history of our cases has been first to sustain corporate limitations with the thought that you probably would have a great deal more difficulty with individuals and then to say, well, you can treat unions the same what you do corporations, still intimating that you would have a great deal more difficulty with individuals. And now you say, Congress has come along and stood the things on it his head that individuals are limited, but corporations and union are not? Daniel M. Friedman: No, I am sorry Mr. Justice. Perhaps I misspoke myself and did not make myself clear. This provisions apply not only to individuals, but to unions into corporations. Congress has not said that corporations and unions are to be treated differently from individuals with -- William H. Rehnquist: But the segregated funds are to be treated differently? Daniel M. Friedman: Perhaps, segregated funds, but then again all that Congress, all that has happened in this situation is Congress has not gone as far as it might gone in this statute. William J. Brennan, Jr.: But you suggested to me earlier namely whether or not these segregated funds are to be treated as political committees as a question in the first instance to be decided by the Commission. So, I take it we do not reach that question in this case for the purpose of deciding? Daniel M. Friedman: I would think not Mr. Justice because there has been as far as I know no ruling on that, thus far. William J. Brennan, Jr.: Well, I think you suggested that there could not be until after the Commission had in the first instance decided whether or not -- Daniel M. Friedman: That is difficult question of exhaustion of remedies that I would be rotten to take a position on, but I think the normal practice, the way the Commission functions is if they were a question, a request would be made to the agency for an advisory opinion. If I may come back to the disclosure -- Lewis F. Powell, Jr.: Mr. Friedman, I do not want to deter you from proceeding, but I would like to invite your attention to a statement in the brief filed by the Attorney General as amicus. On Page 74, the brief says, flatly that corporations and unions can accept and spend the funds without limit, supporting or advocating the defeat of candidates. Now, of course the brief could be wrong as I think you suggest, but I wanted to call that to your attention, at page 74 -- Potter Stewart: A footnote in another brief, that I cannot locate at the moment, takes issue with -- Lewis F. Powell, Jr.: Takes issue with that? Daniel M. Friedman: I think there is some quite, I would have to say some doubt that because O do not -- let me say this, if I may Mr. Justice. I do not think nearly as clear as the statement in amicus brief suggests that corporations and unions as a practical matter may make unlimited contributions in the course of campaigns through the use of these funds. If I may returned again -- Warren E. Burger: The experts on this these subject, I suppose some people will have to act at their peril in deciding what to do without being sure whether they will or not go to the jail? Daniel M. Friedman: No, Mr. Chief Justice, they will not because under the statute and the statute explicitly provides that anyone who is a candidate for office can ask for an advisory opinion from the Federal Election Commission which the Commission is required to answer and if he gets that opinion, it is presumed that if he acts in reliance on this opinion, he has acted in accordance with law. So, people are not left wholly at large to worry about it. They can get an advisory ruling and the Commission has already given 20 to 30 advisory rulings on these topics. So, there is not in this case the danger of somebody going to jail without being able to get some advice. They can get advice from the expert agency. Warren E. Burger: But if he does not ask for the opinion and simply gets the opinion of his own lawyer one way and that turns off to be wrong, he has got problems I suppose? Daniel M. Friedman: I would suppose in much the same way that anyone who is subject to a regulatory statute has problems about whether or not he has violated the statute. But, again that is not a problem it seems to me that is faced in this case because the time to really decide that question I would suppose is if and when someone is charged with having violated the statute by making that kind of a contribution. Thurgood Marshall: Can you please may back up a minute on your disclosure point, the $100.00 point? You are talking about two parties, what about the third and unhappy and unlighted and crusade party? Daniel M. Friedman: They too can play a role in a election. They can play a role -- Thurgood Marshall: If the board is disclosing those names and this Court said, that they do not have to? Daniel M. Friedman: No, Mr. Justice I -- Thurgood Marshall: That is what they say? Daniel M. Friedman: I think that the cases in which this Court has struck down disclosure requirements are cases in which one of two things have happened. Either this been a clear evidence that disclosure will produce harassment or chills such as in some of the NAACP cases. In NAACP, we have a battle where they put in uncontroverted evidence with respect to the adverse effects that resulted from this -- Speaker: (Inaudible) Daniel M. Friedman: Well, again there were not. Let me come to the other aspect of the equation, all cases in which there was no showing of any substantial compelling state interest. Now, the record in this case is the Court of Appeals said was slam with respect to the possible harassment of disclosure. There were three minor instances in which there was a slight suggestion and our position to that five representatives of minority parties indicated that as far as they could tell, there was no indication either the people would refused to contribute, if they were disclosed or that anyone whose disclosure had been made public, his contribution had been disclosed, was in fact subject to any harassment. These minority parties play an important role. They can affect the influence of an election by drawing votes away from one to the other. At page 179, in footnote 210 of this blue brief filed by the Center for Public Financing of Elections and Others, they give three indications, three examples of the so called Stalking Horse Phenomenon in which a political party sponsors a minority candidate in the hope of drawing votes away from the opponent. That is in -- Potter Stewart: That Mr. Friedman is in that brief that I have now located the footnote to which I earlier referred, it is footnote 124 on page 107 and the accompanying text, that takes issue with the government' amicus brief on pages 36 and 37 in the accompanying footnotes. Daniel M. Friedman: Thank you. One other thing about these disclosure provisions which think is very important to remember. On its face one might say, “Well, who cares about a $100.00 contribution.” A $100.00 contribution is not going to corrupt anyone and why set the limit this low? The answer I think is two-fold. First, this is a very useful method for enforcing the statute because and particularly where the overall limit is $1,000.00, a contribution of a hundred cannot said to be in substantial, but equally or perhaps more important is the problem of culminating of combining contributions. If you have a large number of people who are a affiliated, who do combine contributions again in this blue brief on page 174, an example is cited how a Senator on one day, in his senatorial campaign received 247 individual contributions totaling $28,000.00 from the employees of one single corporation. Now, that it seems to me is the kind of information that is very useful to the electors. They like to know if a large group of affiliated people have a sufficient community of interest that they all favor a candidate, that is again the same kind of thing as the general disclosure of who is backing the candidate. That is the sort information that people would like to have. This -- William J. Brennan, Jr.: Mr. Friedman could that corporation have set-up a segregated fund and solicited or set-up a desk in the front office and said anyone who wants to contribute, contribute it and 247 came along, made contributions totaling $28,025.00 and then under the Attorney General's suggestion I gather that could have been spend by that fund anyway they want it without any disclosures of the names of those 247? Daniel M. Friedman: If in fact, if the amicus brief is correct that this is not a political committee, but, again Mr. Justice I think the answer is that perhaps if it should turnout that this device of the contributions by independent funds is another technique that has been used to evade these statutory provisions as we have these mobile committees in the past, Congress may at some future date see fit once again to amend the Federal Election Campaign laws to close that loophole if it is prove to be loophole. But our point is that the presence statute is a reasonable effort made by Congress to deal with this problem and that why we think there is a very little, if any, chilling effect to whatever extent there maybe some slide show we think that is more than off set by the very strong compelling Governmental interest in trying to protect the integrity of Federal Elections. A compelling interest which we think under the decisions of this Court justifies any possibly slight showing effect that these provisions may have upon the exercise of that most fundamental of all our rights, the right to vote. Speaker: (Inaudible) Daniel M. Friedman: I do not believe so Mr. Justice. I think the theory is that and the record indicates that large contributions have been made on both sides of the allied. I think Congress was not concerned that the large contributions will favor in one side of the other. Congress was concerned that the large contributions were having a corrupting effect on the electoral process. Speaker: (Inaudible) Daniel M. Friedman: Well, Mr. Justice I would say that this is -- to us this is not speech. This is money. Money obviously called as important connection with speech, but it seems to me what Congress was concerned here was not with attempting to in anyway limit total speech limit conduct. Congress was concerned here with the effect, the effect that these large contributions no matter what the political persuasion of the recipient, with the effect these large contributions would have upon the whole process. And I think Congress as this Court's decisions have made clear, going way back to Burroughs and Cannon (ph) in 1934, Congress has the power to deal with the corruption that results from this infusion of money. And I do not think that. Congress was attempting to say that, well, there is too much speech here and what we going to do is cut down the amount of speech. Congress was saying there too much money being spent and the money has bad effects and we are going to try to cut down the amount of money. Now, to some extent to be sure, to some extent cutting down the money is going to cut down on the volume necessarily of speech, but it seems to me this is an incidental effect. The main trust -- William J. Brennan, Jr.: Well, you are suggesting that the issue it is not a personal remedy? Daniel M. Friedman: No, of course not Mr. Justice. I am suggesting, I am suggesting that in this area when we doing with this kind of a restriction, when we are dealing with this kind of a restriction that the compelling interest -- William J. Brennan, Jr.: That is what I thought you said -- Daniel M. Friedman: Yes. William J. Brennan, Jr.: That the first Amendment problem, that any First Amendment rights are overridden by compelling the governmental interest -- Daniel M. Friedman: Or if I may -- William J. Brennan, Jr.: That is your basic argument? Daniel M. Friedman: That is our basic. If I may we rephrase it slightly, any adverse impact upon first amendment rights is overridden by the compelling Government interest. Potter Stewart: (Inaudible) in speech and speeches money whether to be buying television or radio time or newspaper advertising or even buying pencils and papers and microphones, that is certainly clear, is it not? Daniel M. Friedman: Money affects speech, but I would not agree that money is the same thing as speech because not every contribution that is made to a political candidate is used for speech. They maybe used for many things -- Potter Stewart: But insofar as it used to buy people to vote, that is covered by other criminal statutes, so were obviously not talking about the that -- Daniel M. Friedman: Well, Mr. Justice if it is rather difficult to (Voice Overlap) -- Potter Stewart: And that is tried by other and older criminals’ statutes -- Daniel M. Friedman: Specific bribery, yes. Potter Stewart: Or purchasing of votes given -- Daniel M. Friedman: Purchasing a vote in the crude sense, if it is bribery. But there are other subtle influences that work which may not come to the purchase of a vote, but which may nevertheless have the same effect. Potter Stewart: And the question is whether those so called subtle influences are influences protected by the constitution of the United States, specifically Amendment one there a -- Daniel M. Friedman: We do not question that there is a First Amendment protection to these interests. As we see the issue it is whether whatever adverse impact the statute has on the exercise of those rights is outweighed by what we deem to be the clearly compelling Government interest underlying the legislation. Potter Stewart: Again, just phrase down Mr. Friedman. You did not precisely separately discuss Section 608 (e), did you? Daniel M. Friedman: No, I did not. Mr. Cox will I think be discussing that. William H. Rehnquist: For a reason just before you were questioned by my brother Stewart and Brennan, you said that you thought the chilling effect here was justified by the interest in the most fundamental of all our rights, the right to vote. Is it your position that the United States constitution places the right to vote in a position superior to the right to speak or publish? Daniel M. Friedman: No, I do not -- but of course not Mr. Justice. What I was suggesting is that this Court in a number of its decisions has recognized the key role that elections play in our democracy and I was suggesting that what Congress was doing in this statute was attempting to protect the integrity of that right to protect the integrity of the whole electoral process. Harry A. Blackmun: I think we have some more time. Following to what Justice Stewart indicated, it seems to me in a distinct sense that one of your problems is to joist with this suggestion that money is speech and I think part of the argument of your opponents is very forceful in that respect. It does produce speech. Now; all of us of course recognize that there is a profound and disturbing problem that has existed. I suppose the question is what are we going to do about it and does the statute do it effectively without unduly violating the First Amendment? Daniel M. Friedman: We think the statute does at least we think Congress is attempting to do -- I would suggest Mr. Justice that when you are dealing with restraints upon First Amendment rights, you have spectrum. You have the immediate prohibition that someone cannot speak, cannot publish then you begin to shift over and it is seems to me as the impact upon First Amendment rights becomes less direct and more incidental, you can give greater weight I would think to the compelling interest of the state in imposing those limitations. Harry A. Blackmun: Well, I just want to emphasize that I think it is unnecessary really for your side of the case to impress upon this Court that there is a problem. I think we are aware of this one? Daniel M. Friedman: I am sure you are and I hope you would resolve it the way Congress has resolved it. Warren E. Burger: Mr. Cox. Archibald Cox: Mr. Chief Justice and may it please the Court. So I come late in the argument. I cannot resist saying just a word in recognition of the importance and weight of the responsibility that rests upon this Court in this case. Judging the constitutionality of the statute even when there are few are issues, less complicated issues and there are here, is always a solemn occasion, but here the issues are of even greater magnitude, indeed of a magnitude greater than any of those in any Federal Legislation I can think of in several decades, except perhaps the Civil Rights Acts of the 1960’s and certainly none go any closer to the heart of our Political and Governmental system. The attack I would emphasize, is leveled not only at the conclusions of the Congress and the President of the United States, but in substance it is leveled at the conclusions of a majority of the state legislatures and we must take it that much of this represents the conclusions of their people. There are 44 States that have disclosure statutes in one form or another. There are 37 States that put limits on expenditures, many of them going back a number of decades and there 10 States that have been adopted public financing. So, that in addition to the weight of the judgment of the Congress and the President to sign the legislation, there is this added problem of the state legislature. Now of course if it is the court's responsibility the whole the Act unconstitutional, it will do it as this Court always has, but I submit that those are considerations that should be weighed in the balance. My argument is directed to the proposition that ceilings upon contributions and expenditures are consistent with the First and Fifth Amendments both as a back did on the face of the statute and as applied to any situation ripe for adjudication. It is important at the outset to be clear about exactly what the ceilings on contributions and expenditures do and do not do. The Act deals with conduct, the giving and spending of money. The conduct is speech related, I acknowledge and indeed emphasize because money buys the facilities of best communications and leveraging the money available for political campaigns, available for spending may of course to some degree reduce the amount that is spent for mass communication. But even so the conduct to speech related, I emphasize that it is conduct and not speech. The FECA does not prohibit, punish or attached liability to utterance, communication or publication except in the very limited sense that in the case of expenditures one may have to look at the publication to see whether it urges the election or defeat of candidates. So, it will be evidence as to purpose, but in no other sense -- Potter Stewart: That would be only under -- Archibald Cox: 608 (e). Potter Stewart: -- 608 (e), would it not? Archibald Cox: That is correct, Mr. Justice. But there is no attempt under 608 (e) or anywhere else to censure directly or indirectly the ideas expressed or the verbal or pictorial form communication. Equally apart, the public injuries at which the Act is directed are the consequences, not of speech, but of conduct. Congress was not saying that there is too much speech. The dangerous thoughts were being expressed, that the wrong people were expressing or that they were expressing them in dangerous ways. Congress was concerned with what we call the arms race political expenditures. With the pressure to raise vast financial resources, the corrosive influence of obligations to big contributors upon the conduct of Government, with the laws of public confidence in the honor and integrity of Government when money spent plays too big a role. And with the political inequalities resulting not from the volume of speech, but from the need to raise money and the indebtedness to those who provide big money and I think those two characteristics of the statute fix the applicable First Amendment principles, although I do not suggest for a moment that they render the First Amendment irrelevant. When the Governments attempts to deal with speech directly then a case for regulations has to be made wholly or in partly at least in terms of the danger, the danger of the consequences of the ideas. Mills in Alabama’s are very good example. The Alabama statute forbade last minute newspaper editorials on Election Day. The only conceivable justification was that the ideas expressed would have somehow have too much impact upon the public and it was quite right for the court to reply as it did in that case, no test of reasonableness can save such as state law. The reason is that censorship concerned for the ideas expressed may suppress the information or criticism essential to Self Government. It carries danger of discrimination among ideas or speakers and there is sometimes have been said, it carries the seeds of an official ideology. And, of course in such cases there is little or perhaps no room for balancing because the very purpose of the First Amendment as James Madison said “Is to withhold the censorial power from Government and retain it in the people.” The cases that illustrate this proposition are the case of the Pentagon Papers, New York Times against Sullivan, Miami Herald against Tornillo and the Red Lion Broadcasting case. I want to make clear -- plain that we are not quarreling with those cases and we have no need to invoke any of them in our support. Cases like the present which involves the regulation of speech related conduct because of the public injury done by the conduct, quite apart from the speech call for an entirely difference step. Such a law carries few with any of peculiar risk of censorship. It does not suppress criticism, ideas or information. It rests no discrimination. It carries no seeds of official ideology. Balancing in such cases is appropriate and has often been sustained by the Court. Weinberger and Hayes is an admirable example. They are the conduct, a duty to testify was of grave public important just as it has to giving evidence by all of us is grave public importance. It was argued that regulating the conduct imposing that duty would tend to chill or deter of the flow of information to the public. Both the opinion of the Court and the principle dissenting opinion as I read them, I agreed that the test was rather the consequential effect upon the flow of speech was justified by the public interest served by imposing the duty to testify. The Draft Card burning case, United State against the O'Brien is another example. After observing that the possession of the Draft Card contributed to the effective administration of the selective service laws, the Court observed the case at bar is therefore unlike one where the alleged Governmental interest in regulating conduct rises in some measure because the communication itself thought to be harmful and the Court will recall that it is went on to speak of the need for balancing and to hold that the public purposes, if compelling or paramount were sufficient to justify the purely consequential and in that sense coincidental impact upon speech. I hold this part so important that I want to take one last example to elaborate. The appellants and the Solicitor General assert that limiting the money spent to publish a newspaper would violet First Amendment and they are like in this case to the case of the newspaper. I submit that they both speak too indiscriminately. A limitation on the publishers’ expenditures would violate the First Amendment if it is rested upon some notion that the columns were too long, the editorials were to frequent, the circulation was too wide. There were too many additions or something of that kind, but consider. During the war time shortage, Congress certainly could limit the money that could be spent to buy newsprint even though the consequence was to reduce the circulation of the paper or the number of editions. William H. Rehnquist: What happens Mr. Cox, we have to limit it even handedly, would it not? Archibald Cox: Oh! Yes, but we say this statute does limit even handedly. William H. Rehnquist: Well, but it limits the amount of money that can be spent on political contributions or on 608 (e), the amount that can be spent for individual expressions in support of a candidate, but it does not limit any other kind of expenditure? Archibald Cox: I would have to agree that because the dangers that the statute is directed to operate in the area of political campaigns, the only speech that is consequentially effective is political speech. I cannot dispute that. I would simply say that again was not based on a congressional judgment as to something desirable or undesirable about political speech and certainly contained no kind of discrimination between different political ideas or parties or candidates. Potter Stewart: It does limit only a certain kind of political speech, now, whether not that maybe helpful to you, but I -- Archibald Cox: Yes, I was thinking of kind in terms of ideas Mr. Justice. You are quite right. It will bear of course on the least personal forms of speech. Well, it does not bear on an individual's personal -- Potter Stewart: General, political views if he wants to understand Section 608 (e), he can spend (Voice Overlap) Archibald Cox: I think we have the same idea. I may have misspoken myself and I think that does in a very real sense help this up. But I would say that this kind of discrimination Justice Rehnquist is coincidental or consequential and it is not the sort of selectivity or undesirability that would be enough to make a different test applicable. Warren E. Burger: Mr. Cox would not the limits that is the disclosure limits, the $100.00 limit, the $1,000.00, the expenditure limit could not they be so low or if they were cast so low, do you agree that they might then impinge on First Amendment rights? Archibald Cox: I would. I would agree to two things that if they are set so low as really not to allow any use of the mass media that would present a very different case in the one here. I would agree too that if they were set very, very low they might then discriminate against challengers to incumbents, but on both points I submit Mr. Chief Justice that the record is very clear that that it is not the consequence of the statute. In terms of the expenditure ceilings it is quite clear and the figures are all in our brief, that the ceilings are very close to those which have governed in political campaigns in the past. For example in 1972 and 1974 lumping the whole 2000 candidates for the house together, 97% spent less than the ceiling. There is now suggestion that there was inadequate speech in those 97% of the campaigns. Even in the case of presidential elections, the figure is very close to the average amount spent by the two candidates in 1968. It is a little bit above the amount -- a little bit below the amount spent by Senator McGovern in 1972. It is way below the amount spent by his opponent, but it is higher than we spend in any previous campaign so that we say that it is closely related to what took place in the past. That one has to conclude that Congress had a solid basis for judging that this would not seriously curtail the volume of political speech. Potter Stewart: I want to be sure that I understand your answer to the Chief Justice's question. You said that you would agree or you would believe that if the limits were set lower that there could be a point where they were I permissively low as a constitutional matter, is that your answer? Archibald Cox: Yes. Potter Stewart: Now, the limits on what contribution and expenditures be low -- Archibald Cox: I was speaking of overall limits on expenditures. Potter Stewart: How about disclosure? Archibald Cox: Disclosure, I did not in my answer have that in mind. I do not think the limit on disclosure, that there is any reason to suppose that will affect the volume of speech at all, not just like -- Potter Stewart: In other words which would be just as constitutional, would it not, in your submission to require disclosure of a $1.00 contributor as it would be a million dollar contributor, so far as the constitution goes? Archibald Cox: Well, the constitutional argument is stronger in a case of requiring the disclosure -- Potter Stewart: Why? Archibald Cox: Because there is more danger of the million dollar contribution being corrupted and there is more reason for the public to wish to know who is giving a million dollars to a political campaign. Potter Stewart: That is there is a greater invasion with respect to the -- Archibald Cox: A greater what? Potter Stewart: Invasion of privacy with respect to the large contributor -- Archibald Cox: No, I think the change in balance, if any, is on the justification, not on the invasion. So far as this record shows, there is very little -- there is no showing of any deterrent effect that disclosure. These laws have been on the books for a very long time. Of course if one could contribute, especially if it is a group of corporate executives that are contributing they rather contribute before the disclosure law becomes effective than after as one of the Justices find it out, that does not show they would not contribute there. Lewis F. Powell, Jr.: Mr. Cox, I as understood you, you express the view that a challenger is not disadvantaged by this Act. May I put this hypothetical to you? Suppose the challenger is in a District from which the member of Congress has said say for 10 or 15 years and therefore is very well known. Assume further that the entire media in that District supports the incumbent. Would you think he would have much of a chance, I realize that would depend on the facts and circumstances, but (Voice Overlap) disadvantage. Archibald Cox: I was speaking Justice Powell in terms of the general impact and I will agree that you can think of cases were the only way in which a man could win was by having to spend enormous sums of money himself because everything else was staked against him and I was thinking of the generality, I got into it by attempting to grab in answer to the Chief Justice’s question, that if the overall limit on spending were very, very low than the man who has recognition to begin with, of course, would have an advantage. The point I was seeking to make was that the ceilings here are not that low and I think that again is shown by experience and of course the burden of showing is not those defending the statute, it is on those attacking. But if you look at the ceilings, on the basis of the 1974 Election, it seems that they give ample chance to challengers to gain recognition. And second that taking the Act as a whole, they hurt incumbents who probably have the greater money raising capacity more than challengers. Let me give just a few things. I pointed out a moment before that only 3% of all the candidates in house races, it is little less than 3% exceeded the ceilings in 1972, 1974 even after 1972 was adjusted for inflation. Of the forty successful challengers in 1974, only one exceeded the ceilings. Of the 28 challenger winners in close races, that is where the winner got less than 55% of the vote, the average spent was only $95,000.00 out of an overall ceiling of a $168,000.00 for the combined primary and general election. Of the candidates in close races in both primary and general election, in 1974, only 459 exceeded the combined ceiling. So, there really is very little ground for arguing, that these ceiling which really check the sky rocketing increase rather than cut anything very much back, particularly in the congressional races do not allow adequate opportunity to become known and I can find no basis for arguing that on the whole -- Speaker: Alright. Archibald Cox: -- they fail, they discriminate against challengers. I think if they do anything they hurt incumbents more than challenger. Harry A. Blackmun: Mr. Cox that the legislative history show that the kind of analysis you just given us? Archibald Cox: Did Congress what? Harry A. Blackmun: Did Congress make the kind of analysis in fixing these limits that you just been suggesting? Archibald Cox: I am not able to say that it did, I think one most assume that many members of the staff and others did study these things and I am informed -- Harry A. Blackmun: Well, I just wondered whether the legislative history reveal that kind of analysis? Archibald Cox: Perhaps I have a moment after lunch in which I could answer your question Justice Blackmun. Byron R. White: But at least the Congress decided what the amendments are going to be? Archibald Cox: Oh! Yes, after considerable discussion. Byron R. White: They apparently thought that this would be enough money for anybody to -- Archibald Cox: And these were men who had run in many, many races, sometimes most recently as winners, but I have no doubt many of them sometimes disclose. Byron R. White: But the difference that you might give to a congressional judgment in how much money it might be appropriate, it may not be the same if when we are talking about how much incumbents thought can challengers might need. Archibald Cox: Well, I find it hard to believe that all 435 favor incumbents entirely. I recognize the point. I recognize too that this is a First Amendment case and that the judgment perhaps requires somewhat closest scrutiny, but I would think that the Court should simply act as a legislative body, I have -- excuse me. Byron R. White: Your answer apparently is what you already given that they saw in history, incumbents would not do any better than challengers? Archibald Cox: That is correct and indeed I think the history shows much either way. It is shows that the incumbents are hurt more because they nearly always spend more both when there successful and unsuccessful and this we draw from the figures on the close races. Warren E. Burger: I take it your answer give some weight to the incumbents on a lot of ability and assets that challenger do not have, namely large office staffs and branch offices out in the District that sort of thing? Archibald Cox: I recognize -- Warren E. Burger: What is news, news worthiness to what they do that the challengers do not always have? Archibald Cox: There is no question that the incumbents have advantages sometimes the disadvantages, but they are likely through name recognition to be advantages. My proposition is that this statute does not make challengers any worse off in that respect than they were before. Now, some have mellifluous voices and others do not. They are all kinds of injustices in the world. I say this statute does not make it any worse and we developed that in some length in our brief. I would add to that Mr. Chief Justice that the most that is contended, is that on the average as I understand it because the word generally is included in the heading in the brief that on the average they contend statistically somewhat more incumbents may benefit and challengers be hurt than the other way around. But one does not make a case of unconstitutional discrimination by that kind of statistical average. Furthermore, all it seems to me say is that challengers gain more from the pernicious practices and incumbents and we would say that the pernicious practices are the evils, Congress were meeting or was meeting are such that they justifies certainly any chance differentiation between them. Warren E. Burger: Well then I suppose you would say that were the whole area is foggy than the land drawing should be left to the Congress? Archibald Cox: I would certainly say that -- yes Mr. Chief Justice? Warren E. Burger: We will resume there at 1 o’clock.

Earl Warren: Mr. Mahoney. William B. Mahoney: Mr. Chief Justice, associate judges. This matter is here on certiorari from the Court of Appeals from the Second Circuit which Court reversed an order of the honorable Thomas J. Murphy, a United States District Judge for the Southern District of New York, which had disapproved the findings of a naturalization commissioner and ordered that the application of Tak Shan Fong for naturalization under Title 8, Section 1440a of the United States Code be granted. The statute that we're concerned with Your Honors is, as I have stated, Section 1440a, and we are more concerned with an interpretation order, a construction of subdivision II which we'll find on page 2 of the petitioner's brief of having been lawfully admitted to the United States and having been physically present within the United States for a single period of at least one year at the time of entering the armed forces. Under those circumstances an alien maybe naturalized under the requirements of that chapter. The factual situation in this particular matter is that Tak Shan Fong, a native of China, shipped from China in 1951 on board a boat known as the Ocean Star and he -- the boat docked at Honolulu in the territory of Hawaii and he was granted a 29-day seaman pass. As a result of receiving that pass he was in Honolulu for a period of 29 days and at the expiration of that time, he boarded his vessel again and left Honolulu. And in January of 1952, approximately four months thereafter, the same ship docked at Newport News, Virginia and that was in January of 1952. Now on that particular question you will find some conflict at page 8 of the record in as much as the exhibit attached to the record shows that the man allegedly jumped ship. On the other hand there is a reference to testimony on the part of Tak Shan Fong to the affect that he was given permission by the officer in charge of the ship for shore leave that he left Newport News, Virginia went to New York and upon his return four days later the ship had left port and he was without ship. Speaker: The -- the Court of Appeals held that he had jumped ship as in illegally, didn't it -- isn't it? William B. Mahoney: The -- yes, they have held that. Speaker: And you're not asking us to review that finding of fact, are you? William B. Mahoney: Your Honor, I think that it's essential to do it in view of the sparsity of the record in this particular case, particularly as to what appeared before the naturalization examiner sometime in January of 1956. As I said -- Potter Stewart: Does it really make any difference to your argument whether he jumped ship or whether he just overstayed his leave? William B. Mahoney: I don't think so, no, I don't, I really don't. I think we have a more substantial question involved here. As I said that was January 1952, when it's alleged that he jumped ship and it was in June of 1952 that he was apprehended in New York City and deportation proceedings were instituted against Tak Shan Fong. While those proceedings were pending and pursuant to the provisions of the Selective Service Act, he was compelled to register. And in May of 1953, he was inducted into the Armed Forces of the United States and he served in the Armed Forces of the United States from May 4th, 1953 until May 3rd, 1955 when he was honorably discharged. Now, in between that particular period that I have just indicated induction of May 4th, 1953 and May 3rd, 1955, the local board, that is the Selective Service Board received a communication from the Immigration Service in New York City asking for official confirmation of the fact that this man had been inducted into service, that was in September of 1953. There is nothing in the record here that would indicate that there was ever a reply to that communication, but it's quite logical that a reply was given to the immigration service in New York City to the affect that the man was already in the Armed Forces of the United States. Nothing was done by the immigration knowing that the man now was in the Armed Forces of the United States. But in January of 1954 an order of deportation was issued, but the delivery bond was suspended and the proceedings updated because of the fact that they then have knowledge that he was in the Armed Forces of the United States. Now, that was January of 1954. They do nothing about it. They left the man go on and continue to serve in the Armed Forces of the United States. As I said before, he was honorably discharged on May 3rd of 1955. And from that period up to and including December 22nd, 1955, the immigration authorities take no action whatsoever. But on December 22nd, 1955, he filed a petition for naturalization under the provisions of Section 1440a of 8 United States Code and immediately a hearing was directed. At that particular hearing, the naturalization examiner knew nothing of his legal entry into the United States in 1951. And although he found that Tak Shan Fong came within all the other provisions of Section 1440a, he nevertheless found that he had entered the United States unlawfully basing it upon this so-called jumping ship in January of 1952. So that he made a finding to the effect that the man was unlawfully in the country therefore he doesn't come within the purview of the provisions of Section 1440a. And he recommended the denial of the petition. That came on before Justice Murphy in the United States District Court for the Southern District of New York. And at that particular time counsel who was then representing Tak Shan Fong called to the attention of the Court that this man had been legally in the United States in 1951 in August. An opportunity was given to the examiner to verify that particular fact from the official records, and it was so verified. And as a result of it, Justice Murphy made new findings of fact wherein he decided that the man was lawfully in the United States and that he came within the purview of all of the provisions of Section 1440a. He directed that an order of naturalization issue. The order was issued.The man appeared, qualified, certificate of naturalization was granted. The government took an appeal from that particular order and it came on before the Circuit Court for the Second Circuit. And when this came on for argument that Court had already decided in the matter of U.S.against Boubaris which the Court will find in 244 F2.d at 98. That was before a bench made up of Justices Lumbard, Waterman and Judge Hincks. Earl Warren: We'll recess now. William B. Mahoney: Yes, sir.

Warren E. Burger: We will arguments next in National Society of Engineers against the United States. Mr. Loevinger you may proceed whenever you are ready. Lee Loevinger: Mr. Chief Justice and may it please the court. The National Society of Professional Engineers the petitioner here appears in the most extraordinary position. It is opposing the government in advocating the public interest by arguing for an ethical principle which protects the public against injury and clients against cheating. The government on the other hand takes the position that these matters are not matters for consideration by the court because it invokes the rubric of Per Se, indeed as I read the governments brief the term public interest does not appear in it once. The principle that we sustain that clears the solicitation of engineering work by competitive bidding before consultation with the client or determination of the scope of the work to be contrary to the public interest and therefore unethical. The alternative method of solicitation of work by bidding is the traditional, ethical method which involves an initial selection of an engineer by qualification, with fees proposed after consultation with the client and after determination of the scope of the work. It is basic to understand that engineering involves solving practical problems by the application of science, there is a great deal of testimony on this subject. So that each engineering problem is essentially unique and indeed each engineering solution is really a new scientific invention. To determine the nature and the scope of engineering problems and their solution requires substantial consultation and negotiation between engineer and client. The fee is then calculated and the client is perfectly free to accept or reject any fee that is calculated and to engage the engineer or not engage the engineer and go on and negotiate with other engineers if he likes. Warren E. Burger: Anything from preventing him from asking two engineers to embark on this process at the same time? Lee Loevinger: It is impractical Mr. Chief Justice, it has been found that it does not work just it is like trying to conduct a private discussion with two people. I do not know that there is any specific statement on this subject, there is explicit testimony that there is nothing to prevent a client from negotiating with as many engineers as he likes even on the same day. Warren E. Burger: But if he does not like the first engineers estimates, he certainly-- you have already said then he can try again Lee Loevinger: He is free to negotiate with second or third or fourth or fifth as many as his patience will sustain. Speaker: No charges routinely made for this preliminary negotiations Mr. Loevinger? Lee Loevinger: Sir I am sorry. Speaker: Are charges routinely made? Lee Loevinger: No sir, there are no charges made, there is no engagement, there is no obligation on the part of the client at this stage of the proceedings. William H. Rehnquist: There is a good deal of engineering work that goes into the sale of some complex electrical equipment that is manufactured by electric or equipment manufacturers too is it not? Lee Loevinger: This principle incidentally has four important exceptions. In the first place it is confined exclusively to the design to work related to the design of real estate structures, it does not apply to research and development work, it does not apply to study contracts, it does not apply to so called turnkey contracts, engineering works that relates to the design of products to be manufactured is not involved in this principle for the very good reason that products are tested before they are sold. The reason that this applies is that real estate structures are not tested, there are not prototypes. R&D work on the other hand results in a prototype. A prototype is thoroughly tested before it is exposed to the public whereas real estate structures are occupied by the public. There is no chance for testing them, if a building falls down the public is injured. It is exclusively confined to matters that immediately affect public interest. William H. Rehnquist: So you say then that this principle what you are enunciating what your clients have enunciated is an exception for the engineers from the Per Se rule only in the case of structures on real property. Lee Loevinger: I do not say it is an exception to the Per Se rule Mr. Justice Rehnquist. I say that the Per Se rule does not apply. The argument for the Per Se rule applies because of the strange construction which says that because this some how or other affects price, therefore it is price fixing, therefore the Per Se rule applies, actually it is an entirely circular argument. William H. Rehnquist: Well, let me -- perhaps I can ask you you a question that will solve my problem more quickly. Your distinction for antitrust purposes between manufacturers of electrical equipment who use -- which may be a one item deal and may take a great deal of engineering design skill and your client's code of ethics is that your client's code of ethics applies only to structures on real property which are not pretested for safety. Lee Loevinger: Yes sir, precisely. Warren E. Burger: Is their any way to -- I thought you said there is really no way to test a structure in the sense that you do prototype of an airplane or an automobile or wash machine. Lee Loevinger: Yes Mr. Chief Justice that as I understood Mr. Justice Rehnquist's question that this applies only to real estate structures precisely because they are not subject to testing. If you are designing equipment for sale whether it is automobiles or gadgets or jewelery or whatever these are articles that are designed and manufactured in prototype and tested before sale. Consequently the public has the protection of such testing and there are many opportunities for testing. Warren E. Burger: I suppose the substitute for that testing or at least the partial substitute is the building inspection which goes on from day to day or even hour to hour as a building is going up is that correct? Lee Loevinger: There is in fact testimony on that precise subject which points out that the building codes are not adequate substitutes for the code of ethics because they are usually behind times, because they are not effectively enforced because they do not subject to buildings to the same kind of tests as they get from the engineer who was on top of the job. In any event, we argue that to say that because there may be laws that relate to the same subject, therefore ethics are not applicable, it is inappropriate as to say that because there are laws against homicide therefore we do not need the Sixth commandment. Thurgood Marshall: There was something wrong at the Baileys Crossroads when that building came down -- Lee Loevinger: Yes sir that is one of the incidents that was testified too by witness whom we call probably no case has ever come before this court involving the application of the rule of reason, in which there is been testimony that has been so inclusive. We had as a witness the Head of the company that ensures over 60% of the professional engineers and architects of the country and who had over a period of 17 or 18 years personally investigated or in the later years when it became more, personally supervised the investigation of every malpractice claim that arose for this entire group of engineers. He kept statistics on the claims, on their causes he investigated the conditions under which the solicitation occurred and as matter of fact he concluded and the testimony stands uncontroverted in the record that there was a high correlation between the awarding of engineering jobs by bidding and claims of malpractice, inadequacy or negligence and it reached such a point that his company finally concluded that they would not issue malpractice insurance when there is any evidence of that a job has been awarded by bidding. That is how inclusive the evidence was. In fact he testified to over 17500 claims that he had investigated and at the time of his testimony, the claims were coming in at the rate of 10 a day of which more than one every single day involved injury or death to a member of the public. That is how ubiquitous is the threat we are confronting and this case is and the government takes the position that this is irrelevant. They do no take position -- simply it is not true they say it should not be considered by the court and the courts below believed them and proceeded on that basis and that is why we are here. Now, there is a testimony of many eminent engineers which stands essentially uncontroverted in the record as to the public values of the ethical method of awarding engineering jobs and of the bidding method. In the first place, the ethical method encourages a free exchange of information among engineers, the exchange of technical and scientific information whereas bidding tends to make them like businessmen who seek to hoard trade secrets and there is a public value in this. There is no government response to this point and there were no findings by any of the courts below. The second -- the ethical method was well testified, produces completely adequate plans which permits competitive bidding at the construction phase which incidentally costs about 20 times as much as the total cost of engineering and therefore increases and permits competition in construction whereas bidding results in inadequate and incomplete plans of the specifications and therefore frustrates competitive bidding at the construction phase. There is no response to this point in the Government brief and no findings below. John Paul Stevens: Mr. Loevinger, could I just ask you a kind of a broad question? What is the scope of the, just in what area should anti-competitive agreements be permitted? Is it because you deal with very dangerous products or because it is a professional society? Lee Loevinger: Mr. Justice Stevens, this is not an anti-competitive method. As we point out and as I believe our --. John Paul Stevens: But then if that is true, the potential for buildings falling down, effect professionals really all irrelevant? Lee Loevinger: No sir. John Paul Stevens: What is the relevance then if it is not anti-competitive at all? Lee Loevinger: It is relevant because our ethical principles being attacked by the Government under the antitrust laws but as we explain, in fact, bidding is false deceptive. Bidding cheats clients because it is not in fact genuine competition. Let me give you an example and as a matter of fact there are two examples in the record. The Government had a massive discovery procedure and got thousands of documents and incidentally this old illusion, I am sorry to divert from answering your question but I will -- John Paul Stevens: Yes, you know, through years and years it has been argued that the price cutter is unethical, on occasion it cheats the consumer and he does and do frauds, people know that, but why is this industry different from other industries? What is that that it is-- ? Lee Loevinger: It is different because when bidding is, when there is bidding for engineering services, the consumer does not know what he is getting. There is no way to specify what it is getting. John Paul Stevens: These are unsophisticated buyers we are dealing with? Lee Loevinger: No, there is possible way because you do not know if a sophisticated buyer comes in and says I want to construct a bridge from Brooklyn to Manhattan, how much will you charge me to design it. There is no way to tell what he is talking about. As a matter of fact, there is in the record an example of almost this kind of proposal which the Government put in by way of exhibit and which it cites sights in its brief as an example of an invitation to bid which the Metropolitan Transit Authority of New York talks about an invitation to present engineering bids on some -- they do not even say how many transportation centers, some centers that serve five communities and this invitation consists of five pages of questions, you do not even have to be an engineer to read this invitation and find out it does not specify anything. There is not a vaguest, you cannot-- John Paul Stevens: But supposing you are selling computers and the customer do not understand very much about it. Would that justify anti-competitive arrangements among computer manufacturers? Lee Loevinger: Computers are not in the same situation. John Paul Stevens: What is I am asking, trying to understand, what is the scope of the area in which you say the Per Se rules do not apply or anti-competitive arrangements maybe made. Is it the difficulty of understanding the business on the part of the buyer, is the fact that it is professional or is the fact it is dangerous? Lee Loevinger: It is the fact that in the situation and in the special situation presented on the record here, it is impossible to specify in advance either what is sought or what is being offered, the buyer cannot specify, no matter how expert he his, he cannot know what it is that he seeks because he has a problem, he does not have a notion of the solution to the problem. He does not know how the problem is going to be solved until we. John Paul Stevens: The rule would then apply to the medical profession and the legal profession quite clearly. Does that characteristic applies there? Lee Loevinger: I do not, as far as I am aware that the medical problems are encompassed to a somewhat smaller scope and do not involve this. John Paul Stevens: But surely the client that goes to the lawyer does not understand the answer? Lee Loevinger: No he does not have to understand the answer, but the client that goes to engineer does not know the question. John Paul Stevens: Does the rule that you are seeking to the Court to adopt apply to the medical, to the legal profession as well as engineering profession? Lee Loevinger: I am not prepared to say that it does because no such record has been made, we have a very extensive record here which presents precisely what the problems are in engineering and as I believe our brief, our initial brief points out there are substantial differences between the engineering profession in this respect and the other learned professions law and medicine, that the engineer deals with problems of different kind of order, of a different magnitude, of a different client. Engineers design vast structures, they do not treat individuals by and large whereas the lawyer treats with the individual. There is, as this Court has held certain, there are certain functions which this Court has said in Bates, can be considered as repetitive and even as routine, I understand there is some differences among the Court on that point but we accept the majority opinion of the Court. But the testimony is clear and uncontroverted, that there are no such matters in engineering that when a client goes to an engineer, the definition of his problem becomes a matter that requires expensive consultation and negotiation before it is possible to begin to formulate a solution and after the beginning of the formulation of the solution, the testimony was, it took about a third of the total amount of work before you arrived at that point and then you formulate a solution. Then the engineer proposes a fee, the client is still free to reject it and then to talk to other engineers. William H. Rehnquist: Well as part of your argument, is it not Mr. Loevinger that unlike the Virginia State Bar case, this is not price fixing? Lee Loevinger: This is not price fixing indeed this is antithesis of price fixing. It is inherent and the principle that we are arguing for, that every single job should be separately negotiated and a fee separately arrived at based upon the scope of the work involved. I can imagine nothing more antithetical to price fixing than the principle that we here advocate. William H. Rehnquist: Well while even assuming that it is a concerted action which affects price nonetheless your claim is even even accepting that much, which I know you do not that in any event it is not price fixing and therefore it is not amenable to any Per Se rule that this Court has ever -- Lee Loevinger: Precisely. It is not price fixing sir, the most that can be said of it is that it affects the time and manner of arriving at the price. In that respect, we believe that it is an fortiori case under Chicago Board of Trade. Speaker: Mr. Loevinger, does your principle forbid two engineers from engaging in the same conversations about the same project with the same client? Lee Loevinger: It does not say anything about that, Mr. Justice. Speaker: So it is really just bidding, it does not forbid competition? Lee Loevinger: That is correct. Speaker: If it is not really, it is not unethical in this business for a engineer to talk with a client when he knows that the client has had the precisely the same preliminary conversation with another engineer? Lee Loevinger: Well, indeed it has been testified that a client may have serially or whole conversation. Speaker: So that the principle is not to prevent competition among engineers? Lee Loevinger: That is correct sir. Warren E. Burger: Goldfarb on other hand had a record which shows that no lawyer consulted, there were great many of them would do the work for less than the price specified in the fee schedule. So that was price fixing cleared, so that was held. Lee Loevinger: Mr. Chief Justice, if I remember Goldfarb correctly, it was specifically recited in your opinion that no lawyer even asked for additional information about the matter. He simply quoted the fees scheduled price. This principle requires engineers to get in and find out what the scope of the work is, and separately to consider and ascertain what this involves and to arrive at an independent judgment. Speaker: What if one engineers had this preliminary conversation with the client and he will give the client some figures, would not he? Lee Loevinger: Ye sir. This has been testified. Speaker: And then the client goes to another one and has a conversation and the second one says, have you talked to another engineer? Yes I have. Did he give you some figures? Yes he gave me some figures. And so he gives the second engineer the figures and the second engineer cuts them. He gives him a lower bid if you want to call it that. Is that forbidden by your ethical principle? Lee Loevinger: It would be forbidden if he did it simply on the basis of saying tell me how much the other man -- Speaker: No he has the conservation, he goes through the whole conversation. Lee Loevinger: If it is his independent judgment that this inappropriate figure it is not forbidden, no sir, it is encouraged and it indeed it occurs, there is testimony to that affect. Warren E. Burger: And the bid might be higher or lower? Lee Loevinger: It might be higher or lower, correct sir. Warren E. Burger: If bid is the right word, the response might be higher. Lee Loevinger: Response. I prefer that word, yes sir. Speaker: Is there no some restriction on when the information maybe given by the engineering firm to the client? Lee Loevinger: Yes that is precisely what this is. The engineer is not to give the client such information until he has had enough negotiation and consultation with the client to be able to ascertain the scope of the work. That is the restriction. John Paul Stevens: Not until after he is been selected to do the work. Lee Loevinger: Well he is not -- well it is an initial selection it is not involve an engagement Mr. Justice Stevens. John Paul Stevens: I mean it does not involve initial selection and all is left after that is negotiate the price of the services. Lee Loevinger: No, it has to negotiate the scope of the work, which involves the price of -- the fee for the services. But it is impossible for an engineer to talk to a client until a client has selected that engineer for the purposes of conversation. This is why -- this is simply a inherent in the nature of the process. Speaker: But a client can find out how much it is going to cost and still walk away from the engineer. Lee Loevinger: Yes sir. No question about it. John Paul Stevens: But he can not find out how much it is going to cost him till he has a engineer has a general notion of the scope of the work. Lee Loevinger: Yes sir, that is correct. Warren E. Burger: And if it is a big bridge for example he might – engineer might have to invest I suppose a great deal of time which he is then at risk of losing without compensation. Lee Loevinger: This happens, yes sir. And no doubt about it. I find that I have only ten minutes left Mr. Chief Justice I think that the basic principle has been explained to the Court I would like to resume my time for rebuttal. Warren E. Burger: Very well. Mr. Shapiro. Howard E. Shapiro: Mr. Chief Justice, may it please the Court. It would be useful I think for us to look at the text of the ethical rule which is the subject of this litigation. It is printed in the government's brief at page 4 as well as in the various opinions of the District Court, Court of Appeals and in findings. It defines competitive bidding as the formal or informal submission or receipt, a verbal or written estimates of cost or proposals in terms of dollars man days of work required, percentage of construction cost or any other measure of compensation whereby the prospective client may compare engineering services on a price basis. Prior to the time that one engineer or engineering organization has been selected for negotiations. The disclosure of recommended fees schedules prepared by various engineering societies is not considered to be competitive bidding. Now the purpose and affect of the rule were found by the Two Courts below to be the total suppression of price competition. Court of Appeals described it as a price maintenance mechanism. Petitioner does not challenge any of the findings of the District Court as clearly erroneous, and they were found not to be clearly erroneous. Speaker: Or he just suggested that -- as I understand that a client may have a conversation with one engineer and get a price for him, and then have a conversation with another engineer and get a price from him. Howard E. Shapiro: I must respectfully disagree with my colleague on that. Speaker: But that is what is -- Howard E. Shapiro: That is his contention. Speaker: That is what is his contention. That is and you think that the findings below are contrary to that? Howard E. Shapiro: That is my understanding certainly professional policy 10-F which is their interpretation of the rule that is incorporated into its enforcement and application does provide that although a client may talk to other engineers sequentially, he can not do it simultaneously. He is required to completely severe the relations before approaching another firm or putting it in another way, other engineers will not talk to the clients while he is talking to another engineer. It is considered unethical. Speaker: Are there findings in the record to that it said so? Howard E. Shapiro: The District Court did not make a specific finding to that affect, I would refer the Court to joint appendix -- Speaker: Because that is just saying what the rule means one engineer will compete with another. Howard E. Shapiro: That is what the rule means according to what the Courts below found Your Honor. Warren E. Burger: Now you were going to give us appendix reference. Howard E. Shapiro: Yes Your Honor. This is in our brief at page 42 we cite joint appendix 5767, it is 5767 and 9930, that is professional policy 10-F. The professional policy are interpretations of the rule of ethics by NSPE's Board of Directors of Board of Ethical Review. I have forgotten which-- Warren E. Burger: You spoke of a prohibition against talking to a second engineer until the savoring of the relationship of the first. Is there any relationship in the ordinary legal sense with the first? Howard E. Shapiro: Only in the sense of a -- not in a legal sense Your Honor only that -- Warren E. Burger: If you are having conversations. Howard E. Shapiro: You are having conversations but the second engineer will not talk to you while you are talking to first engineer. This has a very practical effect. Warren E. Burger: Is that different from let us say the medical profession? Unless there is open consultation? Howard E. Shapiro: I imagine you can talk to one doctor at a time without-- Warren E. Burger: Well if you do not disclose it -- Howard E. Shapiro: There is noting in the record I do not know the answer to your question Your honor. But I would like to return to the record here because this is a worthwhile claim. The rule on its face does not permit the disclosure of any price comparison information so that since you have no price comparison information you simply can not have any kind of price competition, there is no competition. It is something of a paradox I think for the petitioner to argue. Speaker: Well how can the rule prevent -- keep a client from disclosing price he got from one engineer to another? Howard E. Shapiro: It cannot keep the client from doing it but it can encourage the engineers not to talk to the client and that is what happens because this rule is enforced in effect by boycott-- Speaker: So, the second engineer under this rule should not listen to any price information received form the former one. Howard E. Shapiro: Should not even talk to the client until he knows that the first engineer has totally withdrawn, that there has been a negotiation, that they have failed to reach agreement on a price, then he can come in and talk. And what we have therefore is not any kind of price comparison or price competition, you have nothing but bargaining that all is allowed. Now this has significant practical effects. It means that the client seeking to go from one engineer to another has very significant search costs. It is an expensive process it take time it -- Warren E. Burger: How can an intelligent bid be made without on a large project, without a very great deal of exploration and study and discussion. Howard E. Shapiro: Certainly your honor-- Warren E. Burger: They do not have specification handed to them as contractor does do they? Howard E. Shapiro: No. And that is why no one suggests that there has to be rigid absolute advertised price bidding. The Sherman Act does not require that. What the Sherman Act condemns in this case is the collective imposition on clients and on engineer of a bar that lets them consider any aspect of price. They cannot even ask the engineer what is your hourly rate to give themselves some idea before they begin going further. These are matters. Warren E. Burger: Now wait a minute, you said they cannot ask the engineer. These rules cannot control the clients. The engineer may be prohibited from quoting an hourly rate. Howard E. Shapiro: That is right. I mean as a practical matter they cannot ask because the not only will the engineer not quote it but if the client persists in asking any engineer, the rule says and the record shows that the engineer approached must withdraw. In short, what we have here and this how the rule is actually enforced, is not only a rule against price comparison information, but a rule that restricts the disclosure of price information except where minimum fixed fee schedules are involved. And in addition is enforced by boycott. And we have incidents where that kind of a threat has been made. Speaker: Mr. Shapiro, you said towards the outset I think of your remarks that there was no claim here that the findings of the District Court approved by the Court of Appeals were erroneous. I call your attention to appendix to the petition for writ of certiorari, on page a 11, which no more than incorporates the -- sets out reproduces the opinion Judge Leventhal opinion for the Court of Appeals in which he says and I am reading, “we approve the District Court comments, finding that the rule is this rule of the society is classic price fixing and hence illegal per se.” I understood Mr. Loevinger strongly to context that this is whatever else it is not classic price fixing to which any per se rule is ever attached -- Howard E. Shapiro: Well your honor-- Speaker: And the District Court and the Court of Appeal explicitly found that it was? Howard E. Shapiro: Yes they did Your Honor and Mr. Loevinger contests the ultimate-- Speaker: No no this characterization of it, that he says this is not price fixing of a kind that any per se rule is ever attached to, in any decision of this court. Howard E. Shapiro: Well I think-- Speaker: Did you not understand him to say much the same things I paraphrased? Howard E. Shapiro: He said he means that contention in this court and his ultimate point-- Speaker: And in his brief -- Howard E. Shapiro: And in his brief but as far as the findings-- Speaker: And in the District Court and in the Court of Appeals I presume. Howard E. Shapiro: But as far as the findings of facts in the District Court, the specific findings he does not suggest that this rule has any other affect than what has been described forth. It cannot be, he does not argue that there is any disclosure of price information. He does not argue that there is any price competition under the law-- Speaker: But that is quite different from price fixing which is that agreed upon, uniform, single price. Howard E. Shapiro: No. Speaker: That is what price fixing means. Warren E. Burger: The Goldfarb price fixing? Howard E. Shapiro: Yes. In that sense that the engineers have agreed among themselves to maintain a certain price, the answer is no they have not agreed to maintain a -- Speaker: So the District Court and the Court of Appeals were wrong if we are talking about price fixing and that rather pristine sense of its -- Howard E. Shapiro: But the Court of Appeals was more careful in its opinion. It recognized that-- Speaker: I have just read you what the Court of Appeal says, we approve of the District Court's description that this is classical price fixing? Howard E. Shapiro: Because of its overall affect, because there has been a total suppression of price competition. There cannot be any in this-- Speaker: What lists down on the tip of your tongue, what other case is here that it say its competitors agree not to compete that is per se and illegal. Howard E. Shapiro: Well we would start with Socony-Vacuum, we would point to Container Corporation, we would point to -- Speaker: And do the cases say that it is per se because it is other side of coin from price fixing? Howard E. Shapiro: In affect yes, if there is a tampering with the price system that so operates that price competition can not function and that is what is involved here. Then that is also illegal per se, that is what Socony says, that is what Container describes and that is what we are arguing here. Warren E. Burger: But where would we find in this record evidence or a finding that they agreed in advance, the engineers agreed it among themselves in advance to on certain prices such as was found in Goldfarb? Howard E. Shapiro: Now you would not find that, we do not charge that. What we charge is a total a suppression of price competition. What the District Court found was a total suppression of price competition. What the Court of Appeals affirmed was a finding that there was a total suppression of price competition and they found it so closely related to price fixing that they considered it to be the same thing. Speaker: How could they affirm an agreement not to compete on the facts given in this record? Howard E. Shapiro: The language of the rule so provides if you totally suppress all price comparison information, you are agreeing -- Speaker: This is nothing like any sort of a territorial allocation or any of those agreements not to compete. Is not there good deal of competition-- Howard E. Shapiro: Not price -- Speaker: Among engineers to get clients business. Howard E. Shapiro: Yes there is, but not price competition Your Honor and that is what we are talking about. Total suppression of price competition or the possibility of price competition. Now, I just suggested a moment ago that no one is arguing that clients or engineers have to resort to some sort of rigid competitive bidding, they can decide for themselves the extent to which they will consider problems. Speaker: What if the rule was no engineer gives a price until he has had a talk, a good enough talk. And at the end of it he can give a price and but that is perfectly alright for a second engineer to talk to the same client, know what the price offered was but after he has had a good enough talk, he can give a price. Now if that were the case would you be here or not? Howard E. Shapiro: Well if we permitted sequential, simultaneous discussion that would be a different case. But simultaneous discussion is not allowed only sequential discussion is allowed under this rule and this effect-- Speaker: And it is not enough for you if there can only be sequential discussion but the second fellow can know all he needs to know about what the first fellow offered, that is still is not enough for you? Howard E. Shapiro: If there can only be sequential discussion then the client suffers a very severe and burdensome additional cost-- Speaker: But the client can always go back to the first engineer? Howard E. Shapiro: Or go back to the first, the point is that there is a, there is not an opportunity for price comparison in the way that price comparison is available every where else in our economy. Speaker: In this very large record that has been compiled was there any expert testimony making comparisons, analogies with the legal profession and the medical profession? Howard E. Shapiro: No Your Honor, there was expert testimony of this kind. There were officials and members passed, officials past and present of an NSPE, who as engineers testify that in their opinion, price competition or price comparison would be very harmful and undesirable. When they were asked on cross- examination, do you have any specific instances in which it is ever been shown that safety is impaired by the existence of some consideration of price, they would invariably answer, I have no specific instances. Reference was made to the testimony of an insurance executive Mr. Duvall(ph), Mr. Duvall's certainly established that engineering is related to safety but his testimony does not establish that price bidding or price competition is automatically tied to unsafe practices. For example, he mentioned the Baileys Crossroads incident which was in Mr. Duvall's testimony. Mr. Duvall said that building fell because cement supports were withdrawn too soon. That is a construction man's error and the testimony went on to say of course the case is in litigation and I cannot say anymore. Warren E. Burger: But is there an appropriate foundation laid for his opinion and did he testify that he had examined the Baileys crossroad? Howard E. Shapiro: No he did not Your Honor. He gave us about 17, he was testifying from his experience as an insurance executive. In the business of insuring engineers and construction people. He gave many examples but if each one is examined in detail, one finds what he described was the fact that accidents can occur when there is bad engineering or dishonest engineering. Speaker: In the Baileys Crossroad incident had the engineers competed for the engineering job? Howard E. Shapiro: The record does not show as far as I know. Well, proceeding on with the affects of this rule what we see is that it is based on two premises. One that engineering clients should always be kept in ignorance of the price comparison information for their own good. They cannot be allowed to anything about price comparison information and engineers cannot be trusted to do their job safely, if clients can make price comparisons. So it denies relevant information to the client, it prevents the engineers from offering services on their own terms. It allows only price bargaining not price competition, because it totally suppresses price competition. The rule is certainly not pro-competitive unless you want to save at the total suppression of competition is pro-competitive. Now these were the findings-- Speaker: Now the question here is that the per se violation not admitting of the possibility of any justification in terms of the rule of reason-- Howard E. Shapiro: And our argument is-- Speaker: Yes of course that has to be, that it is -- Howard E. Shapiro: Yes Your Honor and that it really is a classic case of price fixing because it serves as a price maintenance device. The economic testimony in this case by professor Arnold at the University of Illinois was a government witness test was to the effect that with this kind of a rule engineers do not have any incentive to cut their prices because they are not competing with each other. They have an incentive to cut the costs but not the prices. So you have a kind of price maintenance effect and that is what Judge Leventhal summarized these findings as meaning. Now, I should say that a per se rule here does not bar NSPE from adopting any kind of specific rules. It requires aims at fraud, at deception, at over-reaching, at disregard of engineering standards. These are rules aimed at specific abuses but they were not before this court. They were not before the District Court, the only thing before the Court is this total abolition of price competition. It is suggested that the case should nevertheless be reviewed under the rule of reason because a learned profession is involved or because price competition is unfeasible in engineering or because engineering affects public safety. Well, as I understand it NSPE now concedes that except for real estate construction, price competition is feasible in engineering. It is certainly practical for routine tests. It applies in the most difficult area of all research and development contracts where it is most difficult to predict what cost will be and the engineers themselves have had fixed fee schedules for years in their state societies which this rule specifically refers to. Now that again implies that there are certainly tasks where price information can be disclosed. The second possibility for the rule of reason argument is that there is a learned profession exemption. Certainly in Goldfarb, there was a note of caution in footnote 17. The court in holding that Goldfarb involved classic price fixing and learned professions were not exempt, also said in Footnote 17, there might be situations with the public service obligations of learned professions require different approach under the antitrust laws. We express no view except with respect to the matters before us. I think the short answer is that yes in the learned professions there may be different public service requirements that justify a rule of reason approach where would not apply in other professions or other activities. William H. Rehnquist: How do we know a learned profession received -- Howard E. Shapiro: That is one of the problems that the term is not defined and would have to be explored. I do not contest the learned profession nature of the engineering profession. We did not contest it below. But I do suggest that whatever the scope of the learned profession caution like in footnote 17maybe in Goldfarb, it does not authorize the total suppression of all price competition because price is the central nervous system of our economy. Finally there is another aspect to this learned profession problem. Up to now in the antitrust laws we have not considered rule of reason or per se except in terms of the market place, in terms of competitive effects. A per se rule is a rule which on balance between pro-competitive effects and anti-competitive effects almost always has anticompetitive effects and therefore we do not make any further inquiry. A rule of reason approach says let us see what the other competitive effects are, but there has been a caution in the loss and strengthen potteries, not to step beyond competition which is what the Sherman Act is concerned about, for the courts not to step beyond competition and to go in for the questions of social policy that involved other justifications. Now in this record we have a rather strongly contested contention that public safety requires the abolition of price competition and engineering. There is a contrary view, we presented an expert witness from Secretary of Airforce who said there is no objective evidence to support this kind of view that price competition results in unsafe practices. Speaker: Mr. Shapiro, what do you think Congress had in mind in Brooke's Act? Howard E. Shapiro: The Brooke's Act is a good example of what we are contending for namely that the client should decide for himself whether and to what extent he wants to consider price. The Brooke's Act certainly was an exception of the antitrust laws, it represented a judgment by Congress, in a particular area of government procurement that engineering services would be acquired by the so called traditional method. Many states also have such provisions and we do not deny that. That is a case where Congress did the balancing and Congress made the determination. It incidentally did not appear to be motivated primarily by safety, it was concerned more with the traditions of the profession there and it expressly said in a report -- Speaker: Now, as expressed in the Legislative History in a discussion with this particular ethical rule? Howard E. Shapiro: I do not recall specifically that it did? It did include a discussion of the then pending report of the government -- of the commission on procurement, and noted that the matter was still under discussion. That report which is on the record concluded here that its GX 346 -- concluded that there is no objective evidence that there is a threat to safety, because of price competition. The problem with relying on public safety arguments in the context of an antitrust case in which court would balance public safety against competition or some other non-competition factor against the suppression of price competition , is that it is a slippery slope, that is the term that was used in their reply brief. The same argument could justify privately imposed restraints in most industries. You could take the construction industry, the same argument -- Speaker: Doesn't your case depend on your making stick the per se approach? Howard E. Shapiro: That is the case which we have made Your Honor. We stand with that. Speaker: You do not think the Brooke's Act bears at all on whether or not the per se rule should be applied in this case? Howard E. Shapiro: No, we do not Your Honor. Speaker: You have Congress saying, well, we prefer to get engineering services by this particular method, and yet but just remember that we have another statute that says that no one else may do it. No one else will have this privilege. Howard E. Shapiro: Congress will in effect balance the considerations itself and-- Speaker: But if it is such an unreasonable method that it should be per se illegal? Howard E. Shapiro: What is unreasonable is the concerted imposition. Speaker: Well, your answer is yes. But do you say that these two statutes side by side -- you can ride both horses? Howard E. Shapiro: Yes, we can Your Honor. And I will explain it in this way. What the Sherman Act is aimed at is the concerted imposition of the suppression of price competition by private action. What the Brooke's Act reflects is a decision by congress or an appropriate government agency to forgo price competition. If this case stands it does not mean that there is going to be price competition across the board. Some engineering clients are going to say let us just pick the engineer we consider the best and talk with him. If we cannot reach a price we will go through a sequential negotiation. Some people will attempt what was attempted by the Department of Defense until it was frustrated by a boycott by the National Society of Professional Engineers. As the District Court expressly found. That was an experiment under which there were two proposals. Let us have your technical proposal which the engineers were willing to submit, and will rank you on your technical proposals, engineers and then submit to us your price proposals. And then we will see whether it will change our mind about our rankings of the technical proposals. That project failed in the summer of 1970. Warren E. Burger: Would that take in to account whether the construction engineer would may have a bid, had ever engaged in that kind of work before? Suppose if the (Inaudible) replaced the Brooklyn Bridge? Howard E. Shapiro: It would certainly take in to account things like reputation and ability. Clients are free to do this under the position we take, they may not want to use any kind of price competition, they may not want to know anything about price. It depends on the nature of the project and the circumstances. Some projects are so repetitive that they can almost be handled like standard construction bidding contracts. Others would be so unique. For instance, a research and development contract to which price competition applies incidentally but you might not really want to let in the ordinary sense. The extent to which price goes in to the equation is something for the client and the engineer to decide for themselves. That is all we are arguing for. Not to have it determined by a private organization. Warren E. Burger: That sounds something closely approaching a rule of reason. Howard E. Shapiro: Well, we think that it follows almost automatically from applying a per se approach. I mean as far as the consequence, as far as the client is concerned the -- applying the antitrust laws in this way lets the reason of choice. The rule of reason -- let me put it that way be applied by the individual client or the individual engineer. Speaker: Well, that is not what the rule of reason means as a term of antitrust law at all, is it? Howard E. Shapiro: No, in antitrust law the rule really means that balancing pro-competitive and anticompetitive effects not all kinds of social considerations. Speaker: But it does not mean you could justify for safety reasons either, justifies for competitive reasons. As the rule comes to promote competition. Howard E. Shapiro: That is exactly the point and that if there is to be a justification for safety reasons that the Congress should make that kind of decision. Now one very brief word on the judgment in this case. It has been attacked it is being over broadened violating the First Amendment. We think that if it is examined it will be seen that if the finding of liability stands here that this judgment precisely fits the violation found because it simply calls for a correction of the practice by eliminating the ethical restraint from any provisions of NSPE's rules by barring any attempt to achieve any same result of affiliated state societies by eliminating the fixed fee schedules mentioning any of the rules and then preventing the continuation of the practice. Speaker: You are speaking that the judgment as modified by the Court? Howard E. Shapiro: As modified by the Court of Appeals. Speaker: And the modification you do not quarrel. Howard E. Shapiro: We do not quarrel. Speaker: Mr. Shapiro, one last question from me, what is the significance, what is the Government's view of the significance of the fact, as I understand it that before serious negotiations began and when it is appropriate to talk price, there is a lot of work done by the engineering firm and there is no charge during that period? If that is the correct description of what happens in that? Howard E. Shapiro: It is not absolute, it varies, there maybe some preliminary discussions, there maybe a charge for a, what amounts to an initial consultation the rule -- Speaker: I had the impression the general practice was, it takes quite a bit of work to find out what a job is, the scope of the job and during that period the preliminary work is really not, not paid for. Howard E. Shapiro: Well let me refer the Court to a definition of engineering services in Professional Policy 10-G which was adopted by the engineers in 1972 and which is the basis for their restriction of this practice to real estate construction. Prior to that time under policy 10-F it applied to everything as we read it at least it literally did. It defines engineering services as including pre-feasibility and feasibility studies, so that comprehensive and general planning, preliminary studies preparation of drawings, plans, designs, specifications. In short, the rule defining engineering services recognizes as there maybe paid services that amount to fairly preliminary conversation, preliminary studies and that-- Speaker: Do you understand the rule that permit the firm to quote in advance a fee on doing a pre-feasibility study? Howard E. Shapiro: It does not -- it is against the-- it is an engineering service and therefore they cannot do that either, they cannot quote a price or they cannot even tell what their hourly rates are? Speaker: Until after the pre-feasibility study is done. Howard E. Shapiro: Until they have negotiated, until they have been accepted by the client. Thank you Your Honors. Warren E. Burger: Do you have anything further Mr. Loevinger. Lee Loevinger: Mr. Chief Justice and may it please the Court. I think that the last colloquy illustrates the difficulty of per se rule as applied in this case. Mr. Shapiro did not try the case, I believe he is not thoroughly familiar with the record and his application of 10-G is simply erroneous. Mr. Justice Stevens is entirely correct in negotiating the scope of the work and the possibility of engagement by a client, there is no charge and this is eminently clear. The difficulty is that you can not take a simple rule particularly when drafted by engineers, you can not even take one drafted by lawyers, but you can take a general rule drafted by engineers and apply it without understanding the circumstances out of which it grew any more than you can take the Sherman Act and talk about the rule of reason, the per se rule, and all the rest of this, without having some idea of the interpretations made by this and other Courts and indeed the engineers had a formal body known as the Board of Ethical Review which made these interpretations and there are these interpretations and there is a body of testimony relating to this matter which makes it perfectly clear that Mr. Shapiro misinterprets Section, Policy 10-G. Incidentally earlier in his argument and he referred to Policy 10-F which was superseded by Policy 10-G and simply is not in effect and is not involved and it is not issue in this case -- Byron R. White: What about simultaneous conversations, Mr. Loevinger? Lee Loevinger: Mr. Justice White, I think the difficulty with simultaneous conversations is that they are little bit like simultaneous consultations with the doctors, it is very difficult to see how you could get simultaneous-- Speaker: That maybe but there is a rule forbidden. Lee Loevinger: There is no, there is nothing in the record, nothing in the rule that I am aware of that forbids. Speaker: Mr. Shapiro says there is. Lee Loevinger: Well there is nothing in the record I am familiar with the record I know the record, I have read the briefs and if there is anything in it, I would like to have it referred to because I am not familiar with it. The rule is as it stands. And there is simply no testimony. Speaker: What was the basis for his saying then that I guess I should have asked him saying that the rule forbid an engineer to talk to a client, if he is already talking to an engineer until his relationship with the first engineer has terminated now what is basis for that? Lee Loevinger: There is testimony that once a client has begun talking to an engineer he is to complete his conversations with that engineer before consulting another that -- Speaker: Also he is right on that, you just would not find under this rule one engineer dealing with the same client that already has an engineer. Lee Loevinger: Barging in, in the middle of the consultation, that is correct, yes sir. Speaker: The simultaneous conversations are not permitted under the rule. Lee Loevinger: I would not say that they are permitted they are certainly not favored. Speaker: Other strict factual question like that I am surprised that counsel are not able to came to a closure agreement. Lee Loevinger: The question that as I, there were 17 witnesses I do not believe the question was asked to any of them. Speaker: It is certainly not irrelevant, is it? Lee Loevinger: I think as a practical matter that -- Speaker: What if the rule forbids one engineer to see another? Lee Loevinger: I think it is not a practical, it is about as impractical a simultaneous consultation with doctors I believe this is the difficulty-- Speaker: Mr. Loevinger, what does this mean when the rule says, an engineer, according to page 40 of the Government's brief, requested to submit a fee proposal or a bid prior to the selection of an engineering firm subject to the negotiation of satisfactory contract shall attempt have the procedure change to conform to ethical practices but if not successful he shall withdraw from consideration for the proposed work, what does that mean? Lee Loevinger: Means that if an engineer is asked to come in and give a bid prior to the opportunity to discuss with the client, the scope and nature of the work that he shall not do it. And that the testimony is pretty clear on that. Warren E. Burger: Well, let me see if I can get that concretely. Suppose that a building is pointed to by the perspective client and they say that the engineer, we want a building just like that one, what will it cost would, would you give us a figure right now? Lee Loevinger: Mr. Chief Justice, the repetitive bid or the repetitive project is a false issue. If what a client wants is a building just exactly like the one that has been erected all he has to do is to use the plans, specifications for that building. He has already got them, by definition he has got the building he has added erecting. Warren E. Burger: Well I am speaking now of building that he did not engineer himself, someone else did. Anything to prevent him from going to the other engineer and getting the plans? Lee Loevinger: The testimony is clear that there not two identical buildings, you can not build it in the same place and at different place you have got different problems, you got different problems, subsoil problems, you got different wind problems, you have got different traffic problems. There are host of different problems and in order even to determine the difference between partially repetitive projects you have to consult with the client and find out where do you want that other building? Where is it going to be designed? What is its purpose, what is the soil going to be like? There are host of problems, there are explored at great length in the record and this is precisely the problem. There is not, but there are identical problems, you cannot do this. And simply, that is so hypothetical simply does not-- Speaker: And let us suppose I am client and I go to an engineer and have a much talk as Mr. Loevinger thinks I ought to have. And I talk to him and I want a proposal from him, and the engineer gives it to me and then I would say that the – by the way I am going to take this proposal and submit it to another engineer and I am going to certainly talk to him all he wants to talk about, now what would be wrong with that, why would that be unethical? Lee Loevinger: There is nothing under the rule of ethics that relates to this, that is a matter of fact we assume that this is -- Speaker: Well I thought you said the second engineer should not talk to the first to the client until he is terminated his relationships with the first. Lee Loevinger: This point he has, he is – he has got-- Speaker: He says to the first one he says I am going to come back to you if I cannot get better deal out of the next fellow. Lee Loevinger: You can say that but he has terminated, he has terminated those talks with the first man, the consultation has been completed and this in fact does happen as far as -- Thurgood Marshall: When the word terminate really -- I talk to a used car dealer, you say, one guy will give it to you $4400, you say well I will come in a few hours and if it is still there, I will buy and meanwhile you go and talk to three of four others. Lee Loevinger: Presumably, this is conceivable. Let us say I do not know I understand that the practice is not exactly like that of used car dealers but there is nothing that relates to this the testimony is clear that, that there can be and are serial consultation. Thurgood Marshall: But terminated is not a word of art. Lee Loevinger: Well it is not. Thurgood Marshall: Well suppose the man, the first man says number one, I want this to strictly understand, or understood I have not terminated this, I am still perceiving with it, but I want to talk to somebody else. I do not think you can terminate it, he has to terminate it then. Lee Loevinger: I do not know, Mr. Justice Marshall, I have to say that the record again, this is one of those things that despite everything was not explored either on examination or cross examination. It would seem to me that how the conversations progressed to the point where the first engineer had been fully consulted, had made a fee proposal, it is for the scope of the work, the man said, okay now I want to go see somebody else that that is termination for the purposes of this thing, the point is these are not words of art. We have no problem with the concept of this maybe and artistically stated, indeed we have stated it from the very beginning that it can be reformulated, that the principle can be restated in any manner that is necessary in order to express it clearly. Speaker: Mr. Loevinger you are just using lawyer's language. When does this rule require the engineer to withdraw from consideration of the proposed work, it describes some situation in which the engineer has a duty under the rule to withdraw. What is that, when does that happen? Lee Loevinger: When he is asked to give a fee bid before he has had an opportunity to have studied the nature and scope of the work. Speaker: I see. Well Mr. Loevinger would you not have said that the rule at least forbids this. The client calls up the engineer and he says come over, I want I talk to you about the building, when the engineer arrives there, he finds another engineer there, the client says to both of them, we are going to talk as long and as hard necessary so you both understand the scope of the work and everything else and then I want you, I want you both to listen, ask as many questions you want to, then I want you both to go off and give me a proposal. Now I take it, the rule forbids that. Howard E. Shapiro: The rule forbids that. Speaker: And now why would it forbid that? That certainly is not the impractical. Lee Loevinger: The engineers considered impractical Mr. Justice White, they consider simultaneous that their stepping on each others stone -- Speaker: So that is an example when both engineers should withdraw. Lee Loevinger: At least one of them in fact, yes should. The difference, what this basically all comes down to is, that if you apply per se rule, there is no way to accommodate what the Government and the Court of Appeals concede to be a legitimate objective to the demands of the Antitrust law. It is only by the application of the rule of reason that the law can be accommodated to what both the Government and the Court of Appeals concede to be a legitimate objective. Warren E. Burger: Thank you gentlemen. The case is submitted.

Warren E. Burger: We will hear arguments next in number 93, National Labor Relations Board against the Nash-Finch Company. Mr. Wallace you may proceed whenever you are ready. Lawrence G. Wallace: Mr. Chief Justice and may it please the Court. In this case the District Court on jurisdictional grounds dismissed the complaint filed by the National Labor Relations Board and denied the Board's motion for a preliminary injunction. The Court of Appeals affirmed the judgment in all respects. There is no decision here on the merits of the Board's claim and there has been no findings of fact on which a decision on the merits would ordinarily be predicated. The decision was made is on the complaint and on the motion for the injunction. The complaint is set forth beginning at page Four of the Appendix. In it the Board recites that unfair labor practice charges had been filed with the Board by the union which is appearing here as amicus, the amount to made Meat Cutters Union against the respondent Company that on the basis of this charge, a trial examiner of the Board had found that the Company had violated the National Labor Relations Act in several respects by wrongfully refusing to bargain with the Union and by committing another unfair Labor practices relating to the union's organizational campaign. I should say incidentally that after the present suit was filed as the briefs point out, the Board in ruling on the company's exceptions disagreed with the hearing examiner, concerning their refusal to bargain and held that the Board -- that the Union had not established majority status, but the Board did agree that the Company had committed certain and other unfair Labor practices and issued a cease and desist order for which the company has complied and there is no question here about enforcement of the Board’s order. The complaint further recited that approximately one month after the issuance of the hearing examiner's decision, employees of the company began to picket the Company stores and the Company ran into the State Court and obtained an injunction against the picketing. The copy of the injunction was amended as an exhibit to the board's complaint. Potter Stewart: The issue in this case does not, resolution of the issue in this case at least in your submission does not really depend at all on the ultimate outcome of anything in the Board's administrative proceeding, does it? Lawrence G. Wallace: That is correct, Your Honor. This is strictly a question of whether there is jurisdiction in the District Court to hear the Board's complaint for an injunction against enforcement of the State Court's injunction by the Company. Potter Stewart: Then you say that merits even on the --unlike for injunction or not, have not been litigated and not before us? Lawrence G. Wallace: That is our -- Potter Stewart: Usual questions? Lawrence G. Wallace: That we have asked to have the case remanded for a hearing on the merits of the Board's complaint. Well, only the jurisdictional question has been decided below. We do not think the case is ripe for adjudication on the merits whether the injunction should issue; there has been no factual finding. Byron R. White: Mr. Wallace, would the hearing in the District Court which you suggest merely go to whether or not the activities that have been enjoined are arguably protected or would you say the District Court could decide then and there, whether they are actually were protected or not? Lawrence G. Wallace: Well, that question is very closely related to the question that divided court in the Ariadne case in 397 U.S. Byron R. White: (Voice Overlap) for you. Lawrence G. Wallace: Under the complaint in accordance with the majority opinion Ariadne. The compliant was put in terms of the activities being arguably protected or arguably prohibited. Byron R. White: So that they -- if your position is this that it were arguably protected the District Court should enjoin the (Inaudible)? Lawrence G. Wallace: Well, we understand that to be the law under guidance and related cases through Ariadne. Byron R. White: Even though there is no way of getting the issue before the Court is to whether it is actually protected? Lawrence G. Wallace: Well that is what we understand the law should be Mr. Justice. And there is no occasion at this stage, that the present case to reach that issue because under either view taken in Ariadne, we think saying this position would be appropriate here. Now, in a prayer for relief the Board was quite specific in stating that it wished to have enjoin the enforcement of those portions of the State Court injunction that were within the preempted area in the board's view and those portions are more specifically set out in the Board's motion for a preliminary injunction which is set forth in the appendix on pages 33 and 34 of our appendix. There is quotation or portions of the injunction which the Board seeks to have the enforcement of enjoined and there are several ellipsis in the quoted portions numbered one, two and three. The first occurred at the beginning of the Part Two and then some parts A and B of part two are omitted and then there is another ellipsis in part three. These ellipsis are those Parts of the order referring to the blocking of egress or ingress to the premises of the company to interference with the flow of traffic or the stationing of more than two pickets at anyone store owned by the company. So there has been no attempt here to oust the State Court of jurisdiction, like you are entirely supersede the State Court’s injunction and no where in the prior for relief is there any contention raised that the State statutes are unconstitutional under the First Amendment or under any other provision. There is no declaratory judgment about the Constitutionality of State statutes sought, nor any broad injunction against enforcement of the State statutes. Those issues that are mooted in amicus briefs in this Court in case with a suggestion that the abstention doctrine might come into play before a Federal Court should involve itself in that question, but the question has not been put before the District Court in the complaint or in the motion for a preliminary injunction and the question is not here as we see the case. Byron R. White: What about Younger and (Inaudible) sort of an approach or Atlantic Coast Line? Lawrence G. Wallace: Well, we have emphasized in our brief that we think cases concerning private litigation between private parties stand aside from the issue here which is the issue under the Leiter Mineral doctrine. Byron R. White: So if this were private parties trying to get the Federal Court injunction, the Younger case might well? Lawrence G. Wallace: Might well control and -- William J. Brennan, Jr.: Even though it opened the case? Even though most states (Inaudible) Speaker: (Voice Overlap)well it would might? Lawrence G. Wallace: I do not believe the Younger case would be the most closely in point. I think the Richman Brothers case, it would be more closely in point. Byron R. White: And the Richman case just to be heard -- Lawrence G. Wallace: I am unfamiliar with that case, Your Honor? Potter Stewart: Well, let say it is well common ground between you and your brother counsel on the other side, if the plaintiff were the United States of America, there would no jurisdictional bar and that if the plaintiff were John Jones, there would a jurisdictional bar and the plaintiff in fact is the National Labor Relations Board, that is what makes it closer? Lawrence G. Wallace: I think that is very accurately stated Your Honor. There is no dispute by anyone in this case is that if the suit had been brought in the name of the United States, the Leiter Minerals case would be controlling and I think that it is very difficult to read the Leiter Minerals case any other way. Potter Stewart: I should have conceded at least in his brief as I read it, by your brother counsel? Lawrence G. Wallace: That is my understanding. In fact, the only qualification of Leiter Minerals withstands that is raised in the whole of case is in our brief in which we point out that when the United States is pursuing not to protect the public interest but in pursued only of a private entrance that it had a duty to pursue, the Court has refused to extend the Leiter Minerals exception to that kind of case. That present case is not that kind of case. I do not think we need concern ourselves here with that kind of case but that is the only qualification on the doctrine that has been raised in the brief and the issue between us is whether the doctrine is more accurately characterized as we like to characterize it, as the governmental exception of the Section 2283 or whether it applies only when suit is brought in the name of the United States. We do not rely on any of the express exceptions in Section 2283. We find ourselves unable to in face the Court's holdings about the narrow scope of those exceptions. Potter Stewart: That case is Richman Brothers? Lawrence G. Wallace: That in Richman Brothers and it is more recently in the Atlantic Coast Line case. There has been no challenge before the Board concerning this picketing and the Board has clearly held that the filing of a state suit in good faith to invoke remedies under a State statute is not unfairly for practice. It is not within the scope of the Board’s jurisdiction to question. So the issue comes down to whether the Leiter Minerals exception and I do want to point out -- Harry A. Blackmun: Mr. Wallace through statutory exceptions what argument before the Eight Circuit was (Inaudible)? Lawrence G. Wallace: They did argue them. The Board argued them in both the District Court and the Court of Appeals at least abandoned the argument in this Court. The argument was rejected. It was made as an alternative argument. Now, I do want to point out that the holding of Leiter Minerals on this point seems to us clear and concise. It is set forth on page 23 of our brief and after the policies behind that are summarized by the Court. The holding is stated really in a single part of the sentence that we had at the end of quotation. The interpretation excluding the United States in the coverage of the statute seems to us preferable in the context of healthy Federal State Relations. Immediately after that sentence in Leiter Minerals, a new paragraph begins with the word that the Court will then turn to the merits of the question. The question still remains whether the granting of an injunction was proper in the circumstances of this case. Any discussion in the opinion relating to the particular facts of Leiter followed that statement by the Court. The interpretation of 2283 on the jurisdictional question was the simple interpretation, that the United States has excluded from the coverage of the statute. That interpretation is now unchanged by Congress for 14 years. Now, it is frankly difficult perhaps to think of reasons why it should make a difference in terms the purposes of Section 2283 or the rational of any of these cases. Why it should make a difference whether the suit is brought in the name of the United States or in the name of a particular agency? A recent decision by the Court of Appeals for the Second Circuit seems to us to illustrate this very well and we referred in our brief on page 25, Note 11 to the litigation that was then pending which has now been decided by both of District Court and the Court of Appeals, a case called the United States against City of New Haven. In that case a State Court injunction had been obtained against the use of a particular runway in the New Haven Airport, that Federal Aviation Administration, of course has jurisdiction over the safety of Airports and the provision of Airport services and it is part of the Executive Branch of the Government. It is now part of the Department of Transportation. The Justice Department in its behalf filed suit in the Federal District Court to enjoin the enforcement of that State Court injunction as having invaded an area within the province of the Federal Regulatory Scheme. William J. Brennan, Jr.: Mr. Wallace, is that Federal Aviation Administration in that respect different from the NLRB? It is the plaintiff in this statute that they are no United States, does that mean? Lawrence G. Wallace: It is different in that and it does not have statutory authority to bring suit in its own name, that is the difference. It is hard to see any other difference as I am about to point out. The suit was brought and the District Court upheld the jurisdiction within Leiter Minerals and issued to preliminary injunction and the Court of Appeals for the Second Circuit recently affirmed the granting of the preliminary injunction on a case decided August 31, 1971, docket number 71-1669, it is called United States against the City of New Haven. Now, it seems for purposes of the statutory policy in Section 2283, New Haven stands that the Federal Aviation Administration is not empowered to sue in its own name, sue within the name of the United States, yet other agencies which has very comparable responsibilities for the provision of the services to the public, such as the Interstate Commerce Commission, Federal Power Commission, the Federal Communications Commission, do have statutory authority to sue in their own name, would be implementing Federal policies and interference with Federal policies by bringing entirely comparable suits. It is hard to think of any reason why they should be a difference should result on the jurisdictional ground under Section 2283. Now, this does not mean that a host of new cases, a large volume of additional litigation would be opening up as a result recognition of the scope of the governmental exception. It seems to us that it was recognized a while ago in Bowles against Willingham for that matter. There had been establishment of it under the office of Price Administration Legislation. It is true that the opinion in that case pointed to statutory authority for the administrator to seek injunction, that statutory authority did not specify that injunctions could be sought against the enforcement of State Court judgment and it is really not significantly different from the statutory authority of any other agencies seek injunction. We have inquired of a number of agencies to determine what their experience has been in this field and most of them had replied that they cannot recall an instance in which they had to seek relief against a State Court judgment where they could not at least attempt to justify that relief or within the rationale of the express exception in Section 2283, but several of them did mention to us that such cases could arise that would very important to the administration of their statute and for that reason they are interested in the outcome of this litigation. I will cite just one instance. The Federal Trade Commission and the Equal Employment Opportunity Commission both pointed out to us that under certain statutory provisions they have an obligation to conduct an investigation from secret and to keep the matters that they investigate confidential and they would be concerned about possible disclosure of some these matters in State Court proceeding and would be rather hard pressed to justify relief under the express exception to 2283 in such a circumstance, it has not yet arisen, but it could arise. The Equal Employment Opportunity Commission points out its particular concern because of the statutory policy behind the confidentiality of their investigation, a policy of protecting complainants and witnesses against reprieved or intimidation and the like. So there are some important policies involved here. Further more in light -- Byron R. White: Mr. Wallace could I just ask you in dealing with the Norris-LaGuardia Act and the National Labor Relations Board, does the board's right to get an injunction despite the Norris-LaGuardia Act rested on specific statutory exemption? Lawrence G. Wallace: I now would know a specific statutory exemption. I did not think the terms of the Norris-LaGuardia Act complied with the Board. Byron R. White: Well, I notice at page 41 of your brief, a statutory provision upon the filing of any such petition etcetera, the District Court shall have jurisdiction and grant injunctive relief, notwithstanding any other provisional of law. That is not express? Lawrence G. Wallace: Well, that is an important thing in Court Order and this is not a proceeding brought under that provision. Of course that is in it. Byron R. White: (Voice Overlap) important, are they not comparable provisions, I do not remember, but I thought wherever the board has been given authority to seek injunctive relief is usually been added something like this, “notwithstanding any other provision of law.” Now, if your position is correct it would have not been necessary at all to provide for that exemption from Norris-LaGuardia because Norris-LaGuardia does not party the United States at all? Lawrence G. Wallace: Well, that is an issue that I do not think need be reached in this case. Byron R. White: Well, it might have a lot of to do with whether Congress intended as the Board to exercise the authority of the United States. It is outside these specific areas where the Board can get injunction, if outside that area Norris-LaGuardia would bar the injunction of the Board, then the Board is not the United States? Lawrence G. Wallace: I think there is initially a serious question whether Norris-LaGuardia would have any applicability to an injunction against just an enforcement of the State Court judgment rather than an injunction that goes to the conduct of the -- Byron R. White: About the labor disputes? Lawrence G. Wallace: Well, it is. But it is a very limited scope of an injunction. It does not seem to me to be the kind of interference with the settlement of labor disputes that Norris-LaGuardia would concern with. Indeed this kind of injunction seems to have the policies of Norris-LaGuardia by presenting State Court interference with the equal settlement of labor dispute. Well, I think one other statutory position might be pointed out as an example of the immateriality even to Congress of this distinction and that is a provision of the interstate commerce act which is a particular provision and is entitled 49 of the Code, Section 16, sub Section 12, entitled proceedings to enforce orders other than for payment of money and there the statute provides if any carrier fails or neglects to obey any order of the Commission other than for the payment of money while the order is in effect, the Interstate Commerce Commission or any party entered thereby or the United States by its Attorney General may apply to any District Court of the United States for the enforcement of the order, a District Court of competent jurisdiction and so that is just an example of congress’ attitude its policies and its statute are to be enforced by whoever has the litigating authority, in that case in the alternative by the United States or by the Interstate Commerce Commission. It is difficult for us to see the materiality of this distinction. Now, in the Labor Relations field the question is of perhaps a greater significance and will or has produced a somewhat larger line of litigation already. The Board informs me that it gets about a dozen complaints a year, requests that it files suits of this type. It has on the average been filing less than one per year and partly of course because of doubts about of the outcome of this issue, but also because it selects these cases carefully and plans to continue to do so, if it is successful in this litigation which seems to us to point out the significant difference between suits brought by public authority to vindicate the important Federal policies reflected in the National Labor Relations Act and other statutes and private litigation which has been bared under 2283 and which was really the concern of Congress in enacting 2283 and its predecessors. The difficulties in the enforcement of the policies that the act that result from injunctions of the type issued by the State Court here, we think are manifest. Indeed the District Judge himself spelled them out in a rather regretful paragraph in his opinion in which he said that the decision leads to really non-less result and they have been rehearsed previously in opinions of this Court. Now, the question remains what alternatives would be open to the Board with not able to secure relief in the fashion it is seeking here, at least to have its complaint entertained. Other than leaving the matter to private litigation entirely which means unsatisfactory, it might add responsibilities. There are only two possibilities. One is to seek to intervene or to participate as amicus curiae in the State Court proceeding. Whether it could intervene since no order of the Board is at issue would be highly questionable. If it could not participate as a party, intervener then whether an appeal would be taken would be out of his hand. In addition even if it could participate, it would be subjected to the possible pitfalls of unfamiliar State procedure, the possible limitations of state discovery proceedings and other disadvantages in comparison with the Federal forum where Congress contemplated it would be doing is litigating. The other possible alternative is the suggestion that was raised in the Court’s opinion in Richman Brothers that perhaps the filing of a State Court preceding that interferes with the area preempted by the National Labor Relations Act might itself be an unfair labor practice. The Board, and we have pointed out in our brief, has careful consideration, rejected this position. When a suit is brought in good faith in a State Court to invoke remedies provided for by State Statute and it seems to us that for the Board to hold that good faith suit and such circumstances could be brought only if the risk of being held and committed an unfair labor practice would be a far greater intrusion on the prerogatives of the State and the dignity of State procedures to prevent even the invoking in good faith of State remedies than is the settled interpretation as we understand it, of Section 2283. I would like to reserve the remainder of my time for rebuttal. Warren E. Burger: Very well, Mr. Wallace. Mr. Hirsh. Solomon I. Hirsh: Mr. Chief Justice and may it please the Court. I move that William A. Harding be permitted to argue pro hac vice on behalf of respondent Nash-Finch Co. doing business as Jack & Jill Stores in this case. He is a member of good standing of the Bar of Nebraska, but he has been a member for a less than three years. Warren E. Burger: Your motion is granted. We are prepared to hear Mr. Harding. William A. Harding: Mr. Chief Justice, Your Honors and may it please the Court. This case has been another example of the continual failure of the Labor Board to acknowledge that the Congress meant what it said when it passed the Anti-Injunction Statute and noted that Federal District Court do not have the power, indeed they are prohibited from enjoining the State Court proceedings unless specifically in aide of their own jurisdiction in order to effectuate their own judgments or where specifically provided for by Congress. Of course, this prohibition and these exceptions are found in 28 U.S. Code 2283 and that is the heart and basis of this case. Potter Stewart: Of course, the Court has already said that those were -- do not mean exactly what they say as Leiter Minerals? William A. Harding: Yes, Your Honor, but that was not so much that they do not mean what they say. They had not said enough -- Potter Stewart: They had not said enough. There is another exception in addition to those exemplified at 2283? William A. Harding: Yes, Your Honor and I would like to explore for this Court that United States exception that the Board talks about as well as a few other reasons why we believe this Court should affirm the decisions of the Lower Courts in denying to the Board the relief it requests. But before I do so, I would like to emphasize a few facts, the Board took care not to emphasize and one of it was incorrect. First, the Board incorrectly noted in oral argument that the employees of the Nash-Finch Company were striking in the summer of 1969. This is incorrect and the Board’s complaint does not say. The Board’s complaint, part 6, noted on page 5 of the appendix specifically notes that the union began picketing and as noted in affidavits passed as an appendix to our brief in support of our petition in the State Court clearly point out the pickets were not employees. Therefore, it was understandable that the company would not have easy access to the names or identity of those people and that the State Court therefore required that anyone that was being presumably paid by the union to come and picket with first come to the State Court, and identify themselves and submit to its jurisdiction. So these were not employees. These were presumably paid union personnel that were conducting picketing. Secondly and perhaps most importantly, the picketing in the instant case is acknowledged and judicially has been determined as mass picketing. On the one hand we will have peaceful picketing and on the other end of the spectrum, we have non-peaceful picketing. In between a type of picketing that maybe either or both is a type of picketing that most State Courts attach statutes regarding and which they refer to as mass picketing. In implementing its duty under a State Police power to protect the rights of its citizens and to make the conclusion that they may not be hampered by any type of picketing that would prohibit ingress and egress or lead to violence, most States prohibit, as does the Nebraska Statute, the numbers of pickets that maybe placed and specifically states that they may not prohibit the ingress and egress. The Nebraska Statute has few other factors in it which suffice it to say that the affidavits which we have submitted in the State Court which are set forth in appendix 2 in our brief, indicates that there was substantial blocking of ingress and egress by these non-employee pickets. That there were substantially more than the numbers allowed by the State Statute. There were also some other areas of some threats to both customers of the stores or store employees which suffice to say Your Honors, if the Board comes before this Court or rather piously proclaiming, this is peaceful picketing and it is not. There is a judicial determination that it is mass picketing and there is a little bit difference. Because if it is peaceful picketing only the company acknowledges that there is obviously at least an arguable, at least an arguable conclusion that the picketing is therefore, totally, completely governed by the National Liberations Act and the Board. However, if it is mass picketing there is a very substantial State interest involved under the State Police powers and that is what we have at issue in this case, Your Honors that State Police power versus what the Board would ask this Court do which is to imply to it an exception on the basis of federal preemption. So that it may go into any Federal District Court anywhere in the country and get an injunction of any State implementing this peaceful -- it is police powers as regards mass picketing. Now, we also note in our brief Your Honors that, it is truly we have never had any holding on the merits. There has never been any findings of fact by the Federal District Court. Unfortunately, we were not really in a position to be vitally concerned about this since we already had our judicial determination that it was mass picketing, now that is security issue. The Board was the moving party in the Federal District Court made no effort to place any of those facts before the Court and as noted in oral argument the case was determined on our motion to dismiss and then it was affirmed by the Eighth Circuit. But there are police courts or Police Department, Fire Department records, records of the State Department of Agriculture which we note in our brief that we believe this Court could take judicial notice of which indicate that there were substantially other activities that could properly be used to classify this picketing as violent. There were -- William J. Brennan, Jr.: May I ask Mr. Harding, is any addition there on the issue before us, namely whether there was jurisdiction in the District Court to entertain this complaint? William A. Harding: No, Your Honors. We know that if the District Court was correct, it did not have jurisdiction, it does not make validity -- William J. Brennan, Jr.: But the facts that you are telling us really do not bear on that question of board? William A. Harding: No, Your Honor. But the Board seems to make that view because the Board says that they should have an exception implied for them, notwithstanding the United States exception. Our argument goes on to say we feel that this Court on the basis of federal preemption alone, an argument which was rejected by this Court both in the Richman Brothers’ case and last year at Atlantic Coast Line on the basis of preemption alone it should allow the Board or any other federal agency to enter the District Court. We do not agree with that. We do not believe this Court does. Warren E. Burger: As I understood you conceded two minutes ago Mr. Harding, that if this record showed peaceful picketing, you would be out of the court? William A. Harding: Yes Your Honor, if it was peaceful picketing we would not have gone into state court. Warren E. Burger: So to that extent, the facts are relevant to your argument in that respect, are they not? William A. Harding: Only to the extent, Your Honor that the Board has made this as a basis of its argument before this Court as to why it should have had jurisdiction given to the District Court and in our counter argument to that fact. We are only noting that if this Court should consider this preemption argument of the Board that it should also consider few other things than just peaceful picketing. But we believe the issue could be disposed off by the judicial determination in the State Court that this was mass picketing, not peaceful picketing. Byron R. White: Well, yes, but would you not be making the same 2283 argument here even if there was nothing involved in the State Court except peaceful picketing? That the Federal Court would have no power, under 2283 to enjoin the State Court proceedings? William A. Harding: Perhaps, Your Honor but if there is -- Byron R. White: But perhaps? William A. Harding: If there is only peaceful picketing, I doubt we would be here. Byron R. White: Well, that is not the point? William A. Harding: I realize that that is why I say perhaps. Byron R. White: It so happens that the Court, that the State Court said that even if you limit picketing to two people, you cannot hand out any hand bill. Now, there is a -- just this clear -- an issue in this case that would you say that Federal Court could have -- in this case could have enjoined the State Court from enforcing that particular provision and its injunction despite 2283? William A. Harding: If there is only that issue involved Your Honor? Byron R. White: Yes. William A. Harding: If there is only that issue involved I think the Federal District Court might have felt itself quite bothered by that issue but I think -- I think the -- Byron R. White: I know (Voice Overlap) Federal District Court. I want to know what your position is on the -- William A. Harding: My position is Your Honor should have been litigated in the State Courts. Byron R. White: So 2283 would bar the Federal Court in any position? William A. Harding: Yes sir. Byron R. White: Why? I think that would be -- William A. Harding: I do not believe that that is really properly before this Court or I have -- in further answer to your question I -- Byron R. White: It is not or I do not think it would be before the Court as to whether the -- any, the issue is whether any part of the -- the Federal Court had power to enjoin any part of the State Court injunctions? William A. Harding: Well, the reason I say I do not believe it is properly before this Court is because the Board can adequately get around the limitations of 2283 and it could have and should have proceeded in the State Court and could have (Inaudible) its problems there. There are number of reasons why we believe that this Court should conclude if the Lower Court was correct in what it did, I would like to first draw the Court’s attention to the statutory framework in which Section 2283 appeared to the District Court as is denoted by this Court in previous questions, the Norris-LaGuardia Act indicate that Federal District Courts are not encouraged to grant injunctive relief in labor matters. 29 U.S. Code, Sections 101 and 104 indicate that they should not. In fact Sections 107 and 109 indicate that they should make detailed findings of fact before they would ever enter such scenario granting injunctive relief. But, notwithstanding that fact, 29 U.S. Code, Section 160 usually referred to as Sections 10 (j) and 10 (l) of the act gives to the Labor Board the power to go ahead in certain situations in the Federal District Court and obtain injunctive relief if they feel it is an extraordinary circumstance where they should exercise that power and go in and get that injunction. In addition to that of course, we have 28 U.S. Code 2283 which has been law in some form since 1793 and I submit to the Court, Your Honors that the distinction is somewhat more basic than that even as has been noted in the amicus brief by the National Chamber of Commerce and in our brief that this has been a long standing implementation of the notion in Congress that there should and must be a dual Court system in this country. I direct Your Honors’ attention to the Federalist paper number 46 which we note in our brief where Mr. Madison, wherein he indicates that there is an even deeper division in that because when the people of this country who are the sovereign gave to the new Federal Government its power to do what they allowed it to do, that there was considerable concern over what that Federal Government might do to the State Governments. Mr. Madison notes quite clearly at number 46 that if there is an area where a State Court infringes on an area that the Federal Government thinks is unfriendly to it, did notwithstanding that fact, the States must clearly have the advantage. And reason in that is because the States were giving the power to the Federal Government and that they must maintain that advantage. And so, we would say that Section 2283 came before the District Court with a very, very basic distinction between the Federal and the State Court judicial systems. Based upon that, the State action in giving the company relief and redress under the State mass picketing statute is certainly not before this Court on the grounds that that is not within their power. For as noted in numerous decisions before this Court as set out in our brief on page 13, this Court has many times noted that regulation of mass picketing by State Courts and by State Statute is clearly and completely within the province of the State Police powers. It was upon this statutory framework then that this matter reached the Federal District Court. At that point the Board raised its two arguments that it, number one should be considered the United States for the purposes of this action and get around Section 2283 and at number 2 it could be considered to get around Section 2283 simply because it had been established by the Congress. I suppose they base it on a very large federal preemption argument on this issue. Warren E. Burger: Which of our cases emphasize mass picketing as you seem to have it just emphasized that? William A. Harding: Well, Your Honor a number of cases, Wisconsin -- the Wisconsin cases, the Allen Bradley case has talked about that. Warren E. Burger: What about the Atlantic Coast Line? Did Atlantic Coast Line deal with mass picketing? William A. Harding: I am not aware that it did Your Honor. This Court noted in the City of El Paso case in 1965 about the broad powers of the State Police powers that the State should be granted wide discretion in determining how to exercise those State Police powers and Mr. Justice Reed in Ritter’s Café in 1942 noted specifically that there was no serious question that States had the power to place a good deal of regulation on mass picketing to regulate the numbers and to regulate the blocking of ingress, egress, etcetera. The basic argument that the Labor Board brings before this Court that it should be considered the United States seems to have been decided by this Court’s decision in the Nathanson case 344 U.S., wherein it was noted that a debt and in that situation a back pay proceeding that was owed to the Labor Board was not entitled to preferences of debt owed to the United States would be. Nevertheless, this case is still before the Court because the Board maintains that it should be considered the United States because there is no reason to consider that it would not be. But Your Honors of course, it is recognized that the Federal Government is a government of limited of powers. It is also a government of specific powers. The Labor Board was established not to be the United States for all intents and purposes but it was established to be a specific agency of the Government to enforce a specific statute under specific policy directives of the Congress. I do not believe that Congress intended to make the Labor Board into what might be referred to as a Frankenstein’s monster and that it could go across the entire country doing what it would like and considering that it had the powers, immunities and privileges of the United States. Indeed, this Court has noted previously in cases very similar that agencies of the United States Government as noted in the Menihan case which we note in our brief on page 20, page 23, that this Court has previously concluded that agencies of the United States are not to be considered to have and to posses the powers, privileges and immunities of the United States unless that Congress clearly grants that power to them. And Your Honors the Board points no specific statutory authority for their claim that they maybe considered the United States for the purposes of this action. Indeed, all they want to do is circumvent another specific statutory provision which is 2283. Yet they point to know specific statute granting them that power. They do point to what they refer to as implied exceptions under form of Section 265. In our brief, as we noted, as this Court noted in the Richman Brothers’ case, there is no need really to consider those implied exceptions because it is clear that the Congress did not intent for any implied exceptions to live beyond the enactment of Section 2283. But for argument’s sake, it should be noted that the cases that the Board relies upon are not really cases wherein our judicially implied exceptions because there was, in fact, conflicting statutory authority. In four of the cases the Board relies upon, that authority was granted by Section 205 (c) of the Emergency Price Control Act. The most noted of those cases was Bowles v. Willingham. In fact, it is notable that approximately 10 days ago, the Government went down the street to argue in the District of Columbia Circuit and told Judge Leventhal that the Bowles v. Willingham case specifically gave the President the power to do what he is doing now in the Wage and Price Control freeze because it was an emergency statute and they used Bowles as the basis for their case. Yet, they come in to this Court today and argue that the Bowles case is just a clear indication of the fact that any government agency can be given a power of the United States under rather broad argument of federal preemption and make no mention of the fact that that was an Emergency Price Control Act. That was not a regulation statute as we would note in the general sense of the word. However, two additional cases cited by the Board in its brief specifically gave jurisdiction to Federal District Courts under Section 79 (k) of the Public Utilities Holding Act. The final case cited by the Board as a presumed exception under former Section 265 was given specific authority, gave specific jurisdiction of the District Court under the Agricultural Marketing Act Section 6. So the Board comes before this Court not with implied judicial exceptions but with conflicting statutory authority under prior Section 265. And that Your Honors as was noted in the revisers' note of Section 2283, was why the Congress passed Section 2283. They had to get their House in order and note specifically when jurisdiction was granted to a Federal District Court and they took care of that by placing the first exception under Section 2283 the words “except where specifically authorized by Congress” and the Board is specifically authorized by Congress under Section 10 (j) and 10 (l), to seek and to obtain injunctive relief. But those Sections did not apply to this case as the Board acknowledges. We submit Your Honors that had the Congress intended to give the Board the power to get injunctive relief in other situations, it would have said so. Every place where it has given the Board power, it has specified that power, especially Your Honors in the area of injunctive relief which might be distinguished from rather more administrative powers which the Board notes in its brief. Of course not all of the powers to implement that statute were given to the Board and the statute of course not as far as administrative matters to be concerned. But when it comes to an injunctive power, those powers have been specific in their implementation by the Congress and we would submit that since 10 (j) and 10 (l) do not apply to this case, the Board has no statutory power to attempt to get the injunction that it seeks. Now in addition, in oral argument, the Board notes or the respondent would rely upon through another indication of why the Board should not be before this Court claiming to be the United States. 49 U.S. Code, Section 16 dealing with the powers of the ICC as the Board noted specifically says that to implement those statutes either the ICC may do so any aggrieved party or the United States. It is fairly obvious that the Congress need not have said the ICC or the United States if there was no difference. But the regulatory agencies of the Government are not parts of the Executive Branch of the Government. It is specifically noted in even the Government Organization Manual put out by the Government printing office that there is a distinction between branches of the Executive Government and regulatory agencies. In fact, there are 51 regulatory agencies, including the Labor Board lifted as administrative agencies. Your Honors, this distinction was drawn by this Court sometime ago in the case of Montgomery’s Executor wherein a Federal Trade Commission case involved the power of the President to remove a member of that commission. Now, this Court concluded that since the Federal Trade Commission was not an Executive Branch of the Government that therefore the President did not have that power and in so doing clearly and carefully drew the distinction between Executive Branches of the Government. Those branches that do not have the power to sue in their own name but must sue as the United States and are indeed to be considered the United States as opposed to administrative agencies, for example, the Federal Trade Commission and as was noted in oral argument by the Board, FAA in a case before the Second Circuit has sued under the name of the United States, but it is in fact an Executive Branch of the Government and that is a significant difference that is not found in this case because the Labor Board does sue in its own name but it is not the United States. It does not have all the privileges, powers, immunities of the United States and that it therefore may not come under this Court’s decision in Leiter Minerals to remove itself from the prohibition of Section 2283. An additional argument that the Board makes is that not withstanding any argument that it might be considered the United States, it should be allowed to proceed in this case simply because it was established by the Congress. It has preempted the area of labor relation and that therefore it should be able to proceed against any State Court that gets into the area of labor relations in any degree I would imagine. That argument was advanced also in the Richman Brothers’ case. Justice Frankfurter in that case noted that that argument must be rejected simply because federal statutes may have preempted an area, Section 2283 must be strictly construed. And that unless there is a specific act of Congress, unless it is in aid of that Court’s jurisdiction or to effectuate the judgments of that Court, no Federal District Court may overlook the limitations of Section 2283. Thurgood Marshall: Do you consider it limited solely to executive? William A. Harding: No, Your Honor. I would imagine that if the Congress would request the Attorney General to proceed for it, they might do so in certain circumstances, I would imagine all branches of government could. Thurgood Marshall: Well, how do you account for the fact that the Solicitor General is here representing? William A. Harding: Well, Your Honor that is an internal procedure that the government follows, that I do not have any control over. I know that there are several people at the Labor Board that would like to be here today but the Solicitor is not available. The fact is Your Honor that we do not discount the fact that they are an agency to the Federal Government that they have work of a federal nature to do. What we do say though is that that work of a federal nature to do, has been specifically granted to them in at least as regards the injunctive power, a power that the Congress does not wish exercised by Federal District Courts in labor matters generally. But the Congress has been careful to only grant limited power to the Labor Board to proceed for injunctive relief and that that power has not been given to the Board to circumvent the limitations of 2283. From a practical standpoint, the argument of preemption by the Labor Board really attempts to get the cart before the horse because what it tries to do is to get the merits of the case in before jurisdiction is initially granted. And this of course was why the District Court denied the jurisdiction of claims of the Board. In fact, as we noted in our brief, later Mr. Justice Cardozo when he was deciding cases for the State of New York noted that rights exist and that they maybe granted after jurisdiction has been found, but that rights in and out of themselves may not confer jurisdiction. This is what the Board would seek to have this Court to do. There are additional practical reasons to conclude that the Labor Board should not properly be before this Court seeking to circumvent limitations of Section 2283 to go beyond the system, the system of dual courts that has long been established and that is because the Labor Board does not even exercise the power that it is granted under Sections 10 (j) and 10 (l) as noted in our brief. In over 75% of what it acknowledges to be meritorious cases it does not seek to obtain injunctive relief. It is rather anomalous then that the Board comes before this Court and urges this Court to imply into a judicially legislative power that the Congress has not granted to it. For all of these reasons then, we urge this Court to again strictly construe Section 2283 to conclude that the Board may not on a basis of federal preemption alone circumvent the limitations of Section 2283 into referring the Lower Court. Warren E. Burger: Thank you Mr. Harding. Mr. Wallace you have two minutes left. Lawrence G. Wallace: Thank you, Mr. Chief Justice. I would just like to say a word or two about some of the cases relied on by the respondent figuring Nathanson against the National Labor Relations Board in which this Court in construing the Bankruptcy Act decided that an award of back pay owing to the Labor Board while it was debt owing to the Labor Board was functionally in the category of wages owing to work rather than a sum of money owing to the Treasury of the United States and should accordingly be awarded the priority of wages rather than debts owing to the United States for purposes of applying the Bankruptcy Act. It is hard for me to think that any different result would have been reached in that case had the debt technically been owing to the United States but to be used for the same purpose. The reasoning of the Court was that this was not a payment to go into the Federal Treasury. Reconstruction of Finance Corporation against Menihan was a case which the Court held that the Corporation distinguished from Federal agency which had statutory authority to sue and be sued like other corporations should not come within the statutory provision exempting the United States from interest payment in litigation, but the ordinary rules of litigation should apply. The National Labor Relations Board and other Federal agencies were for years operating under the Federal provision exempting the United States from interest payments. So we are not paying interest in litigation and it is only since the amendment of that provision with respect to all litigation by the United States that practices change for the agency in that respect. Now, if there is any further question about the Norris-LaGuardia Act in this matter I am informed that the Board did brief the question of why the Norris-LaGuardia Act should not apply in this kind of case. It would either in the Capital Service case or in the Richman Brothers’ case, we do not recall which brief it was but it - William J. Brennan, Jr.: Well, Mr. Wallace, I do not know that I have come upon all of them but there appears to be at least three sections. One at least in the original 1935 Act and two in the 1947 Amendment, where Congress has conferred upon the Board authority to seek injunctive relief where it has added something, notwithstanding any other provision of law or I think in the 1935 Act, notwithstanding the provisions of 101 to 115. Now, do you think that there is some significance in respect to whether Congress thought the Board might seek injunctive relief and the fact that the Congress at least in those three instances expressly said notwithstanding any argument -- Lawrence G. Wallace: Congress took that precaution and those provisions all relate to the Boards authority to seek relief (Voice Overlap) that applies directly to -- William J. Brennan, Jr.: What, how (Voice Overlap) to the question before us? Lawrence G. Wallace: Well, I think the difference in this case and those provisions is that there the relief, they are directly on the rights between the parties. William J. Brennan, Jr.: Well, I do not suggest that is not so, but might there not be an inference from the fact that at least three times Congress did this? That Congress grew up and accepts as they did it that the Board was not to be considered that is having authority to seek injunctive relief in Federal Court? Lawrence G. Wallace: Well, it is hard to know what is behind the precautionary language of this kind. I do not know. (Voice Overlap) William J. Brennan, Jr.: (Voice Overlap) Lawrence G. Wallace: Well, there is no specific reference in Norris-LaGuardia Act. Byron R. White: It might be, it might be that there is a specific reference in Norris-LaGuardia Act in the 1935 Act, specifically named. William J. Brennan, Jr.: Of course the answer there might be that Leiter Minerals was not decided until 1957 and even United Mine Workers case was, 330 U.S. that was decided after 1935 too. So you might -- that might explain the way the 1935 reference that I do not. It seems to me as it; it is more difficult to explain the way the 1947 reference. Lawrence G. Wallace: Well, or course. The concern of the Norris-LaGuardia Act was with the conjunction (Voice Overlaps) William J. Brennan, Jr.: Well, these 1947 references are not Norris-LaGuardia, at least they say notwithstanding any other provision of law. Byron R. White: And if the United States is not covered by the Norris-LaGuardia Act, and the agency is entitled the exemption of the United States, that would not been in the need for this sort of provision. Lawrence G. Wallace: Well, we need not argue that the United States is not at all subject to the Norris-LaGuardia Act. Byron R. White: Well, it has been since so held. Lawrence G. Wallace: Yes. But -- William J. Brennan, Jr.: But it was the position of (Inaudible) Lawrence G. Wallace: Yes. But if the Board is not at all subject to it is what I should say because the purpose of the Norris-LaGuardia Act was to prevent an injunction that would interfere with the Board's activity and that is exactly what the Board is trying to prevent in this case, interference with the Board’s function under the Act. Byron R. White: But it is the kind of injunction that is not specifically authorized again, under the terms and privilege of the Act. It has to be implied this time. Lawrence G. Wallace: It -- well, yes, about Section 1337 of Title XXVIII. Thank you. Warren E. Burger: Thank you Mr. Wallace. Thank you, Mr. Harding. The case is submitted.

David Axelrod: -- understanding of Mr. Wines' position in part of the oral argument -- I think Mr. Wines' position on the part of the State was that the statute here burdened interstate commerce but he did not concede, as I understand it that it was an undue burden on interstate commerce. I apologize. I perhaps misunderstood him. And part of my argument wasn't predicated on that proposition but I do want to set the record the straight. Yesterday, the question was asked as to whether or not the Interstate Commerce Commission had promulgated certain safety rules and regulations with respect to the kind of equipment that should be upon motor vehicles operating in interstate commerce. And I'd like to direct your attention, if I may please, to the parts and accessories provision of the safety rules and regulations of the Interstate Commerce Commission. And the specific question was the extent or the type of equipment which was regulated pursuant to these safety rules and regulations. The safety rules and regulations of the Interstate Commerce Commission which governed the movement of motor vehicles in interstate commerce cover generally the category of lighting devices, reflectors and electrical equipment and there follow a detailed explanation of the kind of electrical equipment and lighting devices which are required. There also follows a description of brakes with respect to their adequacy and detailed description with respect to that kind of regulation is also set forth. There follows also a discussion and a requirement concerning the windows, the glazing and the window construction of the vehicles. There follows a requirement with respect to the kind of fuel systems which are necessary. There follows a requirement with respect to coupling devices and towing methods. And then there is a subdivision which concerned itself with miscellaneous parts and accessories. And among them are these, tires, heaters, windshield wiper, defrosting device, mirrors, horns, speedometer, exhaust system, protection against shifting cargo, flags and so forth. Now, the Commission in connection with -- Charles E. Whittaker: Where can you find this? David Axelrod: This is part 193, Justice Whittaker, of the Interstate Commerce Commission, Motor Carrier Safety Rules and Regulations promulgated pursuant to Section 204 of the Interstate Commerce Act. And that -- William J. Brennan, Jr.: We don't have that referred to in the brief, do we? David Axelrod: I do not and -- William J. Brennan, Jr.: Do you mind -- David Axelrod: I beg your pardon. William J. Brennan, Jr.: Do you mind giving it to me again. I wasn't -- David Axelrod: Yes. It is the Motor Carrier Safety Rules and Regulations pursuant to Section 204 of the Interstate Commerce Act. It is best located, if I may suggest, in 54 M. C. C. 337 which is the Interstate Commerce Commission investigation report which I referred to yesterday wherein the question of the mudflaps was taken under consideration by the Commission in 1952. And wherein that proceeding, the Commission determined that the question would be eliminated for the purpose of prescribing any uniformity with respect to mudflaps. And the proceeding was discontinued on that basis. In other words, the Commission there had before it, if it so desired, the opportunity to prescribe uniformly with respect to the mudflap requirement but decided not to do so. Hugo L. Black: Did -- David Axelrod: There is no -- Hugo L. Black: Did it say why? David Axelrod: It did not. It did not, Justice Black, but -- Hugo L. Black: Was that an order of any kind? David Axelrod: It was an order. It was -- what -- what is known as an investigation proceeding. The safety rules and regulations from time to time are amended and changed as developments follow. This proceeding in 1952 was a proposal which had for its purpose the possibility of revising the safety rules and regulations. It was an interim step to determine whether or not in 1952, there should be any further revisions of the safety rules and regulations. Felix Frankfurter: Was there before the Commission a proposal to it, to provide for these mudflaps? David Axelrod: The -- the report of the Commission is not clear with respect to it but undoubtedly, the subject of mudflaps was before the Commission because it determined at that time, in 1952, that there was no need to cover the subject matter. Charles E. Whittaker: It did specifically meant into mudflaps? David Axelrod: Yes. I -- may I quote, Mr. Justice Whittaker. This is the report of the Commission. “The proposed rule on wheel flaps has been eliminated after a study of further evidence which has been submitted.” Felix Frankfurter: Well, I suppose you can tell by the appearances before the Commission. Were they noted in these reports? David Axelrod: Yes they are, Mr. Justice Frankfurter. Felix Frankfurter: You could tell probably with your experience from the appearances where the proponent and opponent of such a proposal in fact submitted matters to the Commission? David Axelrod: There was such submission. However, the information is sketchy. Now, in connection with the proceeding -- Hugo L. Black: You said proposed rule. Is the proposed rule printed? David Axelrod: It is -- it was not printed with respect to the proceeding itself. Hugo L. Black: Does it state -- well, is it available so that we could see what the proposal was? Or does this report state what it was? David Axelrod: To my recollection, it did not, Mr. Justice Black. Felix Frankfurter: Well, are you merely saying that the subject matter was canvassed before the Commission? David Axelrod: Yes. I am saying that the subject matter was canvassed and the report doesn't give a clear indication of the exact mudflap which was under consideration pro and con. But I'm saying that the subject matter was canvassed. And may I point out further that in the same decision of the Commission, the same investigation proceedings, the Commission went on to further indicate that, and I quote from it please if I may, that it is not the purpose either to abrogate the present state or local laws or to preempt the safety field to the exclusion of future state or local laws. We believe that states and subdivisions should be allowed to enforce their laws and regulations relating to safety to the extent that compliance therewith by the person subject thereto would not preclude such persons from fully complying with the regulations prescribed here. In other words, the Commission went on to say that although it was prescribing rules and regulations with respect to parts and accessories, it did not wish to abrogate, if it could or I doubt that it could, but it did not wish to abrogate the right of the rule -- of the states to require safety rules not inconsistent with its own federal rule, with its own ICC rule. Now then -- Felix Frankfurter: But is it on ICC rule? David Axelrod: Not on this subject matter. Felix Frankfurter: Well, then as I heard what you read, the Commission said explicitly that by their action, they did not need to supplant local rules? David Axelrod: They say that in effect but they say it on a modified basis. And they say it to the extent that they do not wish to supplant local rules not inconsistent with their rules. They take the position that where they have covered the subject matter, they have preempted the feel. Felix Frankfurter: Well, have they -- but -- but they refused to deal with this subject matter. As I get your recital, the subject matter is cancelled. The Commission kept its hands off and explicitly said local rules shall continue. David Axelrod: They refuse to deal with it, Mr. Justice Frankfurter. I think on the theory that there was no need to deal with it. William J. Brennan, Jr.: Well, what you mean by that that there was no safety problem? David Axelrod: That is correct. William J. Brennan, Jr.: Well, I -- as you read that though, I rather have the im -- what was an implication in it that -- David Axelrod: Well, the -- William J. Brennan, Jr.: -- (Voice Overlap) safety hazards but they believe its regulations in the States. David Axelrod: The -- the question was whether or not there was a need for a safety rule with respect to the subject matter, having in mind what I've indicated earlier in my argument that many of the States did not have any such rule whatsoever. The Commission therefore, as I see it, took the position that there was no need for a rule by it, in connection with the subject matter at this time. William J. Brennan, Jr.: -- (Voice Overlap) we're to infer from that that there was no real safety hazard calling so far as regulation (Voice Overlap) -- David Axelrod: That is -- that is correct. And we're -- I'm saying in this case -- Felix Frankfurter: Why would -- why will they explicitly allow this existing laws if ever there were laws to prevail? David Axelrod: Because apparent -- Felix Frankfurter: As I read it -- as I interpret what you read, they refused to make a uniform rule for the nation. David Axelrod: Because -- Felix Frankfurter: There are in existence local rules and they said for the present, we let those local rules prevail. David Axelrod: That is correct. And I say that because apparently, the local rules existing then and the contour statute was not then in effect, were sufficient. Felix Frankfurter: -- (Voice Overlap) was not in effect? David Axelrod: No, it was not. The contour statute was passed in 1955 and amended in 1957. And we're challenging the 1957 Act. The ICC report was in 1952. At that time, the States have a uniform rule with respect to the kind of a mudflap, it was the straight mudflap. And all States authorized the use of the straight mudflaps. So that at that time, the Commission knowing the rules in existence in the various States, took the position that there was no need to cover the subject matter. Felix Frankfurter: There was no conflict except -- David Axelrod: There was -- Felix Frankfurter: -- the conflict between the States that have something all uniformed, those who have it and the States that have nothing. David Axelrod: There was no conflict, Mr. Justice Frankfurter, none whatsoever. Felix Frankfurter: Except -- except between the States -- David Axelrod: Yes. Felix Frankfurter: -- that had a requirement and the States that (Inaudible) David Axelrod: That is correct. Charles E. Whittaker: Mr. Axelrod, I do not understand. Maybe I'm (Inaudible) David Axelrod: No, I do not, Mr. Justice Whittaker. I say this that we're not concerned here with any question of preemption of the field. We take no position that because the ICC had the power but didn't exercise it, that therefore, the State cannot exercise a safety rule. We don't -- we do not take the position that there is a question of preemption of a field here. Our entire position is that this statute is an undue and unreasonable burden on interstate commerce. And as we see it, that is the sole issue in this case. We're not arguing preemption. Charles E. Whittaker: May I ask you (Inaudible) David Axelrod: It would be -- yes, it would be a much lesser -- we would say that it was not a violation because the State or Arkansas in its rules and regulations, promulgated the kind of a rule which was uniform to the 25 other States which had a similar rule. In other words, Arkansas, its requirement was for a straight mudflap. This was the same requirement which would allow a vehicle licensed and equipped in Arkansas to be legal in every other State but the State of Illinois under the contour mudflap statute. Charles E. Whittaker: Other States did not have any possible requirements as to the character of the mudflap. David Axelrod: That is correct. Other States did -- Charles E. Whittaker: Arkansas (Inaudible) David Axelrod: Arkansas did make such, yes. Charles E. Whittaker: And so as Illinois. David Axelrod: And so did Illinois. But -- Charles E. Whittaker: (Voice Overlap) -- David Axelrod: -- but Arkansas followed suit after Illinois. Illinois started the ball by its 57th Amendment. Arkansas followed afterward presumably on the theory that if Illinois was going to molest Arkansas vehicles, Arkansas would do the same to Illinois vehicles. And so, it began to develop into a sort of a -- of a feud between Arkansas and Illinois, Illinois being the proponent. Charles E. Whittaker: One thing more. You made (Inaudible) David Axelrod: Yes. Charles E. Whittaker: Must be welded onto the vehicle. David Axelrod: The -- Charles E. Whittaker: And that's -- even the vehicle was (Inaudible) three-judge court. David Axelrod: Yes. Charles E. Whittaker: Is it really necessary that an Illinois statute require it to be welded? Can it not be folded or some other -- David Axelrod: In order -- well, the statute doesn't say how they should be put on but the testimony in the record show that this kind of a flap can only be put on either on the basis of it being welded or if it would be bolted, it would have to be bolted on the basis of having somebody go to the inside of the vehicle in order to put the bolt on the vehicle for the purpose of affixing the flap. And so either way whether it's welded or bolted, the point is not whether they could be put on at the beginning. The point is whether or not the vehicle could be stopped at the state line of Illinois. And at that point, because of the owner requirement, could somebody put on a mudflap as a contoured kind at -- at the state line? And the point we argued and showed was that this was impossible and the three-judge court so found that it couldn't be done, it was impracticable, and we pointed out that it would be unsafe and -- unsafe and contrary to the rules because nobody could enter a trailer that was carrying explosives for the purpose of either opening the trailer and these trailers move under seal. They move close. They move pursuant to Government orders. And nobody could go into the inside of the trailer either to bolt or to weld this kind of a flap onto it. Charles E. Whittaker: Is there any case by this Court (Inaudible) a state statute in order to the use of the state highways? David Axelrod: Mr. Justice Whittaker, this isn't a case relating to the use of the state highway. This is a case which relates to the right of a State to provide only a safety accessory. There is a vital distinction as we see it between the use of a state highway and an accessory to be placed upon a vehicle which uses the state highway. And that distinction is pointed out in Maurer versus -- in the Maurer case, Maurer v. Hamilton where the -- this Court pointed out the distinction between the right of the State to legislate with respect to size and width and weight. That means the right to use the state highway. And that right is predicated upon the reservation to the State in the Interstate Commerce Act in Section 225 specifically of a delegated and reserved right to the State to prescribe the weight, height and road condition. I'm trying to point out the distinction as I see it in connection with your question. Hugo L. Black: Would you mind -- I may -- I guess it's too much but mudflaps has been used great many times. David Axelrod: Yes. Hugo L. Black: I've learned that it has to be welded. Could you describe it to me? David Axelrod: Yes. Hugo L. Black: What does it made off? What -- David Axelrod: Yes. Hugo L. Black: -- material? David Axelrod: The Exhibits 1 and 3 in this record contain pictures of the contour mudflap and the straight mudflap. I'm sorry, but I presume those -- those exhibits -- they're pictorial exhibits, I beg your pardon. They may not be in front of you. But the contour mudflap is made of either a metal or a flexible material which is designed to contour the tire. It in effect shrouds the tire. Whereas, the straight mudflap is a mudflap which is affixed at the end of the trailer and is further removed from the tire wheel. So that perhaps -- if you seen some vehicles operating on a highway, you probably noticed that of the back of the trailer, there are mudflaps hanging down almost to the roadway. Felix Frankfurter: What are they made of? David Axelrod: These are made of rubber material and they're flexible. And -- we point it out in -- in this connection.I think it might be interesting. In this record, the indication shows, the evidence is clear that these contour flaps, because they are required by the statute, the contours of the tire are so close to it that the result is a very, very great brake fade characteristic. In other words, it suffocates the heat. It doesn't allow the heat to dissipate. And we've shown in this record here where the result of the contour is to create a danger with respect to the efficiency of brake. And we have had engineers testify in this case. And the record so show that there result a brake fade. As a matter of fact -- William J. Brennan, Jr.: (Inaudible) David Axelrod: I beg your pardon. William J. Brennan, Jr.: The patent of the device is contour -- David Axelrod: That question is not on the record. My answer is yes to your question, Mr, Justice Brennan. William J. Brennan, Jr.: -- (Voice Overlap) just some particular manufacturer who's selling it? David Axelrod: The answer is yes though that is not in the record. William J. Brennan, Jr.: -- (Voice Overlap) Illinois manufacturers? David Axelrod: I beg your pardon. William J. Brennan, Jr.: Illinois manufacturers? David Axelrod: The witnesses who testified for the State of Illinois were the manufacturers and one was based in Indiana. One was based in, I think, Illinois but those where the people who testified in support of the case for the State in addition to this -- on the other testimony. The State put in reference of the fact that it was a wet weather State. I indicated that yesterday. They did it by simply showing a chart of the fact that so many days during the year in Illinois, it would rain or there would be snow. That plus the fact that somebody took the position, the manufacturer, that if this could be put on and not too long a period of time. That's what the extent characteristically of the kind of evidence which we have in this proceeding. Tom C. Clark: (Inaudible) David Axelrod: The -- the straight? Tom C. Clark: The straight guard. David Axelrod: The straight is not. And many -- many manufacturers are making the straight guard. William J. Brennan, Jr.: Is this -- is this developed as the ICC indicated on the interest in going back into this investigation of it? David Axelrod: We do not know. The last pronouncement was in 1952. It may or may not be that they were taken under consideration. But, we -- I would like to say this in response to your question. I would say that the State -- the Commission would not be interested for the reason that our record very carefully describes the dangers and the unsafe characteristics of the contour mudflap. We have safety engineers who said that they would not voluntarily put this kind of equipment on their vehicles unless they were forced to. And they pointed out that this was a thing which was dangerous, not just safe. In other words, they also pointed out simultaneously that wherever they could find anything else that was safe for their vehicles, and they were very proud of their safety records, they would put it on without respect to the question of cost.But here, they said, "Unless we are required to. We will not put them on.” Felix Frankfurter: May I ask, Mr. Axelrod, was that under the power to do a tribute to the Commission, it could outlaw this contour device if it thought it would be a hazard to safety as you claim it is instead of being a protection against hazard. But they outlaw it by saying we find that this uniform of this mudflap, it's all right if we find this as -- not only not all right but also creates a conflict and therefore we -- in the interest of uniformity practically adopt or allow instead of making a rule of our own or a prescription of our own, we allow any State that wants to have this flap uniformity but not anything else. Could they do that in your view? David Axelrod: I would doubt of the right of the Commission to make a positive affirmation of that sort. We could be more in the nature of a court decree. Felix Frankfurter: Well they could -- they could -- I inferred from what you said. They could themselves provide for the flap -- for the flaps, couldn't they? David Axelrod: Yes I -- Felix Frankfurter: When they say -- David Axelrod: Yes they could. Felix Frankfurter: -- we provide for those by any State that wants to have them. I just think if they have power to prescribe it for 40 -- for 50 States, they could prescribe it -- leave it to the relation of the State. David Axelrod: I think they would -- if they -- if they did it in the fashion that you indicate, they would be usurping the power of this Court or the power of a federal court under interstate commerce. I think that their power is one of a right to do it. But I don't think that as a corollary thereto, they would have the right to say that a specific kind was unsafe because, then we would be running to the question of whether or not the ICC's power could supersede the right of a state legislature. And I doubt whether the Commission would think that it had the power to say to a state legislature, “that which you have prescribed is unsafe.” I think that -- Felix Frankfurter: But -- but they've actually done that from the point of view of your argument. If they have allowed by (Inaudible) States to prescribe in lieu of their prescription, they may take account of different weather conditions for all I know, I'm ignorant about it, in a different State. Some States may not need this at all States -- dry States. David Axelrod: That is correct. You mean the wet -- you mean the dry weather States? Felix Frankfurter: Why would it be? It also comes to that. David Axelrod: Well, I don't think that they have the right to go that far. I think -- I don't think it follows as a necessary corollary. Earl Warren: Well, what is the power if under statute -- the statute prescribes that the States may have safety devices not inconsistent with those of the -- David Axelrod: Federal government. Earl Warren: Federal? Of -- David Axelrod: With those -- that is correct. Earl Warren: -- the Commission. Now, if they -- if the States can't go beyond their regulations, why do you say it would -- it would be a usurpation of power for them to say what could and what could not be done by way of safety regulations? David Axelrod: Well, I think, at that point, I think they would then be usurping of the legislative power of the State at that point. I don't think that their power -- their power would exceed -- would get to that point. Earl Warren: Well, we generally thought it would be usurping the legislative power of the State for this Court to determine what was legislative permissible in -- in such fields, haven't we? David Axelrod: No, Mr. Justice Warren. This Court has held that the power of a State with respect to safety is one that must be -- that must face the constitutional hurdle of undue burden on interstate commerce. This Court has held repeatedly that the reserve power of a State can be invalidated by the Commerce Clause, that the Clause is a bulwark of protection against the attempt on the part of the State to legislate with respect to burdening interstate commerce. Earl Warren: Well, that true but -- David Axelrod: And -- Earl Warren: -- your answer to Mr. Justice Whittaker was that it never had interfered with the State in this field. David Axelrod: That is correct but because of the fact that there was nothing at the time when it did not do that that had any question of conflict. In other words, in 1952, when the Commission spoke on the subject, there was no question. There was no conflict of questions. We're talking here in terms of a subject matter that requires uniformity if there is to be action. But if there isn't uniformity, then absent to any federal action. We take the position that the Commerce Clause stand. Felix Frankfurter: Would that really be your ultimate position -- David Axelrod: That it -- Felix Frankfurter: -- not -- not that the Illinois provision is in conflict with anything that the ICC has done but that neither the ICC nor the Illinois legislature can authorize what may be found to be an undue burden on commerce. That's really your case. David Axelrod: Our position is that the Illinois legislature cannot, not that the ICC could not. Our position is that beyond our legislature could not authorize a safety appliance which would unduly burden interstate commerce. Felix Frankfurter: You have said that this law insofar as it was restricted to local intrastate Illinois traffic. You're not challenging. You're not -- your case doesn't allow you to challenge it. You haven't got that kind of a case and your State Supreme Court has already sustained its restricted application to intrastate Illinois business. David Axelrod: And the State Supreme Court has also pointed out in its decision sustaining the law that it did not concern itself with the burden question. And may I quote from the State Supreme Court in Rudolph versus Bibb, the State Supreme Court said, “No question is raised under the Commerce Clause of the federal constitution.” And further, the State Supreme Court, after the decision of the three-judge court in our case, acknowledged that fact and I referred to pages 36 and 37 of the appellant's brief where the State Supreme Court said, “It is difficult to see why the specified splash guard should be required on foreign vehicles passing through this State citing Navajo versus Bibb our three-judge court decision. Felix Frankfurter: Well, then the real question and the only question is whether this is -- since you're not here challenging this as violative of due process -- David Axelrod: We are not. Felix Frankfurter: -- so the only -- the real question is, is this Southern-Pacific case? David Axelrod: We rely on the Southern-Pacific and Morgan versus Virginia. On those two cases, the State relied to Maurer versus Hamilton and the Barnwell case. The State in its reply brief took the position that another case which it cited the Terminal Railroad Association brief was more applicable to our facts than the South -- Southern Pacific-Arizona case. I've distinguished that yesterday by pointing out that in the Terminal case which was the caboose case, there was no record there with respect to the cost on the burden question. But in the Terminal Railroad case, interestingly enough, there is a discussion of another case by way of a footnote known as the South Covington case. It was a case involving a -- an ordinance of the City of Covington which attempted to regulate the number of trains which would have to operate between Covington and -- Covington and Cincinnati. And the Court in that case held that statute was bad because it conflicted with Cincinnati. And therefore, because of the conflict question, a burden on interstate commerce was invited and struck that statute down. That case, we say supports our position and is in further support of Morgan and Southern Pacific. Felix Frankfurter: Now, do you introduce evidence to try to establish that in fact this would be an undue burden on commerce? David Axelrod: Yes. Felix Frankfurter: Is that right? David Axelrod: Yes. Felix Frankfurter: And the witnesses to that -- David Axelrod: Many. Felix Frankfurter: -- do they give testimony and the State crossed-examined them? David Axelrod: Yes. Felix Frankfurter: Now, did the State look at those in this record and when Mr. Wines comes to reply, I hope he'll also get himself with this question. Did the State resist the determination of that issue by witnesses? David Axelrod: I will answer that no because they took the position that that issue was irrelevant. That the sole issue was the right of the state legislature to act and that the state legislative act carried with it a presumption of validity. And they generally took the position that that was not involved because as a matter of fact, much of the testimony of the plaintiffs in the lower court was admitted. The basis of the interstate commerce interchanged operations and the like. Felix Frankfurter: I'm turning to the question put to you by Justice Stewart yesterday. If the State said that issue is not before the Court because if this is a safety measure and would be found to be a safety measure and it may be found to be a safety measure on the presumption that the legislation itself carries then why didn't they say that that is not an issue and therefore they ought to meeting the issues. David Axelrod: I don't know why they did or didn't -- Felix Frankfurter: No. I mean isn't that the fact if -- if Illinois said, “That is not an issue before, Your Honors.” At one point they were asked whether they weren't really suggesting that as to automobiles, the Southern Pacific case doesn't apply because railroads are different. David Axelrod: We -- we ans -- Felix Frankfurter: And if that issue was not contested and if the issue which they did or goes against them, why doesn't Mr. Justice Stewart's question becomes pertinent in case we should disagree with the State namely that they then would have a right to canvass that issue. David Axelrod: Well -- Felix Frankfurter: You said yesterday, you thought not. You thought that if -- if they had claimed that if by -- if it's presumptively effective measure, here we deem, nothing more to be said if they so much prevail. If that is rejected as -- even though the question of undue burden of interstate commerce as to which you did address yourself the witnesses. But as to what the State said, that's not an issue. Why does it not become an issue if the ground of their defense falls? David Axelrod: We take the position that the question of safety before the Court was in issue and we put testimony in -- on that subject. Felix Frankfurter: But they quoted their argument and said we don't want to play that game. David Axelrod: That's correct. But I don't think that they read Southern Pacific and Morgan versus Virginia properly. I don't think that the State in trying its case tried it properly under the facts in Morgan and Southern Pacific. We think we did. We think we've adhere to the principles annunciated in Morgan and Southern Pacific. The lower court thought so because it distinguished Morgan and Southern Pacific from Maurer and Barnwell in a very interesting discussion. And I think that the lower court accurately summarized the law applicable to the facts. We think it was a commendable opinion with respect to a dissertation upon the subject. Felix Frankfurter: If I may request a question. And I ought to be putting it clearly. You did but they didn't. They thought that they could rest on their claim that this is a safety measure justified or indicated by local police policy. Now, whether rightly or wrongly, they didn't go into the other issue, they didn't so it appear. And my question is what Justice Stewart's question yesterday was, are they therefore foretold from leading the issue if they choose? In case one should agree with you and say, yes on this record there is ostensible or prima facie of undue burden. David Axelrod: I would think that they should be. It would be foreclosed. Felix Frankfurter: Why? David Axelrod: Because of the fact that they have pitched their case on an erroneous concept of the law. On the concept of the law that this Court does not have the right to resolve, the conflicting question of State versus national interest. They take the position this Court doesn't have that right. We say this Court has -- Felix Frankfurter: Can we tell them that they're mistaken? And therefore, as they say, “All right, if you're not instructed that -- this although seemed to be a safety measure by Illinois in fact operates adversely to the Commerce Clause.” We so instruct them, why should they be cut off from proving that it doesn't operate adversely? David Axelrod: Well, they attempted to prove by some evidence that it was a safety measure. They fell short of that proof. In fact, their proof fell fat -- flat on its face because the contrary was shown. So they attempted to justify it a little bit but they didn't go far enough. The statute went too far but their evidence didn't go far enough. And our point is, that they must have attempted to show a little bit that there was safety but -- Felix Frankfurter: Well I -- I think they did try. In addition to -- David Axelrod: They tried but fail. Felix Frankfurter: Yes. But -- and still don't want -- to my understanding with the question, assume that's all true. They now want to prove that in fact it isn't a burden on interstate commerce. David Axelrod: Well, I think they'd have their day in court, Mr. Justice Frankfurter. Felix Frankfurter: Well, were they -- it wasn't an issue? David Axelrod: Well -- Felix Frankfurter: You -- you base your case on that claim. They said that is not the claim before the Court. It would be irrelevant. The claim that's before the Court is a safety measure and that it should be bound to be a safety measure at the end of the matter. The Court found it wasn't a safety measure. But the Court -- but they did not contest which they're capable of contesting. All right, it is your safety measure but it's a burden on commerce. And now they show -- why can't they now show it isn't a burden on commerce? Why should all this be left to argumentation? David Axelrod: It isn't being left because our record demonstrates the -- Felix Frankfurter: But they did not avail themselves by court -- David Axelrod: But I can -- Felix Frankfurter: They did not avail themselves (Voice Overlap) -- David Axelrod: But I can try their case for them. We can't tell them how to try their case or put their proof in (Voice Overlap) -- William J. Brennan, Jr.: They left holes in it. And it's your point is that they ought not to be allowed to amend it. David Axelrod: They are not to be allowed to try the case twice after we've shown the error of their ways to them. Potter Stewart: Mr. Axelrod, this is a case according to your position, is it not, where the entire constitutional issue depends ultimately upon issues of fact. David Axelrod: Yes. Potter Stewart: And in that respect, it's at least an unusual case and that most constitutional case (Voice Overlap) -- David Axelrod: We say that the fact question is controlling and this Court has held that in all of these cases, there is no absolute rule. The question is when a fact, in each case and it is up to this Court to resolve the difference between the national and the local interest. And this Court has done so in the cases which we rely on. Potter Stewart: Well why if -- if your position is correct that the entire constitutional question depends upon resolutions of factual issues. Why in conformity with this Court many times repeated to you that it will not determine constitutional questions until or unless the necessity to do so arises, why wouldn't it be appropriate if this Court agree with you to remand this to the District Court to give the State a full opportunity to present its evidence on the facts and to give therefore that court a fuller opportunity that it is not add up to now to resolve the facts. David Axelrod: The trial court never precluded from the -- the State from putting in any testimony. It was simply a voluntary position on the part of the State. They thought they were doing it the right way. Potter Stewart: Yes. David Axelrod: But -- but nobody precluded them. No evidence was excluded by the Court. Now the State shows not to put the testimony in. The little they put in just wasn't sufficient. Potter Stewart: That's -- I understand. And so as a result, we have an unbalanced record factually. We do have factual findings -- David Axelrod: Right. Potter Stewart: -- in the District Court. But a District Court, as you would agree I suppose, is certainly much better equipped than this Court to determine facts. David Axelrod: Well, all this Court has to do, Mr. Justice Stewart, is to determine whether or not the District Court was correct in its application of the law to the facts which it found. It found the facts specifically. This Court, I submit, should look at the opinion of the three-judge court and determine whether or not its application to the law -- of the law to the facts was correct. We submit it was -- William J. Brennan, Jr.: Where does this get you Mr. Axelrod if tomorrow -- then the Illinois reenacts the statute -- has an indicated a new statute. David Axelrod: If this Court should hold it to be a burden, it could not enact such a statute. Felix Frankfurter: Mr. Axelrod I'd like to call your attention. David Axelrod: It only takes the pronouncement of this Court. Felix Frankfurter: You're probably familiar with the two Hammond cases. The City of Hammond against Schappi Bus Line in 275 U.S. where the lower court issued an injunction against the State -- city ordinance on the ground that it was referred in interstate commerce was one of these motor cases. David Axelrod: Bus cases. Felix Frankfurter: Bus cases. David Axelrod: Bus case. Felix Frankfurter: And this Court said when you had a conflict between state law and the Constitution, we'd like to have more detailed enlightenment as to just how the -- this does burden and send it back on its own initiative because of the consideration to which Justice Stewart referred, namely, we don't declare things unconstitutional particularly against state action unless the decree has been -- reflect to fully canvassed fact situation. David Axelrod: We have all of that. Plus, in this record -- Felix Frankfurter: You have on one side with the State for stupid reasons, if you will, or unimaginative reasons or wrong conception of law didn't contest this issue. David Axelrod: Well, they -- Felix Frankfurter: And why should we declare something unconstitutional because the State took a narrow or shortsighted view on the advice of some counsel that this isn't an issue? David Axelrod: Perhaps they couldn't contest the facts and that's why they didn't contest the facts. Felix Frankfurter: Well -- David Axelrod: They had every right to deny them. If they wanted to, they could have. Now, they had every right to do so. Felix Frankfurter: I think that would have in good pleading a hundred years ago. Tom C. Clark: On the welding point, is that one of your main points? David Axelrod: I beg your pardon. Felix Frankfurter: The welding point. David Axelrod: No. That is not one of our main points. Tom C. Clark: On the burden? David Axelrod: No. We have a series of points on the burden and they're all out -- Tom C. Clark: I'll just pass the welding instead, the statute require a welding? David Axelrod: It does not, it doesn't say how. But the testimony shows how it could only be affixed. But we have a series of points on burden and there're a number of them. The larger point is the delays and the insurmountable objects that would be involved in connection with the attempt to move trailers by interchange from California to New York through Illinois where a carrier with a trailer in California would be required under the statute to have his California trailer start out with a contour-equipped trailer so that it could go through Illinois to get to the State of New York. That trailer carrying explosives, that trailer carrying perishables which is the lifeline of the truck business, is the kind of burden that would be involved in this case among other things. So, we have a whole series of facts upon which we rely for the purpose of burden. Tom C. Clark: That would be an issue when a State did not have a requirement at all and you entered a State that did have these requirements. David Axelrod: It would have been except that the problem was never a practical or a real one with any of the States because all of the statutes were either uniformed or there were no statutes. And as a result of the fact that they were uniformed, all of the vehicles carried a straight flap which was good all over. Tom C. Clark: The States put in evidence on the welding points? David Axelrod: They did and we did. And the Court found the facts in our favor as our witnesses testified to it. And there's a specific finding of fact number 24, a series of findings beginning with finding number 22 through 30 of the lower court opinion, Mr. Justice Clark, which specifically covers that subject matter. Tom C. Clark: Well, I don't know if you'll refer to that. I've looked at that up but it doesn't mention the -- I don't see it mentioning the welding. I thought that's one of your main points. David Axelrod: Well, the welding -- the welding was simply the fact that gave rise to the finding but the Court in our case indicated here -- Tom C. Clark: 21 is the one you're referring to? David Axelrod: I'm referring to finding -- yes, finding 21. That it would be impossible in those cases and impractical in others for plaintiffs to equip trailers obtained by interlining of the splash guard required by Illinois. Finding 25 refers to the danger. Tom C. Clark: 25? Thank you. David Axelrod: Thank you. Earl Warren: Mr. Wines. William C. Wines: May it please the Court. I want to thank Mr. Axelrod for correcting his misapprehension. As to my concession, I do concede that the major involved imposes some burden on interstate commerce. I do not concede that it is an undue burden or an unreasonable burden. On the contrary, we say that the burden is a reasonable one and is imposed in the interest of safety upon the public highways of the State of Illinois. Hugo L. Black: Assuming this case went back would you have any more proof to offer? William C. Wines: I'm not sure -- I -- I -- I imaginably would, Your Honor. I did not try the case below. I took no part in the trial and I confined myself entirely to the record only as a deal. Felix Frankfurter: Your -- the State counsel did claim that the enactment of what purported to be -- what professes to be a safety measure forecloses any further consideration of -- William C. Wines: He did, Your Honor. Felix Frankfurter: That was his position? William C. Wines: That was his position. Hugo L. Black: Was that his only position? William C. Wines: No sir. It was (Voice Overlap). It was a steadfast. I beg Your Honor's pardon. Hugo L. Black: What about the answer? Did the answer put in the issue the question of reasonableness and safety, the safe -- in order for it be safe? I thought it did maybe -- William C. Wines: The answer, Your Honor, does put -- I have it at page 21 of the transcript, does put an issue of factual allegations of the complaint. Hugo L. Black: Well does it -- William C. Wines: But it says this -- Hugo L. Black: -- put in issue the factual allegations as to reasonableness and as to burden and as to the safety. Did the complaint deny the allegations that it was unsafe and it was unreasonable and an undue burden? William C. Wines: I think the fair being of the answer is that it does put it in issue, Your Honor. If Your Honor will turn to page 25 of the transcript, they say they deny the allegations made in the paragraph 25 of the complaint in a very the same speculative contextual matters which are based on an imaginary conditions. And may deny -- they deny the factual allegations of the complaint. Yes, I think we'll have to say they do, Your Honor. Felix Frankfurter: But aren't -- if you look at page 259 (Inaudible) Well, is it you theory that a legislator of greater latitude in -- in imposing a burden on commerce as it concerns the operation of motor vehicles in contrast to a railroad. Mr. Houston - No, not exactly. Judge (Inaudible), your argument is pretty close to it doesn't it? Mr. Houston, it gets pretty close judge but we're having this distinction. Then he goes ahead and makes the distinction which is the very thing that Judge (Inaudible) question has indicated, doesn't he? William C. Wines: That's right, Your Honor. Mr. Houston tried the case on the principal theory that the question of reasonableness was not lend for the District Court. And he objected -- Felix Frankfurter: Then it wasn't because the passage of the Act had foreclosed that question. William C. Wines: Yes, I think that was his position. Hugo L. Black: Well, then why does he say that was the only -- I don't know, it maybe, but why does he say that was the only thing. I thought -- didn't he offer some evidence? William C. Wines: Oh, yes. I didn't say that he said it was -- that -- that was the only question. Hugo L. Black: That was one of his grounds -- William C. Wines: That was one of his grounds, Your Honor. Hugo L. Black: And do you think if the record compel that he said to show that the State did not attempt to repute the allegations of the -- William C. Wines: They made no serious attempt to repute the allegation. They did call a witness who testified as to how these contour mudguards can be affixed. And he testified that they can be either welded or bolted. And they did call a state policeman who said that he had heard of no accidents as a result of contour mudguards. And they did put in testimony that contour mudguards tend to prevent debris from flying into the face of the following vehicle but they made no serious attempt to meet the charges that these mudguards -- Hugo L. Black: What are the kinds of attempt -- William C. Wines: -- are inherently unsafe. Hugo L. Black: What other kind of attempt do you now anticipate that could be made other than that they made? William C. Wines: I think there could be -- they -- they could -- they could have more studies and more testimony from the manufacturers as to matters of heat dissipation and the other factors come and gone. Hugo L. Black: Is it true that there's only one manufacturer here that this is permitted? William C. Wines: I don't think the record shows that, Your Honor. Hugo L. Black: That was alleged wasn't it? It wasn't alleged that there was only one? I thought I saw -- William C. Wines: I don't think so, Your Honor. Hugo L. Black: -- where the State neither admitted nor denied that there was only one, maybe identical. William C. Wines: No, I don't think there's only -- there's only one, Your Honor. I know the State didn't admit that. Hugo L. Black: I thought it neither admitted nor denied. I thought that was what he said. Potter Stewart: I think if the allegation -- excuse me. William C. Wines: I beg your pardon. Potter Stewart: What Mr. Justice Black is referring to is the allegation paragraph 24 of the complaint appearing on page 12 of the record saying there is but one type of mudflap or splash guard which can satisfy the requirements of the -- William C. Wines: That -- that is correct. That allegation, I mean, it is correct that that allegation is made if there is but one type. The Act specifies a type of mudguard but the answer does put an issue that only one mudguard, one manufacturer of mudguard satisfies that. Earl Warren: Suppose Mr. Wines, some place in the record the State did go into the question of a safety factor -- William C. Wines: There is some testimony. Earl Warren: -- and did show that there was not as much sideward splash. William C. Wines: Yes, Your Honor. Earl Warren: So they did meet the issue and -- William C. Wines: They did introduce evidence on that. Earl Warren: Then why didn't they go all the way if -- William C. Wines: That, Your Honor, I don't know. I don't know it on the record. I don't know it off the record. I -- I didn't -- I didn't try the case. The assistant who did try it is no longer with the office. And on this appeal, I have confined myself entirely to the record (Voice Overlap) before this Court. Hugo L. Black: Are you able to make a statement to us representing the Attorney General that this case has not been -- the State's case has not been added to be presented and that you can improve the State's case with reference to the findings that had been made? William C. Wines: I would like to confer with the Attorney General before I made that statement. Felix Frankfurter: May I add a qualification? William C. Wines: Yes. Felix Frankfurter: And that if Justice Black would accept the amendment. As to issues, the case was not tried as adequately. It was scared to try it. It went back as to issues not actually contested for, not as to that it might deal with the same question that it is being (Inaudible) more contemplated. William C. Wines: I would -- in fairness -- Felix Frankfurter: (Voice Overlap) -- William C. Wines: -- the Court would require me to discuss that with the Attorney General. I am in charge of the State's Appeals Department and not on its Trial Department. And I have known only what's in the record in this case. Hugo L. Black: Well, I may say if you are the Attorney General who made that statement over your signature, one member of the Court, I will give a great weight in connection with whether you had -- the issue had been properly presented. William C. Wines: I should like to confer with him at my very earliest opportunity. Earl Warren: All right. You will. William C. Wines: Mr. Axelrod has made apparent what the situation is with respect to the Interstate Commerce Commission. The text -- the diction that Mr. Axelrod read to Your Honors proclaims that Commission's intention to leave intact state regulations. And we submit that this regulation is a reasonable one so shown even on the present record for the reasons that I have urged. Felix Frankfurter: You're not implying though, you just said that -- that it may take fair attitude on the part of the Commission. It draws a challenge to a state law that in fact it does undue burden commerce. William C. Wines: No. Felix Frankfurter: No? William C. Wines: No. No, of course not. Unless Your Honors have some further questions that -- Hugo L. Black: Well, I'd like to ask you one more thing -- William C. Wines: Yes. Hugo L. Black: -- just to see what your position is. Suppose it is true that Arkansas forbid the use of the kind of mudflap that your State does, and your State forbids the use of the other one and that it is a fact that Arkansas shipment coming up with (Inaudible) have to make changes in connection with the mudflap that would be dangerous. Would you say that was not to be an undue burden or would you? William C. Wines: I would say that the evidence in this record shows that the contour type mudguard required by the Illinois law although not nearly as equivalent as the flat-type mudguard is a superior mudguard. There is no reason that I know of for requiring of flat -- a flat-type mudguard and -- although the question is not -- was not raised in this record, I say that the Arkansas regulation is an unreasonable regulation not because it permits but because it requires a flat-type when there is no reason for requiring. Hugo L. Black: What does yours require? William C. Wines: We require the contour-type. William J. Brennan, Jr.: Arkansas says that that's unreasonable. Felix Frankfurter: How many States also require the flat? 24 or 20? William C. Wines: They require or permit it. I think nearly all of them permit it. Felix Frankfurter: Everybody except -- William J. Brennan, Jr.: Illinois. Felix Frankfurter: -- Illinois, is that right? William C. Wines: We think that's what the -- that's what the general assembly found and we think the evidence justifies that. Felix Frankfurter: So that Illinois can determine whether it -- whether it -- everybody else should have margin line with it. William C. Wines: Only as to traffic entering Illinois. And these mudguards -- Felix Frankfurter: Entering and leaving. William C. Wines: And -- Felix Frankfurter: Coming and going. William C. Wines: That's right. We think that the measure embodies a reasonable exercise of Illinois' police power and we respectfully submit the judgment of the appeal probably should be affirmed. Earl Warren: Mr. Wines, in view of the questions that we asked you, would you let us know as soon as possible -- William C. Wines: I will. Earl Warren: -- the position of the State is? William C. Wines: The Attorney General is not in Illinois today but I hope to be able to get him by a telephone tomorrow or towards the end of the week. Earl Warren: Yes. Thank you. Hugo L. Black: Mr. Axelrod, I evidently made a mistake in writing down the citation you gave, 52 M. C. C. 377. David Axelrod: 54 M. C. C. 54. Hugo L. Black: 54. David Axelrod: I'm sorry. Hugo L. Black: 54-377. David Axelrod: I'm sorry, Your Honor. (Inaudible) Hugo L. Black: Well, I'm -- I'm told it was 337. Felix Frankfurter: 337. That's right. David Axelrod: It is 54-337. Hugo L. Black: That's right. That is correct. David Axelrod: Yes. I'm sorry.

John G. Roberts, Jr.: We'll hear argument first this morning in Case 15-109, Simmons v. Himmelreich. Mr. Martinez. Roman Martinez: Mr. Chief Justice, and may it please the Court: When an FTCA action is dismissed under Section 2680, the resulting judgment of dismissal triggers the judgment bar for two basic reasons. First, the bar applies to any FTCA judgment, and a 2680 dismissal counts as a judgment under any sensible definition of that term. Second, 2680 dismissals implicate the bar's core purpose, which is to protect the government, its functions, and its employees from the burdens and disruptions associated with multiple lawsuits over the same subject matter -- Sonia Sotomayor: Can I ask you a question? And that is -- meaning -- the only claims that are exempted under the Act are Bivens claims, which are constitutional violations. Why is it that an employee who has committed a constitutional violation is now immune from suit merely because the plaintiff's lawyer made a mistake and didn't file a Bivens claim first? Roman Martinez: Your Honor, the core purpose of the judgment bar, as this Court recognized in Will v. Hallock, is to protect the government from having to litigate multiple times over the same claim. And so -- Sonia Sotomayor: I don't blame you for that, but you didn't litigate multiple times here. The exemption applied immediately, and the case was over. Roman Martinez: Oh, with respect, Your Honor, we did litigate multiple times. The FTCA case was brought; it was pending for over three years. The plaintiff -- Sonia Sotomayor: The Bivens claim was brought shortly thereafter. They were both simultaneously pending before the court. Roman Martinez: Right. Sonia Sotomayor: So if the court had elected to address the Bivens claim first, the bar would have been avoided. Roman Martinez: Well, I think the two cases were brought in two different actions. One was brought several months after the other. And the FTCA action, which is the one that obviously Congress was considering when it enacted the judgment bar, was one that took over three years to conclude, counting the three different appeals that the plaintiff took -- Sonia Sotomayor: That still doesn't answer my point, which is, if the district court had chosen to answer the Bivens claim first, there would be no bar in place. Roman Martinez: Your Honor, I think that in -- in that case, it's true that the -- if the Bivens claim, in theory, that the court could have addressed that. But in most Bivens cases, and in this Bivens case, although it hasn't yet been litigated, the -- the employee is going to raise defenses like qualified immunity and other defenses on the merits. They're going to take a long time for that claim to get -- Sonia Sotomayor: That just means that we're -- we're giving district courts the option to foreclose or close the courtroom door, because the work is too hard to get to? Roman Martinez: No, not at all, Your Honor. The -- the -- the courtroom door is never closed to the Bivens claim, and the plaintiff could have brought his Bivens claim at the outset. He could have litigated the Bivens claim without bringing the FTCA claim. I think what's important to realize here is that what Congress did when it enacted the FTCA was essentially create a new remedy and offer a bargain to -- to tort victims, and it said, look, we're going to create a brand new remedy directly against the United States for money damages. It's a great deal for you, but if you accept the deal, if you accept the bargain, and you choose to bring an FTCA case, and then you choose to litigate that case all the way to judgment, you can't turn around and seek relief under a totally separate claim involving the same facts. That's a very sensible and fair bargain. Ruth Bader Ginsburg: And a claim that could not be brought against the government. I mean, the Bivens claim was specifically saved out of the Westfall Act, so that the employee would have a Bivens claim. The Bivens claim is exclusively against the employee. There's no Bivens liability on the part of the government. So if you follow the ordinary rules of claim preclusion, there would be no preclusion here, because there was no possibility of bringing the Bivens claim against the government, and claim preclusion would apply only to claims that could have been brought. So you couldn't have brought the Bivens claim against the government. It would have to be a separate claim. Roman Martinez: Your Honor, I think that the judgment bar doesn't merely embrace a rule of res judicata, it embraces a different rule that turns on the application of a judgment. Now, with respect to what Congress did in the Westfall Act, there's no question that Congress wanted to preserve the option for the plaintiff to bring a Bivens claim, and there's nothing in our theory of this case that precludes -- that would have precluded the plaintiff from bringing that Bivens claim at the outset. But it's very interesting, and I think it's very telling what Congress did in the Westfall Act, as -- as you adverted to. In Section 2679(b)(2) of the Westfall Act, Congress specifically said that the exclusivity provision that it had enacted in 2679(b)(1) would not apply to Bivens claims. And so it expressly carved out an exception for such claims. But when it did that, it did not carve out a similar exception for Bivens claims to the judgment bar, which is the separate provision in section 2676 that's at issue in this case. And so Congress created an exception to essentially say to plaintiffs, you can still bring your Bivens claim at the outset, but it didn't disrupt the original bargain at the heart of the FTCA, which is that once you bring an FTCA claim, once you litigate that claim all the way to judgment, you can't try to take a second bite of the apple by having a separate claim pending at the same time. Samuel A. Alito, Jr.: You would have a nice, clean textual argument if you were willing to argue that "judgment" means "judgment"; it means any judgment. But in your reply brief, you say that perhaps a technical or a procedural judgment is not a judgment under the judgment bar provision. So what does that mean? What is a technical or procedural judgment? Roman Martinez: So I think, first of all, I think our primary position is that judgment does mean judgment in the sense that it's defined. I think we give nine different dictionary definitions at pages 19 to 20 of our brief, and I think it -- it's -- we think the -- the most sensible reading of judgment is the way it's ordinarily used in legal parlance. Now, that said, we do acknowledge in our reply brief that a couple of those definitions, including the ones that we -- we reproduced, we weren't trying to cherry pick definitions. We just reproduced -- I think there were six of them from Black's Law Dictionary from 1933 that we reproduced. And I think three of those definitions seem to say that a judgment has to resolve issues of the parties' rights or issues of liabilities. So it's possible -- again, we don't think this is the best reading, but it's possible, if you only applied one of those three definitions, that maybe certain kinds of dismissals that are based on curable procedural defects that really don't get to the liability issue in the case at all, it's possible that -- that those might not count as judgments. But we don't think this case presents that. Samuel A. Alito, Jr.: Why wouldn't a dismissal for lack of jurisdiction be a procedural judgment? Roman Martinez: I think in -- in many cases a dismissal for lack of jurisdiction could well be a procedural judgment, but not in this case, because 2680 dismissals are special and unique insofar as they are jurisdictional, as both parties agree. But they're also substantive, as this Court has said many, many times over and over again, in cases like Indian Towing and cases like Levin, most recently, just a few terms ago. So when -- when the Court says -- looks at an FTCA case, and the Court says there is no -- there is no liability here for the United States government and gets rid of the case, even if it puts the jurisdictional label on the dismissal, if it adjudicates the case under 2680, it's making a substantive determination that there's no liability. And I actually don't think that -- that my -- my friend on the other side would disagree with that. I think in his own brief at pages 11 and 12, he makes clear that a 2680 dismissal means that there is no liability for the -- Ruth Bader Ginsburg: No liability on the part of the Federal government under the FTCA, but it's -- it's no judgment at all with respect to the Bivens claim which depends on the employee's conduct. There's been no adjudication at all of the employee's conduct in the first action. Roman Martinez: Right. The first action often will not even often involve a Bivens claim, but I think the question -- the reason we're discussing this particular point is because we're trying to figure out what the meaning of the word "judgment" is in Section 26 of the FTCA. So we're trying to figure out whether the adjudication of a particular FTCA case would qualify as a judgment, and I think there's no question that when an FTCA case is adjudicated and is conclusively resolved in favor of the government on the basis of one of the 2680 exceptions, it's true that that's jurisdictional, but it's also a substantive adjudication of the claim. Samuel A. Alito, Jr.: But what -- Elena Kagan: Mr. Martinez -- Samuel A. Alito, Jr.: Go ahead. Elena Kagan: If I could ask you about the -- what I take to be the Respondent's primary argument in the case now, which is the meaning of this phrase "the provisions of this chapter in Section 1346(b) shall not apply" -- Roman Martinez: Yes. Elena Kagan: -- and of course, that would include the judgment bar. So if you take that provision for all it's worth, it says that the judgment bar shall not apply. So what is your response to that? Roman Martinez: Well, I think we have two -- two responses. Our main response -- and this is the one that we developed the most fully in our reply brief -- is that that language does not mean what he say it -- what he says it means. We think that that language means what this Court has essentially said in a number of cases, most clearly in the Dolan case involving the Postal Service about ten years ago, and what -- what the Court said there was that the 2680 exceptions, that whole provision, set forth exceptions to the government's -- to the United States waiver of sovereign immunity. And it identified that waiver of sovereign immunity as being effected in two different provisions of the FTCA. That's 1346(b), the jurisdictional provision, and 2674, the liability provision. So we interpret that introductory language, the way this Court has interpreted it in cases like Dolan, and said the same thing -- Elena Kagan: That really does make the -- the language something it's not. Instead of the provisions of this chapter in 1346(b), that's what the provision says, you're essentially reading it to say Section 2674 of this chapter and Section 1346(b) So that's a real shift in what the language actually says. Roman Martinez: Well, I think I would say two things to that, Your Honor. First of all, we think that's consistent with the way that the Court has interpreted 2680 in the prior cases like Dolan and Levin that I just mentioned. But more fundamentally, I think the Court already considered and rejected this exact argument about the introductory language, the "shall not apply" language, and it rejected that argument in the Smith case, United States v. Smith. Now, that case -- Sonia Sotomayor: Could you point out where, in that case, we explicitly addressed that language and rejected it? Roman Martinez: You didn't explicitly discuss that language, but the holding of the case was that one of the provisions of this Chapter 2679(b) did apply to a 2680 claim. And so that's -- that's obviously inconsistent with the idea -- the argument that Respondent makes, which is that none of the other provisions of this chapter -- Sonia Sotomayor: Let me just -- Roman Martinez: -- apply. Elena Kagan: That's a -- Roman Martinez: And if I could -- if I could just -- sorry, Justice Kagan. Elena Kagan: No, no, no. Roman Martinez: I just wanted to emphasize. Elena Kagan: We're all being so polite today. Roman Martinez: In response to Justice Sotomayor's point, Justice Sotomayor suggested that maybe the Court didn't address it explicitly, and that's true, but I want to emphasize that the parties did raise this argument, and we briefed this argument at some length in our merits brief, so -- Elena Kagan: 2679 is different, though, right? Because 2679, the text of it, says that the exceptions shall be applicable to FTCA actions. So although the Court didn't directly confront this issue, what it might have said, if it had confronted the issue, was something like, well, 2679, which comes along later, and says all the exceptions are applicable to FTCA actions, essentially says -- creates an exception to the general rule of inapplicability. Roman Martinez: I think -- I -- I think that that would not be the best reading of Smith, because I think that would suggest that the Court saw some sort of conflict between the umbrella language, the introductory clause, and Section 2679(d)(4), which is what you're talking about. I actually think 2679(b)(4) helps us, because what it shows is that Congress shared our understanding of what the "shall not apply" language means. Congress enacted Section 2679(b)(4), which is the one that says the exceptions do apply to Section 2679(b) cases. John G. Roberts, Jr.: You -- you mentioned -- I'm sorry. Roman Martinez: Sorry. No, please. John G. Roberts, Jr.: You mentioned a moment ago that you extensively briefed this question. Did you mean in Smith? Roman Martinez: We briefed it in Smith, Your Honor. And so -- John G. Roberts, Jr.: So you briefed it extensively in Smith, and the Court said nothing about it. Roman Martinez: No, the -- the Court -- the Court's holding was -- John G. Roberts, Jr.: Oh, no. I know the Court's holding. But in terms of the analysis of it, the -- the Court did nothing along those lines. Roman Martinez: Right. Just to step back and let me set the stage. So in -- in Smith, the plaintiff in that case, had made the "shall not apply" language argument that Respondent makes here. It made it in its brief in opposition to certiorari. It was made at page 21. The government then devoted a significant chunk of its brief at pages 19 to 24 to refute that argument, and I think probably because the argument -- the government made a fairly compelling case, the plaintiff then asserted that argument only in one page of his response brief at page 44, and then he raised it at oral argument on page 35. And if Respondent's theory were correct, that would have meant that Smith would have had had to come out the other way. Stephen G. Breyer: Why? I thought -- I don't understand that. I thought the question in Smith, it was a suit against something happened abroad; isn't that right? Roman Martinez: Yes. Stephen G. Breyer: All right. And -- and they said that the employee -- did they hold -- end up holding that the employee could not bring the suit? Roman Martinez: That's right. And it said that -- that -- so the suit happened abroad. Stephen G. Breyer: The employee could not bring the suit. And one of the reasons is because the Bivens action, which that was, is excepted from the Westfall Act, or is excepted -- there's an exception from the -- there's a preface of some kind. Roman Martinez: As I recall, Your Honor, the -- the -- Stephen G. Breyer: Why would it have had to come out the other way? If the Act didn't apply, if the whole thing didn't apply, if the Chapter didn't apply, if the FTCA didn't apply, including the exceptions from the FTCA, then how could the employee have -- why would it have come out the other way? Roman Martinez: I -- I don't recall exactly whether it was a Bivens claim. I don't believe it was a Bivens claim. I think essentially what happened was the case was a case under 2680, because it -- it involved a tort that happened overseas. And the question in the case was whether the substitution provisions -- I think it was a State tort or some other cause of action. The question was whether 2679(b), (c), and (d) substitutions provisions would apply to that claim. Stephen G. Breyer: What I'll do is I'll read that five times. I mean, this is a very complicated -- it's like Abbott and Costello and so forth -- (Laughter.) Stephen G. Breyer: -- but by the time you get through these statutes -- okay. I read it. I'll read it several times. I will absolutely take it in. Suppose I come to the conclusion that Smith, like so many of our cases, deals with a certain number of issues, and maybe there were alternative grounds and we didn't get to them, and I conclude that Smith, in fact, is not a bar to the argument that the other side is making. On that assumption -- Roman Martinez: Yes. Stephen G. Breyer: -- is the case over, and they win? Roman Martinez: No. Stephen G. Breyer: Because? Roman Martinez: No. And -- and just -- I -- just to tie off the point, I -- I think that it's -- this was not an issue of whether there were maybe alternative grounds. This was the -- the square issue in the case. The case could not have come out -- Stephen G. Breyer: I understand you think Smith is the end of it, and all I am saying is one of the things I'm paid to do it is read those cases, and then I have to reach a conclusion of whether Smith is the end of it. If it's the end of it, you win. Roman Martinez: Right. Stephen G. Breyer: Now, if it's not the end of it, do you lose? Roman Martinez: No. We don't lose for a number of reasons. First of all, the arguments that we made in Smith -- so even if Smith were not on the table, that's the hypothesis. I think the arguments about 2679(b)(1) that were at issue in Smith, I think the government's briefs in Smith was absolutely correct, and 2679(b)(1) clearly applies to cases involving claims that fall into the 2680 exceptions. We think that's true as a matter of the text of the FTCA. But even leaving 2679(b) aside -- Stephen G. Breyer: This is the language that's sort of hanging me up. "The provisions of this chapter shall not apply to cases that are based on the exercise of performance of the failure to exercise and perform a discretionary function." "Shall not apply to." Okay. Looks pretty good for you. But over here it says, "The judgment bar shall constitute a complete bar." That's very good for you, but just said it didn't apply. It says this -- this chapter does not apply. Roman Martinez: I think it says the chapter doesn't apply -- Stephen G. Breyer: That's in the chapter. Roman Martinez: A couple of responses, Your Honor. First of all, just as a textual matter, we think that the -- what -- what 2680, what that language says is the provisions of the chapter don't apply to categories of potential claims. So the word is they don't apply to claims. The judgment bar doesn't operate on the basis of claims; it operates on the basis of judgments. It talks about an FTCA judgment. A judgment and a claim are obviously different. A claim is an assertion of a legal right before it's been adjudicated or while it's being adjudicated -- Elena Kagan: That's slicing the bologna pretty thin. (Laughter.) Elena Kagan: I mean, you know, they're trying to set up language that applies to a whole bunch of different provisions and saying, you know, all of these provisions don't apply in the context of lawsuits, basically. Roman Martinez: I think that -- I think that if -- even if you think that that's slicing the bologna too thin, I don't think you need to resolve the case on the basis of that argument because I think there are two additional very strong reasons to reject their reading of the introductory clause in addition to Smith, which we've already talked about. The -- the next reason is that it's -- that that reading of Smith is inconsistent with numerous other provisions of the original FTCA. Justice Kagan, you just said that, you know, the plain text seems to say that they wanted to exempt 2680 claims from all of the provisions of the FTCA, and arguably, that's what the literal language seems to say. But if you look at the original FTCA, that -- that cannot possibly be what -- what that language means. And so let me point you just to four different provisions of the original FTCA that don't seem to make sense under that reading. The first of those provisions is Section 402 of the original FTCA, and we've reproduced that at page 10a of the appendix to our brief. Section 402 is the definitional provision which defines certain key terms for use throughout in the -- throughout the FTCA, and it defines several terms that are used in multiple places within 2680. So if Respondent's theory were correct that the other provisions of -- every other provision of the FTCA doesn't apply to 2680 claims, those definitions wouldn't apply to 2680 claims -- Elena Kagan: Now that's where the Respondents use an argument very much like the one you just used. They say definitions don't apply to claims; isn't that right? Roman Martinez: Well, I -- I think if it's slicing the bologna thin for us, it's slicing the bologna thin for them. And -- Elena Kagan: It's a wash. Roman Martinez: The good news for us is that we have three other provisions that I think also don't make any sense based on their reading. And so if you look at Section 411 of the original FTCA, and that's at page 12a of our brief, Section 411 is the one that applies the Federal Rules of Civil Procedure. Now obviously, the Federal Rules of Civil Procedure are supposed to be used to adjudicate claims that fall within 2680. But in their reading of the statute, the Federal Rules of Civil Procedure would appear not to apply. If you look to the very next page and the very next provision -- Samuel A. Alito, Jr.: Wouldn't they apply anyway? Do you need a provision? Roman Martinez: Congress -- Samuel A. Alito, Jr.: Specifically saying that they would apply? Roman Martinez: I think you probably didn't, but Congress seemed to think that you did. And in all the other statutes, like the Tucker Act and like the Suits and Admiralty Act where the -- where Congress is waiving the sovereign immunity of the United States, it thought it needed to set forth a specific provision in the statute waiving sovereign immunity applying the civil rules. And in fact, the Fifth Circuit in the case, just five -- five or six years before the FTCA was passed, had said that the rules would not apply to a Tucker Act claim. So I think Congress was -- clearly had this problem in mind and was trying to address that. Stephen G. Breyer: Why is that bad? So -- I mean, look, as I read it simply, if I can, you look at the top of 2680, "The provisions of this chapter shall not apply to." And then we have a long list. One of them is an action rising a claim based on a foreign country. So I bring a lawsuit. I was hurt in Mexico. This says the FTCA doesn't apply. And so you say, you know, if it doesn't apply, that means the definitions don't apply. So I say fine. It doesn't apply. Roman Martinez: But if you would -- Stephen G. Breyer: And if I say -- you say the Rules of Civil Procedure don't apply. Fine. Nothing applies. Roman Martinez: Right. Stephen G. Breyer: You don't have an action. Roman Martinez: But if you file the action anyway, and then the Court is adjudicating the action, and at issue in the action is whether, for example, the -- the action involves a Federal agency, which is a defined term, or an employee of the government, which is a defined term, then you would have to -- ordinarily you would -- you would think that the definitional provisions would shed light on that question. And so if you are correct, though, that -- that the definitional provision doesn't apply, then you wouldn't know where to look for the definitions. And if you were to lose that case, and -- and if the government were to win and you wanted to take an appeal, your right to appeal is also one of the provisions of this chapter, and that's Section 412(a) of the original FTCA, and that's reproduced at page 13a of our brief. And so there's a -- the FTCA created a special appellate review provision that essentially gave parties an option to take an appeal either to the -- the circuit courts or to the court of claims. So it's a special FTCA-specific provision. But under Respondent's theory, that appeal provision wouldn't apply because it's one of the other provisions of this -- of this chapter. And then the final provision I want to point to -- Elena Kagan: But presumably just then the normal appeals provisions would apply. You would still be able to appeal a case; you just wouldn't have this special court of claims option. Roman Martinez: Right. But -- but that's what Respondent says. And he says that -- that this, of course, makes perfect sense because Congress didn't want the court of claims to be adjudicating the -- the applicability of the 2680 exceptions. But that argument doesn't make sense for two reasons. First of all, if the government were to lose with respect to 2680, the case would go forward and be resolved on the merits, and maybe government loses that too. It could then take an appeal to the court of claims, at which point the court of claims would be confronted if the government appealed the 2680 determination with exactly the kind of 2680 issue that Respondent says the court of claims wasn't supposed to be considering. Moreover, when -- when Congress recodified the FTCA's appellate review provisions in 1948, just two years later, it sent the provision allowing appeals going to the court of claims to 28 U.S.C. 1504, which is a different provision. It's -- it's not a provision within Chapter 171. But there, when it said the -- what the court of claims' jurisdiction was, it said that the court had jurisdiction over any action brought under the FTCA; in other words, actions that were -- that -- that potentially implicated 2680. Now, we agree with Respondents that the recodification didn't change the meaning of the original FTCA, but what that means is that Congress -- Congress contemplated both before and after the recodification, that all of these issues would be able to go to the court of claims if the parties agreed. Stephen G. Breyer: Can you say the other two before you -- I'm sorry. Roman Martinez: Yes. I -- Stephen G. Breyer: Because I broke into what you were saying before. Roman Martinez: So -- so just to -- just to recap: The definitional provision, Section 402, the Rules of Civil Procedure provision, Section 411, the appellate review provision, Section 412(a), and then the final one -- and this is the one that is both true -- a problem as of the original FTCA, and it creates massively disruptive consequences with respect to, in practical terms today, that Section 423 of the original FTCA, and it's the provision that's now codified at Section 2679(a) of the current FTCA. So let me say a word about this provision. John G. Roberts, Jr.: That's the one on 16a of your -- Roman Martinez: That's -- that's the one on 16a. If you want to look at the original version, it hasn't really changed. You can also look at the -- at the current version. And I apologize for the confusion, you know. There are a lot of statutory provisions in this case. The current version of 2679(a) is at page 3a. Now, this is -- Elena Kagan: Before -- if I could just interrupt very quickly. Roman Martinez: Yes. Elena Kagan: Of the other three, which ones are still current today? Roman Martinez: So the definitional provision is still there. The Federal Rule of Civil Procedure provision is not there. The appellate review provision, interestingly, has been -- or has been sent to a different provision -- has been sent outside -- outside of Chapter 171. The one that matters the most is -- is Section 2679(a), and that's the provision that says that the FTCA is the exclusive remedy and precludes State tort suits against agencies that would otherwise have been suable understand there sue-and-be-sued authority. And the idea behind that provision is to put, essentially, all Federal agencies on the same footing, whether or not they have independent authority to sue and be sued when it comes to tort claims. If -- if -- under Respondent's theory, Section 2679(a)'s protections did not apply to 2680 claims. And what that means is that agencies that have sue-and-be-sued authority are now subject to such claims. Now, that -- that would, in very practical terms, would massively expand the United States government direct liability for -- for -- in tort. And I think the biggest problem, and the most concrete example I can give you is with respect to the Postal Service. Now, we know from Section 2680(b) of the FTCA that Congress wanted to eliminate the possibility that the government would be liable for the loss of mail or for the negligent transmission of -- of mail. But the Postal Service has independent sue-and-be-sued authority. So if 2679(a), as Respondent says, doesn't apply, then what that means, essentially, is that the Postal Service can now be sued under his theory for negligently transmitting the mail. Sonia Sotomayor: I'm sorry. How does any of this save you from an individual suit? Meaning under any reading you give this provision, an individual who chooses not to go under 1346 and simply sue the individuals involved could do that -- Roman Martinez: Right. Sonia Sotomayor: -- either under a Bivens claim or under the Administrative Act, et cetera. Roman Martinez: Yeah. Sonia Sotomayor: What you're saying is, you have the opportunity, as the United States, to step in if you choose. Is that it? Roman Martinez: If -- if -- if a Bivens claim is brought, then the judgment bar would have no operation. But that is consistent with the purpose of the judgment bar, which -- which is to ensure that -- that a suit is only brought once. And I think -- Sonia Sotomayor: Putting that aside, how does your reading save you from all of this definitional discussion we've had for the last five minutes? It's still going to happen, or can happen. Why does the reading being proposed by the other side create a difficulty? Roman Martinez: Well, I think if the Bivens claim can be brought, then the Bivens claim is brought against the individual employee, so the United States government is not liable for -- you know, to take the example we said, for the negligent transmission of mail. And if the Court's -- unless the Court has questions, I'll reserve my time for rebuttal. John G. Roberts, Jr.: Thank you, counsel. Mr. Vergonis. Christian Vergonis: Mr. Chief Justice, and may it please the Court: Through Section 2680 and the judgment bar, Congress has established a fair and sensible statutory scheme where the government accepts derivative superior liability for the torts of its employees, a plaintiff who tries his claim against the government may not seek a second bite at the apple or duplicative recovery by suing the employee personally. That's the fair bargain. But where the United States has not waived derivative liability, the judgment bar is not a gotcha provision that prevents a plaintiff who sued the wrong defendant from thereafter suing the correct defendant, the primarily liable employee. Those claims are outside of the bargain. And the "shall not apply" directive of Section 2680 makes this perfectly clear. As some of the Justices recognized during counsel's presentation, that language says that the other provisions of the Act shall not apply. This unambiguously includes the judgment bar. And there's no inconsistency between that understanding of the "shall not apply" language and any of the other clauses or any of this Court's cases. Samuel A. Alito, Jr.: It can't be read in a strictly literal sense because then 2680 itself wouldn't apply. Christian Vergonis: Well, that's somewhat circular, Justice Alito. Samuel A. Alito, Jr.: All right. That's one way that we're out of a purely literal reading of this. Christian Vergonis: I think it says the FTCA shall not apply to these provisions. It has to apply to itself. No other -- it's -- the literal interpretation is not inconsistent with any of the other provisions not applying, and it's not inconsistent with this Court's decision in Smith. In Smith, this Court focused on the language of 2679(b), which said Westfall Act claims shall be subject to the exceptions. That language, combined with legislative history that Smith examined, where Congress said if a claim is barred against the -- against the government, it's also barred against the employee, was sufficient to resolve Smith. Stephen G. Breyer: What about -- Samuel A. Alito, Jr.: Smith -- Smith could be explained on the absurdity rule, could it not? Christian Vergonis: Smith -- Smith doesn't need to be explained on the absurdity rule. Smith has plain language later enacted, language that governs over the earlier -- Samuel A. Alito, Jr.: Well, the whole point of the Westfall Act was to allow substitution, so if that didn't apply, then there wouldn't be substitution and there would be no point in having the Westfall Act. Correct? Christian Vergonis: Well, certainly you could look at it that way, so yes. I mean, for a provision to overcome the literal language of the "shall not apply" directive, you would need an absurd result from following it to -- to overcome the language. And maybe you had that absurd result in Westfall or any of these other provisions that could justify it, but there's no -- they point to no absurd result that can overcome the import of the plain language in this case. John G. Roberts, Jr.: What if you look at the definitional provisions? Okay, 2680 has a lot of terms that would be subject to some litigation or confusing -- who's -- who's -- confusion. Who's an employee of the government? Is the provision construed to include a contractor? Those are all spelled out in the definitional provision. Now, under your argument, those definitions are off the table and you can litigate for days on end about, does this cover a contractor of the United States? And you're saying, well, normally, you'd say let's look at the definition, and it says -- well, yeah, it says that right there. But under your argument, no, the definitions are not included. Christian Vergonis: No, we think the definitions are included, because definitions govern statutory terms, they don't govern claims. And I don't think, with all due respect, that that's slicing the bologna thin at all. The definitions apply to the terms, and the 2680 -- John G. Roberts, Jr.: Well, it's a -- Christian Vergonis: -- excepts claims. John G. Roberts, Jr.: It's a provision of the chapter -- Christian Vergonis: And it doesn't -- John G. Roberts, Jr.: -- under your reading, which is a strict literal one, that it shall not apply. Those provisions shall not apply to any claims. Okay. Well, somebody brings a claim against a contractor of the United States, and again, you're saying, well, we don't look to the definitions in the Act to determine who's a contractor of the United States, because that provision doesn't apply. Christian Vergonis: Well, you can look to the definitions to understand what 2680 says. And then once you have that understanding, the other -- the substantive provisions don't apply. And I'll give an example. Federal Rule of Evidences 1101 states that these rules do not apply to a certain category of cases, including preliminary proceedings in a criminal case. Federal Rule of Evidence 101 defines what a criminal case is. Nobody would say it's inconsistent with the "do not apply" directive of Federal Rule 1101 to read the definition of a criminal case to figure out when the Federal Rules of Evidence don't apply, or that that somehow gives license to courts to then decide which other rules do and do not apply. None of the rules apply to certain aspects of a criminal case, but you can refer to the definitional rule to understand what a criminal case is. John G. Roberts, Jr.: What about the review provisions? Those seem to be a particular -- particularly problematic aspect. The review provisions, I take it, don't apply either. Christian Vergonis: They don't. And are you talking about the appellate review provisions? John G. Roberts, Jr.: 13(a), Section 412. Christian Vergonis: Yeah, 412 is the appellate review provisions. The decisions were appealable to the circuit courts through the predecessor to 28 USC 1291, Judicial Code 128. So parties could rely on that to appeal to the circuit court. So the special review provision to the court of claims did not apply to 2680 dismissals. And we suggest that that was sensible because Congress could have wanted judgments against the United States, money judgments against the United States primarily to be reviewed by the specialized court of claims, but to have ordinary dismissals under 2680, jurisdictional dismissals, reviewed in the ordinary course by the circuit. Stephen G. Breyer: I can see that, but -- that is, imagine a plaintiff and the plaintiff brings a lawsuit against the Post Office for negligence. The government's defense is that this is a discretionary function, a particular thing. And the plaintiff says, you're right, it's a discretionary function. And now it's dismissed. All right. Now, if that last thing he read doesn't apply because it was discretionary function and fell within 2680, they then could see the Post Office on the basis that the Post Office has independent authority to sue or be sued. And it's hard to believe, he says, that Congress somehow, when they passed these words, "does not apply", suddenly wanted to revive all kinds of suits against, for example, the Post Office, which otherwise would have been barred by that last provision that he read. Christian Vergonis: And the Post Office is a great example, Your Honor, because when Congress enacted the sue-and-be-sued clause for the Post Office, they inserted another provision now at 39 U.S.C., Section 409, which said that tort claims against the Post Office shall be subject to the provisions of the Federal Tort Claims Act. Stephen G. Breyer: So we don't have to worry about the Post Office, the example that he gave. But there may be others. Sue and be sued is a fairly -- I mean, do we know what we're talking about? I like to try to know what I'm talking about. And do we know here what the reach of exempting that last provision from -- just erasing it in a discretionary action suit will be? Christian Vergonis: Two answers to that. The discretionary function exception is a common-law exception, so it may be that suable agencies have that defense available to them anyway. It existed before the FTCA was created as a common-law defense. So the suable agencies who could be sued again can raise other defenses, as this Court held in FDIC v. Meyer, just because a suable agency can be sued on a claim doesn't mean that the claim exists against the suable agency. And three of the exceptions under 2680 are suable agencies themselves. So if you read 2679 as applying to the exceptions, their reading of the statute, you create a situation where, say, the Panama Canal Company is sued -- well, 2679 on their reading bars that suit against the Panama Canal Company and makes the FTCA exclusive, but then 2680 under the FTCA bars the claim against the -- arising out of the activities of the Panama Canal Company. Stephen G. Breyer: So -- so you're -- can I -- are you saying this, in essence? Even if there are other provisions that aren't erased, even if there aren't, this particular erasure means that in an action that is dismissed -- an action against the government -- for the reasons listed in those exceptions -- for example, a foreign country, a discretionary exception -- in such an action, you can sue the employee where ordinary principals of res judicata wouldn't bar you from suing the employee after all. It's a different party. Christian Vergonis: That's our position, and -- and you can only sue the employee today on constitutional tort claims under Bivens. Stephen G. Breyer: But you're saying any claim, if it falls within -- if the reason for the bar, if the reason for the dismissal falls within the exception, and if they wanted to change that, they should have said so. Christian Vergonis: That's -- that's exactly right, Your Honor. And -- and -- Anthony M. Kennedy: Is -- is that another way of saying that the judgment bar applies just to judgments of the merits, or is that somewhat different from your argument? Christian Vergonis: That's one of our arguments, Your Honor. We get to the same result -- Anthony M. Kennedy: Isn't that the same as the argument you just made? Because I'm curious to know, if -- if we think Smith was an interpretation of -- of 2680, and you had to get around Smith and it's awkward to do it, what's your second argument? Is that the argument you're now making to Justice Breyer, or is it different from saying that what we're talking about is judgment on the merits? Christian Vergonis: Well, as I -- as I understood, Justice Breyer's question was the consequences of our argument, and our three arguments lead to the same consequences. But, yes, Your Honor, we take the position that "judgment" means a judgment that would, under the common law, have preclusive effect. So if you move away from the "shall not apply" language, which we think is the most straightforward way of resolving this case, and to the language of the judgment bar itself, we have two arguments under the judgment bar. One is that the judgment bar is only triggered by an action under Section 1346(b) And, again, the "shall not apply" language says 1346(b) shall not apply to the excepted claims. Therefore, this is not a judgment -- a 2680 dismissal is not a judgment under the FTCA. Ruth Bader Ginsburg: What of the government's argument that once you get wind that a 2680 exception is going to get the government off the hook, before a judgment is entered, which might raise the judgment bar, you can voluntarily -- voluntarily dismiss your case against the government so you won't face a judgment? You can amend your complaint, if -- if you sued them both originally, to drop the government, or you can take a voluntary dismissal. What -- how do you answer that? Christian Vergonis: I think once you've -- once they've answered the complaint, Your Honor, I don't think the plaintiff can just dismiss or amend the complaint without seeking leave from the Court, which may result in a judgment of dismissal. Even a judgment of voluntary dismissal, as I understand their view, that "judgment" means any judgment would trigger the judgment bar, under that reading. So to return to Justice Kennedy's question, on judgment in particular, we think it incorporates principles of res judicata. And the Court has looked to principles of res judicata to inform the word "judgment" in other contexts. In the relitigation exception to the Anti-Injunction Act, the Federal courts are empowered to enjoin State court proceedings to protect or effectuate judgments of the Federal courts, and this Court has viewed that as -- viewed judgment errors incorporating principles of res judicata, and only judgments with res judicata effect can be enjoined under that relitigation provision. I think that's a great analogy to this case. Elena Kagan: Could I take you back to the "shall not apply" language for a second? When -- when you were speaking to the Chief Justice, you said, well, the definitional section will continue to apply because definitions apply to terms and not to claims. But then Mr. Martinez said something very similar to that. He said the judgment bar applies to judgments, not claims. So if you're right as to that, why isn't he right as well? And the consequence of his being right was -- is that he would have taken the judgment bar out of that sweeping "shall not apply" language as well. Christian Vergonis: The judgment bar actually uses the language of claims. It says, "The judgment shall constitute a complete bar to any action by the claimant by reason of the same subject matter against the employee whose act or omission gave rise to the claim." So the judgment bar is talking about barring a claim. A claim -- a claim under the FTCA can be brought vicariously against the government as employer. It's agreed to subject itself to respondeat superior liability on the claim. Where these claims are accepted, you know, the -- you know, ordinarily the judgment bar would then say if you have a judgment, the claim can't be brought against the employee. 2680 says it shall not apply to these sorts of claims. So when you have an intentional tort claim for which the government has not accepted respondeat superior liability, the bar on bringing that claim against the employee does not apply. So it's -- it's not the context of where you need to read a definition in order to sensibly apply the words of the provision. It's -- it's actually an operative provision that operates on a claim. And it's, in this context, purporting to operate on a claim that's been excluded by the "shall not apply" language. Samuel A. Alito, Jr.: To go back to the point you were making before, under your interpretation, does the judgment bar add anything to principles of claim preclusion? Christian Vergonis: We think so, Your Honor. We think that's -- understanding the principles of claim preclusion that were in existence in 1946 -- Samuel A. Alito, Jr.: It was in existence in 1946, but today would -- it would be superfluous. Christian Vergonis: Today it may be superfluous with modern principles of res judicata, where we've developed nonmutality and defendants are able to assert defense uses of res judicata. But at the time -- and I think this is a strong contextual clue of what Congress was trying to accomplish with this provision -- a judgment against an employee would be preclusive against a claim against the employer on the same subject matter. And that's because of reasons of potential indemnification by the employee owed to the employer so that the employee could potentially be sued twice on the same claim, once by the plaintiff and once by the employer seeking indemnification. But it did not operate the other way. A judgment in -- in 1946, under the restatement against the employer, didn't bar the plaintiff from then suing the employee. So the judgment bar fills this gap and explains that you need directionality of the statute, explains why Congress enacted a bar that bars suits against the employee, but didn't enact a bar the other way that bars suits against the government's -- Ruth Bader Ginsburg: But it is obsolete in the sense that modern res judicata law would take care of the -- it wouldn't matter whether you sued the government first or the employee case first. It would be preclusive, because you've adjudicated the grounds of liability. Christian Vergonis: That's right. A -- a case that's tried on the merits would be preclusive against either, under my understanding of modern preclusion principles. It would not have then. And -- and this case, this type of case where a claim is dismissed on a jurisdictional ground that the government hasn't accepted respondeat superior liability, doesn't involve any adjudication of the substantive merits of the singular tort claim that the plaintiffs -- you know, the injury the plaintiffs suffered. He tried to bring the case against the government, but it fell outside of the bargain. The government, at the threshold, has found not to have accepted respondeat superior liability on this claim. Samuel A. Alito, Jr.: So you want us to decide this case based on a literal reading of 2680. But the Sixth Circuit did not decide the case on that ground, and we don't have to address that, do we? So why should we not decide whether the Sixth Circuit was correct in its reasoning and apply the same literal reading approach that you recommend to -- with respect to 2680 to the judgment bar, and hold that a judgment is a judgment, and not necessarily a judgment on the merits? And then -- because the issue under 2680 is, as I think the argument has shown, is very complicated. Christian Vergonis: Two points, Your Honor: First, I don't think the argument was waived. This is not a separate ground for relief. It's a separate argument. Samuel A. Alito, Jr.: It's a separate -- it's -- it's another ground for affirmance, correct? It's an alternative grounds for affirmance, which we have discretion to decide whether we want to reach or not. Christian Vergonis: I think it's an alternative argument for the same ground for affirmance. The question presented was whether a 2680 dismissal triggers the judgment bar. This case is about the interaction of two provisions, and it would be very artificial for the Court to ignore the text of one of those provisions and focus solely on the text of the other provision. Substantively, I think the term "judgment" is an ambiguous term whereas the term "shall not apply" is not an ambiguous term. "Judgment" can mean different things in different contexts. It can mean different things within the different provisions of the Act. And some of the provisions of the Act, it seems to me, mean a ward against the government. They talk about the fee as a percent of the judgment. They talk about how the judgment is to be paid. That's 2672. So "judgment" is an inherently ambiguous word, and the Court would need to grapple with that ambiguity if it tries to resolve the case that way. And again, I think the issue was raised in our bio. It's logically intertwined with the question, so I think the Court really, in order to answer the second part of the question intelligently, the Court needs to address the first part of the question as well. If Your Honors have no further questions. John G. Roberts, Jr.: Thank you, counsel. Christian Vergonis: Thank you. John G. Roberts, Jr.: Mr. Martinez, you have two minutes remaining. Roman Martinez: Thank you, Mr. Chief Justice. I have two main points that I'd like to make. First, with respect to the Postal Service, it's true that the Postal Reorganization Act says that the FTCA applies to torts that involve the Postal Service. But Respondent's whole argument is that the FTCA's protections of sue-and-be-sued agencies doesn't protect sue-and-be-sued agencies from claims that involve the exceptions within 2680. And so by his own argument, the -- the postal -- the postal service, because -- because if it's faced with a claim involving the negligent transmission of mail, the Postal Service would not be able to take advantage of 2679(a)'s protections. I think the Court might want to look to the First Circuit's decision in the Davric case, where it addressed this issue. It rejected Respondent's "shall not apply" argument, and it said that it would lead to results that Congress could not have conceivably intended, and we agree with that. The second point I'd like to make is just about the -- the purpose of the FTCA. We think that Congress very clearly wanted to give victims a choice between suing the government and suing the responsible employee directly, but it didn't want to force the government to litigate over the same facts twice. That purpose is squarely implicated. It's not superfluous. The judgment bar is not superfluous under modern rules because, even today, if the -- if the government has to defend indirectly against a Bivens action and also has to defend against an FTCA action, the same concerns about alleviating the burdens and disruptions appear today as -- just as they would have in 1946. Ruth Bader Ginsburg: That's the government's choice. They're not obliged to defend the Bivens action. Roman Martinez: That's true. But I think when Congress enacted the FTCA, it recognized, as a practical matter, that the government, when -- when -- was typically stepping into conduct the defense of employees sued under State torts. So for all of these reasons, Your Honor, we ask you to restore the bargain at the heart of the original FTCA. We ask you to enforce the judgment bar, and we ask you to reverse the decision below. John G. Roberts, Jr.: Thank you, counsel. The case is submitted.

Warren E. Burger: We'll hear arguments first this morning in Number 647, Marchioro against Chaney. Mr. Goldmark, you may proceed whenever you're ready. Charles A. Goldmark: Mr. Chief Justice, and may it please the Court. A Washington statute Revised Code of Washington 29.42.020 regulates the State Committee of Washington's major political parties. One requirement of this statute is that these State Committees be composed of two persons from each county in the state no more, no less and none other. The issue presented here is whether this requirement that the State Committees be composed of two persons per county no more, no less and none other can be constitutionally applied to bar the Democratic party of Washington from establishing its State Committee composed of two persons from each county, plus one person from each legislative district in the state. William H. Rehnquist: Mr. Goldmark, as I understand it in the Supreme Court of Washington you also challenged the requirement that the composition of the committees be one man and one woman. You don't renew that here? Charles A. Goldmark: Mr. Justice Rehnquist, that is correct we do not challenge that requirement here. Harry A. Blackmun: And the last amendments didn't change that sex provision. Charles A. Goldmark: Mr. Justice Blackmun, in my knowledge they did not. Appellants challenge here only the two-person per county requirement and the court below ruled that this provision was severable from the remainder of the statute. Appellants are eight members and officers of the Washington Democratic Party. Four of them were persons elected as legislative district representatives to the Democratic State Committee and denied their seats on the basis of the challenge statute. Appellees are the Democratic State Committee and its chairman at the time this suit was instituted. The State of Washington was served, as required by state law, with a copy of the complaint when this litigation began and notified of the appeal for the Washington Supreme Court. It has not appeared at any stage in this proceeding. The Democratic State Committee is the governing body of the Washington Democratic Party. In 1970, the Washington Supreme Court in the case of King County Republican Central Committee versus Republican State Committee interpreted the authority of State Committees regulated by RCW 29.42.020. The court ruled there that these Party State Committees have the inherent power to govern the statewide operations of parties as political organizations subject -- William H. Rehnquist: Between conventions. Charles A. Goldmark: Between, subject only to the overriding authority of the party state convention. That is correct Mr. Justice Rehnquist they only govern between conventions. Potter Stewart: And they are defined and provided for by legislation enacted by the legislature of your state, are they? Charles A. Goldmark: Mr. Justice Stewart, that is correct. Potter Stewart: And how long has that been true? Charles A. Goldmark: I'm not aware, Your Honor. The statute authorizes that Party State Committees to call conventions and to plan them. It specifically precludes them from setting rules to govern the operations of the convention. Potter Stewart: They are creatures of statute, aren't they, the State Committee? I tell you I'm asking these questions, this is for me a puzzling case and I'm sure you're going to be helpful in straightening me out. But if a State Committee is a creature of statute and if it's -- performed some sort of statutory function in the State of Washington it's one thing. If it's a private organization it's another. In other words, I suppose the Federal Trade Commission to take the national government, which is a creature of statute couldn't all of a sudden have a meeting and say “We're going to expand our membership to 15.” And then have an argument with the Government of the United States saying that their rights of association had been impaired because the statute provided for a lesser number. On the other hand, I suppose that it's equally clear that a garden club could have a legitimate constitutional claim if the legislatures, federal or state said purported to begin to direct what its membership should be. And this -- these committees are creatures of statute, aren't they? Charles A. Goldmark: Mr. Justice Stewart it is not freely -- Potter Stewart: They're not voluntary self -- Charles A. Goldmark: Let us begin. Potter Stewart: -- selecting organizations. Charles A. Goldmark: Democratic Party has been characterized in the King County Republican Central Committee case as a voluntary political association. That association has the right to establish a governing body. Whether the statute that regulates what that governing body does actually creates it, regulates it or as I believe the Court also said in that case, gives it statutory body in being may only be matters of terminology because it seems clear that this is a voluntary association and this regulation regulates the way in which it can do certain functions. Potter Stewart: Well it creates it almost doesn't it, it -- the statute? Charles A. Goldmark: The 1970 decision -- Potter Stewart: It says what a State Committee is and what it shall be composed and then it gets its certain statutory duties in that -- Charles A. Goldmark: The statement of the Washington -- Potter Stewart: -- in that respect is not unlike any governmental agency. Charles A. Goldmark: The statement of the Washington Supreme Court interpreting this statute was that the Party State Committee had inherent power, not statutory power, but inherent power to govern the statewide operations of a party as a political organization. And that is a quote from the court's decision. Potter Stewart: And how many other states are the -- are political parties created and defined by state statute? Charles A. Goldmark: Mr. Justice Stewart, it is not clear to me whether they are created by the statute. Potter Stewart: Or defined by state statute. Charles A. Goldmark: To appellant's knowledge, they are regulated in approximately 32 states. Twenty of those merely reference the existence of a State Committee and leave the composition to the party's choice. Four of them establish a minimum number but allow the remainder to be added by the party. Fourteen, mandate that the party State Committee shall be composed on the basis of one person one vote. Twelve, like Washington, set an absolute figure. William H. Rehnquist: Well, aren't almost all of them provide for elections of county delegates or representatives and then provided that the county delegates shall elect the State Committee? Charles A. Goldmark: Mr. Justice Rehnquist, not to my knowledge. In a number of instances, congressional district organizations for example, are entitled to elect the representatives to the State Committee, or legislative district organizations. Not all are county based, but most have a constituency of some kind like a county. Thurgood Marshall: Mr. Goldmark -- Harry A. Blackmun: The state's Attorney General is noticeably absent from this litigation. Has he ever been in it at all trying to defend the statute? Charles A. Goldmark: Mr. Justice Blackmun, he has not. Appellants served the Attorney General with a copy of their complaint when the suit began, and notified him of the appeal to the Washington Supreme Court. He is not here at any state -- Thurgood Marshall: And also the amended complaint. Charles A. Goldmark: That is correct Mr. Justice Marshall. Harry A. Blackmun: Just one more question, I didn't hear your last sentence. His what? Charles A. Goldmark: He was also served with a copy of our -- of the appellant's amended complaint and of the -- and the notice of the appeal from the trial court to the Washington Supreme Court. Harry A. Blackmun: But he -- then he has never appeared? Charles A. Goldmark: He has never appeared. Harry A. Blackmun: Then in the litigation at any stage? Charles A. Goldmark: That is correct. Thurgood Marshall: That wasn't what I wanted to ask. Aside from that, is there any other marker that we can find that shows the interest that the state has in this statute? Charles A. Goldmark: Appellants are not aware of any Mr. Justice Marshall. I would like to -- William J. Brennan, Jr.: Did you serve him and submit to some state requirement that he must be served of a state statute's constitutionality? Charles A. Goldmark: Mr. Justice Brennan, yes I did. The Washington declaratory judgment statute requires the Attorney General to be served in any suit challenging the constitutionality of the state statute. William J. Brennan, Jr.: But leaves it to him whether or not he shall defend it? Charles A. Goldmark: That is correct, Your Honor. I would like to add in further response to the question from Mr. Justice Stewart that even if the statute is the sole power that gives this committee being, it is clear that the functions, the statute requires that committee to perform are protected by freedom of association. The statute authorizes and requires that committee to call and plan state party conventions. That is an activity protected by freedom of association. Potter Stewart: Well, that's almost -- that's the question in this case. Charles A. Goldmark: The statute requires the Democratic State Committee to provide for election of delegates to the Democratic national -- to a national party convention. As this Court knows from the case of Cousins versus Wigoda, the power within a party to provide for the election of delegates to national convention is considered to be extraordinarily political and a vital matter within that party. Potter Stewart: Now this statute which is quoted in your brief refers to the State Committee of each major political party. I suppose elsewhere in the legislation, major political party is defined one way or the other isn't it? Charles A. Goldmark: That is correct Mr. Justice Stewart. A major political party is one that received 5% or more of the total vote cast in any proceeding statewide election. Potter Stewart: In general too in your state? Charles A. Goldmark: That's correct. Potter Stewart: That by definition. Charles A. Goldmark: The major benefit of being a major political party is that you are allowed to participate in the state's primary system. Minor political parties must hold state conventions in order to place their candidates in the general election ballot. Warren E. Burger: How are these parties structured before the statute was passed? Charles A. Goldmark: The record does not show, Mr. Chief Justice, I -- Warren E. Burger: Does that the matter of which we could take judicial notice if we knew about it? Charles A. Goldmark: Mr. Chief Justice -- Warren E. Burger: Tell me, was it a purely voluntary organization like that Parent-Teachers Association or a Garden Club as Justice Stewart suggested? Just a voluntary -- Charles A. Goldmark: That would be my assumption. This statute, the State of Washington has had statutes regulating the composition of Party State Committees since 1907. If the Democratic Party in Washington is like other political parties in American history, it was a voluntary political association up until the end of about the 1890's when as the Court will recall, there were abuses enough in primary election systems and other areas to cause states to gradually bring political parties within their regulatory power. Potter Stewart: But it's almost a definition first of all, isn't it? Charles A. Goldmark: Mr. Justice Stewart -- Potter Stewart: It states to me “of each major political party shall consist of”. And there's nothing in there that says that some other Democratic political voluntary organization isn't entirely free to form itself and have whatever rules it wants to. But the legislature has defined what a State Committee of each major political party is. Charles A. Goldmark: Mr. Justice Stewart, perhaps I could explain further the ruling the Court in this case with respect to the charter enacted by the Democratic Party, which may further shed light on your concern. That charter was adopted by the Democratic State Convention in 1976. The charter is contained in the party's joint appendix, to establish the Democratic Party's permanent statewide organization. Article 4 (g) of that charter states that the Democratic State Committee shall be the governing party -- body of the party while the convention is in adjournment. In the decision below, the Washington Supreme Court held that the Democratic State Convention as the supreme party authority is implicitly empowered. It did not say empowered by statute, but implicitly empowered to establish the party's permanent statewide political organization, and to delegate authority within that organization. William H. Rehnquist: Is it that the Democratic State Party? That was what you just said. Charles A. Goldmark: The Democratic State Convention, meaning the 1976 adopted the charter. Excuse me, Mr. Justice Rehnquist the Washington Supreme Court could've held that the Washington Democratic State Convention was implicitly empowered to establish the party's permanent statewide organization, and to delegate authority within that organization. William H. Rehnquist: And that is a relatively voluntary organization, I take it? Charles A. Goldmark: That is correct, Your Honor. William H. Rehnquist: What's an example supposing that the Democratic State Central Committee were on the outs with the Democratic State Party as represented by the state convention? What sort of serious burdens could the Democratic State Committee put on the Democratic State Convention or party? Charles A. Goldmark: For example Your Honor, if the Democratic State Convention adopted a party platform which the State Committee then refused to implement that would be a very substantial burden on the party's freedom of association. William H. Rehnquist: Well how would a Democratic State Committee, composed such as this one is by a statute play a role in implanting the platform of the state party? Charles A. Goldmark: Because that is its inherent function. It is as you'll notice clause 5 of this statute authorizes the State Committee to perform all inherent functions of such organization. And in the court in the decision below, the court held that the Democratic Party State Convention is implicitly empowered to establish its permanent statewide party organization and delegate authority within it, and that was the Statutory State Committee. The court below held that the Democratic Party charter is binding authority on the Democratic State Committee absent valid state law to the contrary. William H. Rehnquist: But nothing that the State Central Committee to do would prevent the members of the Democratic State Party, or the people who adhere to the platform without the convention from espousing their views as to how good a platform it was. Charles A. Goldmark: A political party is an organization established to influence policy and to win elections. The only permanent statewide organization that members of the Democratic Party have, the only organization to carry this out between conventions is the Democratic State Committee. If this committee does not implement the party platforms, raise money as the record shows it does, raises money for Democratic candidates and distributes money to those candidates. If the committee does not perform these functions as the convention desires, that would be a very substantial burden -- William H. Rehnquist: Well can't the party itself raise money quite apart from the activities of the State Central Committee? Charles A. Goldmark: The State Central Committee is under the common law of the state under this statute, and under the party's charter its governing body. If the Democratic Party attempted to establish some other organization, appellants have no doubt that it would be denounced as an illegal body. William H. Rehnquist: Are you saying that the Supreme Court of Washington would tell you if the Democratic Party had a fund raising event in Seattle or Spokane and Tacoma that wasn't sanctioned by the State Central Committee that you couldn't have that event? Charles A. Goldmark: No, Mr. Justice Rehnquist, I'm not suggesting that. I'm suggesting that this is the party's permanent statewide organization. It has the authority. When the Democratic State Committee speaks on an issue, it speaks with the authority of the Democratic Party. It elects the party's chairman or elects that state chairman. When he speaks, he speaks with the authority of the Democratic Party. For the convention to establish some other body would not only be contrary to state law, it would be extraordinarily divisive with the party. This is the group that leads this party. Party members have no other organization to look to for this function. The record is clear that this State Committee raises and distributes money to party candidates, passes resolutions and performs all the normal functions of the governing body of a political party. Four of appellants were elected as members to serve and participate in its decisions and have been denied from doing so on the basis of this statutory requirement. And there is no evidence anywhere in the record of any compelling state interest of the State of Washington that justifies the implicitness of such a burden. Potter Stewart: Well isn't it that the legislature has defined what the State Committee is and what it shall consist of. Now, it's not at all unusual for a legislature, state or federal, to set up advisory committees. There's a committee a generation -- almost a generation ago set up by the federal government. I don't know if it was by legislation or resolution or what antitrust study group of which my brother Stevens was a member. And I'm sure whatever it was whether it was legislation or a resolution or an executive order whatever it was, set up put the membership of that should be. And now could that organization passed a meeting and said “We want to double our membership and have a member from every state.” Once the government, legislative or executive had set it up and defined it? Charles A. Goldmark: I do not believe that that organization had its genesis in a voluntary private association. Potter Stewart: There's no indication that this one did either. What we have before us is a legislative act defining what a State Committee is. Charles A. Goldmark: Your Honor, appellants believe as the Washington Supreme Court has said, and with the Court's indulgence, I'll read its statement that appears on page 5 of appellee's brief in which the Washington Supreme Court stated the powers of the state committees, and stated their role in under this statute. Representative of a permanent state party organization, those subordinate to the overriding power of the Party State Convention. So the two were linked and the state convention has power over this body. Potter Stewart: Is the state convention, I interrupt just for a moment, to say is that defined by statute anywhere? Charles A. Goldmark: It is not Mr. Justice Stewart. Potter Stewart: No. Charles A. Goldmark: Is a State Committee created by RCW 29.42.020, as a committee designed to function on a statewide level, it is necessarily invested with the inherent power to adopt rules and regulations for its own internal government, as well as to promulgate subject to the overriding authority of the state convention. Intraparty rules governing statewide operations of the party as a political organization during the interval between conventions. For this reason, appellants submit that state law regulates the activities of the Democratic State Committee. It does not so create them as to strip them of any First Amendment protection. John Paul Stevens: Doesn't everything you read say it's all subject to what the convention dictates? Charles A. Goldmark: Yes, Mr. Justice Stevens. John Paul Stevens: Can't the convention widely it wants to? Charles A. Goldmark: Yes, Mr. Justice Stevens and it has. John Paul Stevens: Well that's -- what? Charles A. Goldmark: And the convention has. The convention in its charter -- John Paul Stevens: We'll take the platform example you gave in Mr. Justice Rehnquist's we're talking. Say the central committee says it shall be A, and the convention says it shall be B.I t'll be B won't it? Charles A. Goldmark: That is, Mr. Justice Stevens that is what the suit is about. The convention said that State Committee shall be two persons per county. John Paul Stevens: Oh no, forgetting the membership. You're talking about if we're getting who -- on any issue except who shall comprise the membership of State Central Committee, wouldn't the convention's views prevail? Charles A. Goldmark: No, Mr. Justice Stevens. John Paul Stevens: And what example would they not prevail? Charles A. Goldmark: To give you an example of something that occurred during the pendency of this case. And I refer to a matter outside the record, something contained in the minutes of the Democratic State Committee meeting, and I believe the Court may take judicial notice of this under the case of Texas Railway v. Pottorff 291 U.S., simply for the fact that the State Committee took such an action. The Democratic State Party platform for a number of years has espoused, repealed state sales taxes on food and drugs. At a meeting prior to a general election to vote on an initiative which would've accomplished this repeal, the State Committee adopted a resolution opposing it. Now what remedy does the state convention have to bring the State Committee into line? John Paul Stevens: It doesn't have to. It just says the policy of the party shall be to favor it instead of opposing it. And that controls under the statute. Charles A. Goldmark: If the state convention meets every two years, it has no power during the interim, except through the party's representatives on the State Committee to see that its mandates are carried out. Litigation, if the party cannot control the composition of its State Committee, so if the State Committee is responsive to the party it has no means except litigation, which courts properly are reluctant to bring. Potter Stewart: Well it's certainly -- the situation is now that what a State Committee is, is defined by statute. Now your remedy is to go to the legislature of the State of Washington and they have to have them either to repeal that statute or amend it. But the whole definition of what is a State Committee is contained in the statute of your state. Thurgood Marshall: But he says he can come here and give us then. Potter Stewart: That is right. Charles A. Goldmark: The common law of the State of Washington gives the Democratic Party the authority to assign functions to its Sate Committee, the same State Committee regulated by the statute and to delegate authority to it. Potter Stewart: It does not just regulate it, it's created. It's defined by the statute, and so far as one can see, created by the statute. Charles A. Goldmark: Mr. Justice Stewart, I must respectfully disagree in terms of terminology, given the decisions of the Washington Supreme Court in the King County Republican case and in the decision of the court below. It seems odd that the Democratic State Convention can ask its State Committee to do anything, as the court below ruled, except to establish the composition of the Party State Committee. John Paul Stevens: Mr. Goldmark -- William H. Rehnquist: What if the Democratic State Convention, Mr. Goldmark, had said that the Democratic State Central Committee shall not be subject to any elections at all, but simply be appointed by the Democratic State Convention every two years. And this Washington state legislature passed the statute saying “No, you're going to have some elections.” Would you feel you had stronger case? In other words, the Democratic State Party was asserting its authority over the central committee by saying that instead of having its -- the central committee having its members elected, they were going to be appointed by the state convention. Charles A. Goldmark: It seems to me if the convention, since it's a large body, was going to appoint these people, it would have to elect them. William H. Rehnquist: Well, but supposing that -- supposing it said then that the chairman of the convention would appoint them? Charles A. Goldmark: It's not clear to me whether that would be proper. I do know in California for example, virtually every member of a part State Committee is appointed by the party officers. For example, the governor appoints two members, the secretary of state appoints two members. This seems to be a common practice in a number of states. Byron R. White: What if the convention decided would be -- initial committee should be composed of two members from each candidate, but the legislator then said “Oh no, the central committee should be selected on a population basis.” Charles A. Goldmark: Mr. Justice White, I thought about that question and it is not clear to me whether the state would have a compelling state interest enforcing a State Committee to be a portion on the basis of one person one vote. In this case, the two-person per county requirement of this statute has already been superseded by a federal court injunction requiring the State Committee to vote on the basis of one person one vote whenever it exercises those electoral functions. The federal court ruling that the Fourteenth Amendment required it to do so when it performed these electoral activities. Byron R. White: What is the status of that litigation? Charles A. Goldmark: That was a stipulated injunction between the Democratic State Committee and the parties in that case, that the State Committee only exercises its electoral functions on very rare occasions. Thurgood Marshall: Well it seems like most party political troubles that via the most states that they settle within the convention politically in Washington they settle them in courts. Charles A. Goldmark: There is no way for the party to settle this in the court Mr. Justice Marshall, because it can't control its own State Committee. What the convention decides can only be settled by litigation because it has a State Committee whose composition it can not control. That is the substantial burden on freedom of association. Thurgood Marshall: So that's the difference from other states where you'd vote it down and not politically? Charles A. Goldmark: Yes, Mr. Justice Marshall. Thurgood Marshall: So we'll be supervising the parties eventually. Charles A. Goldmark: Mr. Justice Marshall, it is appellants belief that if parties are free to decide how their governing bodies are composed, and exert power over them through the political process -- Thurgood Marshall: Then you go to the legislature and change the Act. Charles A. Goldmark: The fact that a legislature can remove a burden on freedom of association and provide that remedy does not excuse the substantial burden that is creating or justify them in prosecution as -- Thurgood Marshall: But wasn't that Act passed by political parties? Or they have nonpartisan elections in -- Charles A. Goldmark: The state legislature is controlled by political parties. It is a fact of political life that often legislatures and politicians in office are not exactly excited about having strong or responsive party organizations, and prefer to see one that's built around individuals. John Paul Stevens: Mr. Goldmark -- Byron R. White: Oh, could the statute say this?“ The Party Central Committee shall be composed on the following ten people.” And then list an accountant, a lawyer, an engineer and just list ten people. It doesn't say they have to be from anywhere, it just says “That's going to be the governing body of the party.” Would that be unconstitutional too? Charles A. Goldmark: Mr. Justice White, only if the party decided that if wish the governing body of some different composition. Byron R. White: Well it does. It does. It decides that it wants that it wants -- Charles A. Goldmark: Two persons per county. Byron R. White: -- it wants two lawyers and two -- I suppose right down the list of them, two of everybody. Charles A. Goldmark: The party's preference should control. Byron R. White: Well why is that? Charles A. Goldmark: Because it is a voluntary political association that has a right to decide for it self how a governing body shall be composed. The composition of the party's governing body can be as important to the success to that party as the choices it makes in its platform. Byron R. White: Well do you think -- do you think the state can impose the duty on the party if the party doesn't want to perform? Charles A. Goldmark: I don't know Mr. Justice White. Byron R. White: Well, do you suppose it can prevent the party from doing something that the party wants to do? Charles A. Goldmark: If the party wishes to take a position on a particular issue, it certainly can do that. If it wishes to conduct a voter educator program on a particular issue, I do not -- really the state could prevent it from doing that absence some compelling state of which -- Byron R. White: Well is there some law of Washington or under the Constitution that would -- if you don't like the rules about the Democratic Party or the Republican party in Washington, there's no reason you can't form another one. Form another party and run it the way you want to. Charles A. Goldmark: This is not a realistic alternative for members of the Democratic Party because they're permitted to its ideas. Byron R. White: I know because you -- I know because you wanted to take advantage of the provision for getting candidates on the ballot. Charles A. Goldmark: We are not, Mr. Justice White, taking advantages of provisions for getting candidates on the ballot. The functions performed by this committee exclusive of those activities are themselves calling and planning state conventions, electing delegates to national conventions are all protected by freedom of association under this Court's prior decisions. John Paul Stevens: Mr. Goldmark, I want to ask you one question before you sit down. If I understand your position correctly, if you just reverse the positions in this case and said you wanted the just two recommend per county or two representatives per county, and the others on the state statute required the legislative representation. You'd say that was the statute would be equally unconstitutional? Charles A. Goldmark: Yes, Mr. Justice Stevens. John Paul Stevens: And is it your position then that no matter what the requirement of the statute is, it would be subject to this attack under the First Amendment? Charles A. Goldmark: No, Mr. Justice Stevens. As I indicated in the question to Mr. Justice White, the state may have a compelling state interest in requiring political party state committees to be a portion on the basis of one person one vote. Otherwise, I can conceive of no other compelling -- John Paul Stevens: One party member per -- I mean, one voting party member or one voter -- I mean what -- Charles A. Goldmark: So that the constituency is a State Committee members are composed of approximate equal members of party members or the electorate. John Paul Stevens: That would be a compelling state interest for having every county represented would not be a compelling state interest? Charles A. Goldmark: Yes, Mr. Justice Stevens, I said it might. Warren E. Burger: Mr. Brink. Daniel P. Brink: Mr. Chief Justice, and may it please this Court. I think to understand the question, we do have to go back into the background of the system, the political structure of the State of Washington and the governmental structure. It's been of -- we're still fairly young state, but of some 70 years duration has there been this structure of 39 counties with 39 separate governments each having their own elected representatives, excuse me, legislative executive in judicial branches. They elect their own county judges, the county commissioners and executives, prosecuting attorneys, county clerks and so on down the line. The state has authorized by a section just one following this, and in the same basic enabling Act in 1907, the existence of county committees which are composed of precinct committee men elected in each county. These organizations of course parallel the county governments. Then the county committee of each county selects two members to the State Committee. It originally was just one in 1907, and 1927 as I recall, they added the rights of one man or/and one woman from each county. Potter Stewart: Now, when you say “they” is that the state legislature? Daniel P. Brink: The state legislature, yes Your Honor. The powers of the county committee are not restricted by statute. And when it is stated here that there can be no other organization speaking for the Democratic party, that is simply not true. Each county speaks for itself and sometimes most vociferously and they're not always in concert. However, the state charter attempted to put the counties in line a little bit and did say that they do have a limitation upon them, and that is that they should attempt at least to follow the policy set forth in the national charter, the state -- excuse me, the national platform, the state platform and the county platform. The State Committee as I said was -- is elected by the -- composed of these people from the county committees, two from each, and just provides a skeleton of the state party and as an administrative, not an electoral and not a policy making body. The policy making is reserved to the state convention. The charter itself requires the State Committee to follow the policies set forth by the state convention and by the state charter. It's important to understand that the functions of the State Committee are relatively limited. We -- I'd like to talk to you about what it does and what it does not do. It does not do a lot of the things represented by counsel. By statute, it comes into being every -- William J. Brennan, Jr.: May I ask this? Are its powers limited to the five specified in the statute? Daniel P. Brink: Its powers, by statute, are limited to those. However it has been assigned additional functions by the state convention. And in further answer to that Your Honor, the state convention can of course assign additional committees to do additional things. The state convention is all powerful in the view of the Washington State Supreme Court in any event. Warren E. Burger: What do you think, Mr. Brink, is the federal issue involved in this case? Daniel P. Brink: I do not believe there to be a federal issue because I do not believe there to be a -- an infringement at all upon anybody's rights to associate. The State Committee does not nominate candidates. It does not even endorse candidates. It does not participate in the election process, it simply the administrative function to try to glue these 39 counties together to provide communication one to the other. It is our position as appellees that there is no issue under the First Amendment. Warren E. Burger: But you make your case -- do you make your case, I'll put it that way, if you demonstrate to us that there is no federal issue involved in the case? That it's a matter for the state legislature and people of Washington? Daniel P. Brink: Mr. Chief Justice that is of course our position. Warren E. Burger: Well now, why not focus sharply on that? Daniel P. Brink: I will attempt to. The state legislature has been requested in the past on several occasions in the last 10 years to change this composition make up of the State Committee. This legislature which is made up by one man one vote basis has declined to do so. In fact, it hasn't even considered the -- been strongly enough to pass from one house to the other. I don't know how I can answer you question further if you -- Byron R. White: Well is there anything in the Washington law that would prevent the convention from forming a committee whatever you wanted it do to perform all the functions that the convention wanted it to perform except the ones that the statute says the central committee has to perform? Daniel P. Brink: I agree, Your Honor. I think that is correct that they can do so that they could form a committee for fund raising. They could form a -- Byron R. White: And so that in so far as -- so that you think the issue really is here whether or not it's constitutional for the state to say that the committee that -- that the central committee that is to perform these five functions have to be two from each county? That's the -- you think that's the issue? Daniel P. Brink: If the legislature said it should be two from each county and -- Byron R. White: For it to perform these particular functions. Daniel P. Brink: Yes, just these limited functions. That does not impinge upon anybody's rights of association or expression. Byron R. White: I understand you say that's really the only issue that's here. Daniel P. Brink: That is to us the only issue that is here. Byron R. White: Because the party could provide for -- under the statute that the party could have all the other functions that the State Committee might be given to perform. It could be assigned to another committee. Daniel P. Brink: It can and in fact they have set up a judicial committee by the charter. They did not set up the separate finance committee that has -- William J. Brennan, Jr.: Well Mr. Brink, this category five perform all functions inherent in such an organization. How broad is that? Daniel P. Brink: That is not very broad in view of the King County Republican case in which the Washington State Supreme Court said that subject to the overriding power of the state convention. So I suspect the legislature went and said inherent just saying “Well, do whatever you can.” William J. Brennan, Jr.: Even the exercise of 1, 2, 3 and 4 under the case you mentioned, the subject to the overriding authority of the convention? Daniel P. Brink: Absolutely, that is the holding of the Washington State Supreme Court back at 1971 in King County Republican case. I -- this Court has not so far, as we can tell, gone so far -- Byron R. White: So your -- you say that under this -- under the Washington law, the -- while there must be a central committee with two members from each county, the convention could remove -- could say if the committee has no functions? Daniel P. Brink: They could theoretically do that in our view. Byron R. White: And will set up another committee to do all the things they want them to do, and will have this committee composed any way they wanted to? Daniel P. Brink: Right, but they must allow the State Central Committee as set up by statute to exist to attempt to coordinate at least the election procedures of the 39 different counties and their own county committees. And it does provide an element of stability between conventions. It is there. It is official. The Secretary of State knows he can call up the State Chairman or the -- of either party and plan ahead for conventions. This is the most important function, seems to me, of the State Committee. And that is to initiate the election procedures by calling conventions, setting dates, heading the precinct committee men and their various precincts. They set the dates for precinct caucuses, for county caucuses and then for the state convention. But as also limited by statute, they can't tell the state convention what to do in its own convention. The case that this Court has cited to of Kasper versus Pontikes and Cousins versus Wigoda are just so far and away from what we're involved in here. Those were -- Cousins versus Wigoda involved a national political party convention and as to which delegation from the State of Illinois should be seated, the one that was elected under the state law or the one that was selected in accordance with rules of the national convention. And the state did attempt to interfere and this Court said it was an interference. But that was a national convention case. The Court was very concerned and well it should be, it's of importance to all parties, all citizens that this convention be held without interference from 50 states. It's also, in the case of Kasper versus Pontikes, that was a nomination case and a state little again from the State of Illinois, and where an Illinois statute prevented appellee from voting in the Democratic primary because she had within 23 months previous, voted in a Republican primary. Now the Washington State Committee does not affect at all primary elections. It does not permit, prevent, deprived anyone from participating in primary or general elections. The Ripon Society case is simply not in point again. A national convention case in which the Republican -- and an also was a Fourteenth Amendment case. There's no Fourteenth Amendment issue here nor is there one raised here. The -- assuming that there would be any kind of a burden upon the appellants, there is a state interest in maintaining the stability and integrity and continuity of the major political parties in the state. To become a major political party in Washington State by getting 10% of the vote at the last general election, and then if the new party, new major party is still in being it can qualify for the primary ballot without a separate convention. As a matter of fact, the only -- I think the only time we had a party that achieved this was the Progressive Party back in 1948, and then of course by the year 1950, nobody was interested to pick up the fact that they were a major party. So they -- we have a lot of minor parties that come and go and a lot of them on the ballot. Potter Stewart: What party was that in 1948? Daniel P. Brink: Progressive Party, Your Honor. Potter Stewart: Progressive. Daniel P. Brink: They got enough vote to qualify for the next time. Potter Stewart: I see. Daniel P. Brink: Didn't follow through. The State Committee is not the policy maker, but it is important that it retain communications and maintain communications between these county organizations who are all out speaking for their selves -- themselves as well. It has the same constituency as those county committees. We suggest the statute is narrowly drawn and serves a state interest to maintain this continuity of the major parties. It is our suggestion that the Court affirm the Washington State Supreme Court. Thank you. Warren E. Burger: Thank you Mr. Brink. Do you have anything further Mr. Goldmark? You have about three minutes remaining. Charles A. Goldmark: This case cannot be distinguished from Cousins versus Wigoda. There, this Court held that a party's choice and the composition of its higher governing body was a choice protected by freedom of association. The matter there was regulated by state law, yet the Court hold -- held that the State of Illinois could not interfere with the delegates chosen by the party to attend the Democratic National Convention, or more importantly a state caucus held to elect members to the Democratic National Committee. And this Court said that that membership in that state caucus was protected by freedom of association because the representatives elected to the Democratic National Committee would be involved in planning the next Democratic National Convention. William H. Rehnquist: Didn't the Illinois court there enjoin those representatives from presenting themselves as delegates to the national convention? Charles A. Goldmark: Yes, Mr. Justice Rehnquist and that is the effect of this statute. It has prevented four of appellants from presenting themselves to the State Committee in participating in its deliberations. William H. Rehnquist: So you must have to say that the State Central Committee created by a statue in Washington is of the same political and associational significance as the Democratic or Republican National Convention sitting every four years to choose a presidential candidate? Charles A. Goldmark: It is of the same significance for freedom of association. The fact that a national party convention was involved in Cousins, means that states may have different interests in regulating. A state may not have an interest in regulating a national party convention or its membership, whereas it may in regulating participation in state party matters, but both are protected. The difference in the compelling interest does not relate that to strip away the First Amendment protection of the association of party members. And Cousins did hold that stating or state interference in a state party caucus to choose representatives to the Democratic National Committee was protected. Warren E. Burger: Thank you gentlemen. The case is submitted.

Earl Warren: Mr. Fredrickson. Floyd A. Fredrickson: Mr. Chief Justice, members of the Court. As we took the recess, we were getting into the discussion of the bailor-bailee common law which is primarily contained in the -- in the amicus brief filed by the Government in this case in the discussion of -- of -- of that case at -- and on the theory of the Government that our position is somewhat like bailor. Of course, we should keep in mind that in this instance, the maritime law that while these cases may have something to do by way of analogy, they're not controlling so far as the relationships between a stevedore and a shipowner are concerned. Now, in looking at the cases I believe that the fairest thing probably that my opponent could expect would -- would be that the Booth case would look at this cases and say that there is some law in the bailor-bailee field that makes the bailor subject to the same warranties that a manufacturer or seller has. Now, you read the Booth opinion and the Court in the Booth opinion says, I won't quote exactly, but the appellant, the shipowner in the Booth case has cited to us many cases in the bailor-bailee field. We've read them and we find that they all involve negligence. Negligence is always a factor in these cases. And the Booth -- the Court in the Booth case looks at the Mowbray case referred to by my opponent this morning, it's an Old English Queen's bench case. And in that case, a shipowner supplied through a stevedore a piece of gear which failed and a stevedore was subject to liability to one of the longshoremen. Then the question was whether the stevedore company could recover indemnity from a steamship company which had supplied this piece of gear. But the question that the Court faced in the Mowbray case was whether or not a stevedore which itself could have inspected it, this gear and seen the defect could recover from a supplier, the shipowner. In other words, the defect in that case was visible and could have been seen and the -- the Court in the Booth case frankly says that that's -- that's the way we read the Mowbray case. The Court in the Booth case also looks at this Hoisting Engine Company case, a case cited promptly by the Government and says that in that case also, the Court was very careful in saying that inspection by the supplier would've determined if there were a defect in this -- in the equipment supplied. Byron R. White: (Inaudible) Floyd A. Fredrickson: That's -- Byron R. White: (Inaudible) Floyd A. Fredrickson: That's right. Other than -- if you get into the sales field I'm -- I'm admitting that -- that -- right, right, right. Byron R. White: (Inaudible) Floyd A. Fredrickson: That's -- that's the way I read them. I might say Mr. Justice White that they cite the Cavallo (ph) case very prominently, a case in which a New York roller skating rink supplied one of its patrons with some roller skates and she skated away sometime after she had got the skates, the wheel collapsed and she fell off and was hurt. And the New York Court does say as part of its opinion, that the rink owed her a warranty of the fitness of those skates but however, they also found negligence on the part of the New York skating rink on the basis of testimony that you could have seen that a locknut on the end of this skate was not holding it so that the -- the statement is -- is just to have a dicta. And I'm frank to admit Your Honor that so are the cases that I've cited for the other proposition that a bailor only has an obligation of reasonable inspection because I've cited to Your Honors some horse rental cases in which the Court also found negligence. Byron R. White: The bailor (Inaudible) Floyd A. Fredrickson: That's generally true, yes. Byron R. White: (Inaudible) Floyd A. Fredrickson: That -- that -- that is a distinction in the facts. Byron R. White: (Inaudible) Floyd A. Fredrickson: I -- I admit that's a distinction in the facts. The Court's haven't -- haven't placed it on that basis as in -- it isn't in the facts of the cases that the Government has cited nor in mine. I -- I think the point is that there just is no common law analogy that we can look to that has a determinative answer to -- to this case. Even the -- the -- the commentators that are referred to rather generously by the Government say that sadly enough we don't find the -- the authority that would hold as we think it should be. In other words that in -- in a non-sales case that a warranty of fitness will be implied. Now, (Inaudible) which is not cited in my brief and I don't know that that it's too important but that (Inaudible) 2d.150, the implied warranty of fitness for breach of which the bailor maybe -- maybe held liable is not an absolute warranty so as to make the bailor an insurer against injury to the bailee under all circumstances. But as rather a warranty by the bailor that he has exercised reasonable care to ascertain that the chattel is safe and suitable for the purpose for which it's hired. Now, we've met that test in this case. As -- as we all agree, that -- that test is behind us. Now, I referred this Court to another perhaps analogy in the common law field. A supplier who was primarily engaged in furnishing services as distinguished from equipment and I've referred Your Honors to some of the blood transfusion cases, Perlmutter from New York and so on, where the courts -- where a patient in a hospital receives blood that is unfit for his system. And -- and -- and the patient says well -- or his administrator usually says that there's a warranty of the fitness of this blood that's supplied. It doesn't matter if -- if the hospital took every step necessary to protect its patient. There's a warranty and the courts have refused to apply a warranty in that instance saying that they served -- that the contract when you get in the hospital is primarily one for services. And we make the same contention so far as a stevedore is concerned. Primarily, what the ship is hiring is longshoreman. It is true that we bring aboard gear incidental to our work and so on. But primarily, what the -- what the shipowner is hiring is a service. Its -- its hiring longshoreman that we employ. Now, as I say again, I don't think that the bailor-bailee cases in the common law field advance the ball one way or the other as far as this case is concerned. I -- I think merely in closing, refer to some of the policy questions that have been -- been raised by my opponent and perhaps by the Court, it seems to me that that the question is -- was where -- where do we want to go from here? Now, the -- between the longshoremen and the shipowner, we all agree that there is a warranty of seaworthiness, doesn't have anything to do with fault. That is behind us. And the -- why -- why is that there? Well, as this Court has said for -- for two reasons, the shipowner is better able to pay. He's an economic -- or the longshoreman is an economic unequal. Also, this Court has analogized the longshoremen to the seaman. Instead the longshoreman is doing work traditionally done by seaman. And there's a whole developmental history of -- of the warranty of seaworthiness as it extends to seamen which isn't applicable to the situation between stevedore company and shipowner. And there's -- the second reason is that the longshoreman, the individual longshoreman when he goes aboard the ship, he doesn't have -- is in any position to make a contract as to what warranties will be extended to him. As is the situation so far as -- as the shipowner and stevedore. Now I make this point for the reason that I -- I don't believe there's any compelling reason for this Court to im -- imply an absolute warranty so far as the stevedore is concerned in its relations to a steamship company as there was for the Court to do it in the situation of an individual longshoreman or a seaman. Shipowners and stevedores are at least, economic equals and -- and perhaps more tends toward the -- the steamship company having a more to say about how the contracts are going to be drawn because my bailees is not really in the record, stevedores compete for business when a ship comes in. And the steamship company is the one who can call the shot so to speak as to what -- what kind of contracts you're going to have to perform the work. So that I say that -- that the reasons for the Court giving a warranty of seaworthiness to a longshoreman are not applicable vis-a-vis steamship company and -- and -- and stevedore. And as a matter of fact, shipowners do make contracts and we have one in this case of course. And there's no -- there's no compelling need to require a stevedore company to be a guarantor of its equipment. We make the point that making us responsible for negligence, implying that or -- or making an implied warranty in our agreements that -- that we're responsible for negligence, that if we see that a condition is not as it should be and we go ahead and work or we negligently -- negligently supply something, I think that's enough. You -- you -- you've gone as far as -- as need be in -- in the situation as it is in our industry. Now, I think also that -- that the point of who is better able to control this situation about the equipment is someone begs the question because here we do -- the shipowner can sue us of course and is -- is a given, an inference of negligence as he was in this case. And what happened actually was the shipowner failed in its proof. Even -- given the advantages of the inference still the -- the testimony from our side that we had inspected, that we had made a test, overcame that presumption. I think the nub of the case is that -- is that -- the shipowner has this onerous burden of -- of unseaworthiness. He -- he -- he wants to pass it on -- he wants to pass it on to somebody else. But as this Court has said, the shipowners' responsibility vis-a-vis the longshoreman is on different principles than the responsibilities between shipowner and stevedore company and that there is no warranty of seaworthiness between stevedore company and shipowner and no reason to -- to extend it. We simply say that liability with fault is a sufficient test to charge a stevedore company. And that's the position we take in this case and we believe it's -- it's justified by what this Court has said previously and by the facts in the industry. Thank you very much. Erskine B. Wood: I have just a couple of very brief remarks in reply, if it please the Court. I think Mr. Fredrickson and I are in agreement that these bailment cases, many of them are fuzzy and it's for that very reason that we don't wish to push the law or ask that the law be pushed beyond the confines of a -- of a maritime case and I think this may serve to answer the question that was in Mr. Justice White's mind. That here -- because the bailment cases are fuzzy, it really isn't necessary to go beyond the case here. We're dealing with maritime law where the shipowner owes this absolute warranty and where the stevedore has exclusive possession and use of this and brings in accord and makes the ship -- renders the ship liable and therefore it seems altogether fitting that there should be the implied warranty. To advert just once again to Mr. Justice Black's question concerning the insurance, I -- I want to again emphasize that we are not asking for a change in what has apparently been the law because since the Booth case, it was from -- for a bigger community, that is the Second Circuit, a bigger shipping community than the Ninth Circuit. Why the law has been that the shipowner -- I mean that the stevedore owes this warranty and I'm sure that no place even on the West Coast have stevedores cancel their insurance, their liability insurance here, because of the 2-to-1 decision of the Ninth Circuit pending before coming up here on certiorari. Potter Stewart: The Booth case was decided in 1958, have we? Erskine B. Wood: I don't recall it. It's given in my briefs Your Honor. It was a long -- about 5, 6 years ago. Now another point on the insurance, I've pointed out that the -- in any event, even if the stevedore has insurance, it still has an incentive to go beyond the call of ordinary care and take measures to prevent these accidents because in the maritime field, it's common knowledge that your insurance rates are based on your experience. It -- there -- it isn't just a uniform rate by all of the insurance companies to all of the stevedores. It depends on what their experiences been, how bad their losses have been. And so, I think that's an important factor that realized that their insurance premiums are going to be heavier if they injure more men. And therefore, by putting on them the burden here, there is an incentive to avoid injury rather than simply shifting their burden under compensation on to an innocent ship operator. And the -- Hugo L. Black: (Inaudible) the fact that they can insure 1643, isn't it? The policy you're talking about. Erskine B. Wood: Well, to some extent of the very point I'm making is that they have to pay the premiums on that insurance and the more liability they have, the heavier those premiums will be. Therefore, there is the incentive on them to avoid this liability by avoiding the injury to their men and going beyond the ordinary care standards as Mr. Justice Goldberg pointed out, setup retirement schedules for these ropes and maybe replace them every 6 months and that sort of thing. Hugo L. Black: (Inaudible) making it as a matter of actual practice, insurance (Inaudible) themselves, put considerable (Inaudible) insurance in a certain field in connection with refusing -- possibility of refusing liability. Erskine B. Wood: I have -- Hugo L. Black: They're not -- Erskine B. Wood: Not seen -- Hugo L. Black: (Inaudible) Erskine B. Wood: I -- I -- I'm -- Hugo L. Black: (Inaudible) Erskine B. Wood: I don't think there's much of that in this particular field, Your Honor. Hugo L. Black: You do not? Erskine B. Wood: I do not in this particular field. I think that in manufacturing plants ashore and things like that, that is probably true. But I think that the insurance companies feel that the increase -- the increase in premiums due to their experience rating is the thing that's going to be the incentive. Byron R. White: How much is the experience rating, a function of premium rates by the function of the experience rating when we're dealing with the kind of problem we have here. I understand that workman's compensation on a longshoreman but is it also in this area? Premium -- Erskine B. Wood: Oh yes, I think so. On liability, yes. Byron R. White: But this is -- this liability rises (Inaudible) Erskine B. Wood: They -- Byron R. White: (Inaudible) only offer to the shipowner. Erskine B. Wood: Yes, it's -- it's under -- it's not their compensation policy, it's under their liability policy but those are -- those are almost invariably written by the same underwriter and -- Byron R. White: And the (Voice Overlap) -- Erskine B. Wood: -- and the premiums are based on -- Byron R. White: A function of -- Erskine B. Wood: -- based on their experience. I -- I think I'm correct. I'm sure I'm correct on that. Hugo L. Black: (Inaudible) first a question of certainty of liability in connection with (Inaudible) I asked this because one of my chief objections when I had (Inaudible) laws that the insurance policies seems to have been -- contracts and rates seems to have been built-up up to that time on an entirely different period (Inaudible) obtaining it, to that period would simply shift liability so that policies already in existence were -- could have quite a different effect. Erskine B. Wood: I think -- Hugo L. Black: It might be for the future (Voice Overlap) -- Erskine B. Wood: I think that might have been -- Hugo L. Black: -- what about (Inaudible) Erskine B. Wood: I think that at the time Ryan was decided that it did create a liability that perhaps the insurance companies haven't really taken into account but that has long since passed and they have now accommodated themselves to Ryan. Hugo L. Black: I understand that and therefore I don't want to make another break (Inaudible) Erskine B. Wood: Yes. Hugo L. Black: -- which would bring about another situation where they're endangered because of the shifts in the law, to liabilities. Erskine B. Wood: Well then I hope you would follow our thesis and follow Booth which has been a law under which they've been insuring for some 5 or 6 years until doubt was cast upon it by the Ninth Circuit opinion in this particular case. The only other remark I would have and it has to do again with this question of, “Who has the best opportunity to eliminate the risk in these matters?” In Mr. Justice Goldberg's questions to Mr. Fredrickson in his answers, I think he conceded that that probably there wasn't very much a ship could do in the way of inspections but it was kind of a suggestion made that well perhaps the ship could do something. And I think it might be pertinent just to read the findings of fact in this case bearing on that. Page 25 of the record, finding 16 says, "The Seattle hatch tent and tent tie-down rope involved herein were owned, supplied, rigged and exclusively controlled by respondent at all times material, said tent rope, was respondent's gear and equipment." And number 18 says, “The securing of a tent and the manner in which the tent and tent rope were being secured was entirely and exclusively within the supervision and control of respondent." So the ship and its officers had absolutely nothing to do with it. Hugo L. Black: (Inaudible) Was any -- defendants put on the fact (Inaudible) there was no written contract which could (Inaudible) the parties? Erskine B. Wood: I think the Court simply -- my recollection Your Honor is that the Court simply said that the work was being under an oral contract. Hugo L. Black: Under an oral contract. Erskine B. Wood: Under an oral contract. Hugo L. Black: And that the parties have made no written contract -- Erskine B. Wood: I think -- Hugo L. Black: -- setting out the terms. Erskine B. Wood: I -- that is true, yes. Hugo L. Black: So what do you think about the effects of that on your case? Erskine B. Wood: Well, I think that leads us only into the contract question Your Honor, because subsequent to Ryan, there have been many cases where the work was done under a written contract that only a written contract in more or less general terms, where the right of indemnity based on implied warranty has been allowed. I -- I call to mind the Crumady versus Fisser I remember, involved a written contract but one of the questions really was whether -- and sort of Dugan & McNamara against Waterman, there were written contracts but -- between other parties and the Court talked about third party beneficiary and things of that sort. But I mentioned those to show that there have been many cases, some here and many in the lower courts involving written contracts which had no express provisions on this particular subject and therefore the courts have said that the implied warranty exists. And I think the courts have -- the Circuits have considered this and said generally, "The -- the implied warranty exists unless there's something in the contract to negative it.” In other words -- Hugo L. Black: (Inaudible) it takes up the question of warranty. How much they do want? What would you say then? Erskine B. Wood: Well, then that becomes a question of contract interpretation certainly. And that of course is the question that is -- would be reserved for the Court of Appeals in this case since they -- since they expressly did not pass on that question and expressly reserved the contract interpretation. We -- we would just have that question -- Hugo L. Black: That would still be open for a jury? Erskine B. Wood: That would -- I -- I concede that that would be open Your Honor for the Court of Appeals to consider the particular contract and the circumstances under which it was drawn and who wrote it and whether they're ambiguities and whether that contract negatives the otherwise existing implied warranty. In other words, the implied warranty is what comes up in the general situation and then if your contract of course, has expressed provisions and those are construed to negative or exclude an implied warranty, why? That would be the result. But that would be a matter of contract interpretation. Hugo L. Black: Your argument is if I understand you, if nothing is -- whatever was said about warranty in the contract, they can determine between the two parties that as a matter of law, there is an implied warranty subject to (Inaudible) Erskine B. Wood: Yes, You Honor. That there -- that that would be true under an oral contract or under a written contract which said nothing about it and then if you have a written contract with specific clauses it then becomes a matter of contract interpretation whether those clauses have negatived the implied warranty. Thank you very much Your Honors.

Warren E. Burger: We will hear arguments next in Strickland against Washington. Ms. Snurkowski, I think you may proceed whenever you arel ready. Carolyn M. Snurkowski: Mr. Chief Justice, and may it please the Court, the issue before the Court today is whether the Eleventh Circuit's en banc decision setting forth the standards by which prejudice and the competency level of a defendant in a collateral action, the manner in which that standard should be applied is up for consideration. The state is very concerned because this particular case concerns three major topics of interest to the state of Florida, and that is that we have a standard that has been imposed by the Eleventh Circuit en banc which upends the standards that the Circuit Courts have addressed. We have a standard that says it is in direct conflict and it acknowledges conflict with a D.C. case, United States versus DeCoster. It is also in conflict with the Florida Supreme Court's assessment of what the state of Florida will do with regard to assessing competency of counsel. In that particular case, Knight versus State, which is cited in our pleadings, the Florida Supreme Court meticulously set forth the standard for the review of claims of competency of counsel and relied on and looked to with approval the case of DeCoster. The third part of this case was actually the first and second part, because it has kind of been meshed. We are concerned here also with the scope that habeas corpus will take in federal litigation by state prisoners, because possibly, possibly the outcome of the Eleventh Circuit Court of Appeals has expanded the ability of the defendant to completely forget about cause, demonstrate a degree of prejudice, not affecting the outcome, and open up all claims that may or may not be cognizable pursuant to habeas corpus proceedings. John Paul Stevens: May I ask you a preliminary question-- Carolyn M. Snurkowski: Yes. John Paul Stevens: --because it is right on that point. This case, as I understand it, was a mixed petition. There was an unexhausted Gardner claim raised by the petitioner which was not... never been submitted to a state court. Is that correct? Carolyn M. Snurkowski: It came about at the federal evidentiary hearing. I don't believe it was specifically initially addressed by the petitioner to the court. What happened, during the course of the proceedings, there was discrepancies with regard to whether the trial court and defense counsel had seen Dr. Jacobson's psychiatric evaluation of Mr. Washington which occurred approximately October 6th, so about six days after his arrest-- John Paul Stevens: But that claim was raised for the first time at the federal habeas corpus proceeding. Is that correct? Carolyn M. Snurkowski: --Well, but again, the claim wasn't per se raised. It came about and it was resolved through further discussions at that proceeding that in fact there was not a Gardner violation because-- John Paul Stevens: There was not a Gardner violation? Carolyn M. Snurkowski: --There was not... right. John Paul Stevens: The Court of Appeals said that claim was raised for the first time in the federal habeas corpus proceeding. Carolyn M. Snurkowski: That is correct with regard to-- John Paul Stevens: Now, do you concede that there was jurisdiction in the federal habeas corpus proceeding notwithstanding the fact that the petition contained an unexhausted claim? Carolyn M. Snurkowski: --The state would contend that as the posture of the development of this case developed, that in fact it was a ruse. There was in fact no unexhausted claim before the federal court. The fact that there was discussion with regard to the Gardner issue, that it was resolved, that in fact that the court did not utilize that material, and defense counsel's remarks with regard to whether he had seen it was unclear. He could not recall and did not know. John Paul Stevens: Well, I agree. I just want to get your position. It is your position that no unexhausted claim was presented. Carolyn M. Snurkowski: That's right, Your Honor. That's right. John Paul Stevens: And if there had been an unexhausted claim, what would your position be? Carolyn M. Snurkowski: The state, because of the nature of the case and the posture the case was in... this case happened to be under an outstanding death warrant in Florida... the state would have waived-- John Paul Stevens: Do you think it is something you can waive? Carolyn M. Snurkowski: --Yes, Your Honor, and as a matter of fact, we have... there is a case out of the Eleventh Circuit which holds to the contrary. We have litigated that kind of an issue, but the state is of the mind that you can waive that issue. John Paul Stevens: The state of Florida's position is that an unexhausted claim does not deprive the federal court of jurisdiction if the state is willing to proceed? Carolyn M. Snurkowski: Yes, Your Honor. The second point, as I said, has to do with habeas corpus proceedings and the scope that possibly this particular decision will have on continuing litigation in this regard. The third part of our complaint with the opinion is the concern, is the concern the state of Florida has with the integrity of the trial judges and the Florida Supreme Court's review of competency of counsel, the question of whether the ultimate fact determined by... the ultimate fact determined by the Florida Supreme Court should be given some deference. Here they used a standard that has not been attacked per se as being unconstitutional. The state is contending that in fact where a state court, the Florida Supreme Court in this particular instance, has reviewed a claim of competency of counsel, that standard is constitutional in the Sixth and Fourteenth Amendment. Federal consideration of competency of counsel in collateral action in federal court should be limited to, first of all, whether the standard is constitutional. If you get past that point, whether in fact the Florida Supreme Court or the trial court in reviewing this initially has made an assessment, a determination as to the correctness of the sentence based on counsel's representations of the defendant at that time. Those are the three main concerns we have with this case. The facts of the case reflect that Mr. Washington pled guilty to three murders. It occurred during a crime spree, unexplained crime spree that happened in September of 1976. The facts are very clear in our record with regard to the murders. In fact, Mr. Washington, without counsel's accountenance, pled guilty. First of all he confessed. He pled guilty and he waived the sentencing proceeding, which is part of our bifurcated or trifurcated... this is the second part of our trial at the sentencing phase in capital cases where we have a separate sentencing jury. He waived all those things, contrary to counsel's advice. The defendant's case was affirmed by the Florida Supreme Court on claims raised. He then subsequently, many years later, I think in this case four years later, he went to the trial court on a 3.850 motion for collateral relief, seeking relief because he says now my counsel is incompetent. Although I pled guilty, I have no complaints about his preparation for trial, although I cut him off at the knees with regard to presenting my case to a jury or to a judge, he was ineffective at the sentencing phase because he did not do certain things. In particular, there were six, but specifically the court has honed in on the fact that he did not contact or call or investigate certain character witnesses, and that he did not obtain information with regard to Mr. Washington's mental condition. He did not obtain psychiatric reports. Those are the two main claims that his complaint is based on. He had more than a dozen issues, but the focus of all the attention in all the courts reviewing this case has been effectiveness of counsel at sentencing with regard to these particular claims. The trial court in this particular case reviewed the claims said under the Knight standard, which requires that you make a specific allegation as to the competency, you make a determination or you show... the defendant has the burden of coming forth and demonstrating that there was some prejudice, and in this particular case that would likely affect the outcome, and that you demonstrate that the actions of counsel fell below that of reasonably effective assistance of counsel. That is the Knight standard. The trial court found that in applying that standard Mr. Washington had not met any of the standards, that it was summarily reversible because the 14 affidavits tendered to the court and the two affidavits of psychiatrists and a psychologist did not refute... first of all, they only went to non-statutory mitigating circumstances. He wasn't complaining about the appropriateness of aggravating circumstances. He wasn't complaining about the appropriateness of statutory mitigating circumstances. It only went to non-statutory mitigating circumstances, and the court stated upon review of this whole record, we find that it does not specifically refute that which counsel did. It did not impair Mr. Washington's ability to obtain a sentence of life in this case. Sandra Day O'Connor: Ms. Snurkowski, was the Florida trial court's determination that the new evidence was insufficient to outweigh the aggravating circumstances as a matter of law a determination of Florida law in your view? Carolyn M. Snurkowski: I believe it was. I believe in assessing... because there we have the trial court, who has to be regulated by the Florida Supreme Court in assessing the appropriateness of the death penalty-- Sandra Day O'Connor: Okay, so you think the Florida trial court determined as a matter of Florida law that the new evidence could not have overcome the aggravating circumstances? Carolyn M. Snurkowski: --Affected the outcome, modified-- Sandra Day O'Connor: Well, do you think that the Florida death statute could remove discretion from the sentencer and be constitutional? Carolyn M. Snurkowski: --Remove? I am sorry, I don't... Repeat your question. Sandra Day O'Connor: Remove the discretion from the sentencer? Carolyn M. Snurkowski: As opposed... you mean-- Sandra Day O'Connor: That would be the effect of the holding as a matter of law then, to remove all discretion from the trial court to be able to sentence to death. Carolyn M. Snurkowski: --I don't believe that is... No, I don't believe that's what we're doing. We are looking at something as a collateral action here. We are talking about the sentencer being the trial judge who says... who is the sentencer in Florida. It is not the jury in Florida. They make a recommendation but the trial court judge makes the determination as to whether death should be imposed based on the aggravating and mitigating circumstances. Sandra Day O'Connor: Well, if as a matter of law the new evidence could not overcome the aggravating, then aren't you saying that the sentencer must give the death sentence? Carolyn M. Snurkowski: No, I don't believe we are saying that. I am saying we are making... it is a weighing process. Has he come forward, has he come forward and demonstrated other evidence that... it's like newly discovered... that, as an example, that the Solicitor General's office has used in their particular pleadings. I think to bring it more to home, into Florida, it is like quorum novis, leave to file error quorum novis. The defendant says, yes, this is all that happened at trial, but I have new evidence, I have other evidence that would affect the outcome, and it was not presented at this proceeding. Under that requirement, he has the burden of demonstrating that it was through no dilatory actions of his own that he didn't uncover it. Certainly that would not be a consideration in this particular issue, but the second part of that, would it have affected the outcome, that is the test, would it have affected the outcome. So in fact you have a sentencer who has made a determination. The question now becomes, has there been anything new introduced into this equation that would require a modification of that? In this particular case the trial court and the Florida Supreme Court in reviewing this particular claim held that beyond a moral certainty this factual recital, this new bit of information would not have changed the outcome, that in fact as a matter of law there were aggravating circumstances that were not challenged, there were no mitigating... statutory mitigating circumstances, and that the new material did not create non-statutory mitigating circumstances, and therefore death was appropriate under Florida statute. Under the authorities of Florida cases, where you have one aggravating circumstance and no mitigating circumstance, death is an appropriate sentence. Again, the facts, as I said, there was a guilty plea to all these cases without regard to what counsel was counseling Mr. Washington in this particular case. Mr. Washington did proceed. He now comes back and complains about that which has been done. The District Court hearing the case on the petition for writ of habeas corpus concluded that he couldn't... it was a closed question as far as he was concerned, but he ruled that there was a need for an evidentiary hearing, and in fact an evidentiary hearing was conducted. During the course of the evidentiary hearing on this matter, Mr. Tunkey, who was Mr. Washington's counsel, was called to testify by the defendant. Others who were called to testify were Judge Fuller and the defendant himself. The main focus, though, I think is important in this particular case is what Mr. Tunkey said, because Mr. Tunkey was now being asked to tell the court, inform the court what was the purpose, why did you do this, why did you do that, did you stop, did you stop your investigation, did you stop your representation of this man once you felt you had this sunken feeling that because he pled guilty he was not taking your advice? That was the nature of the inquiry of Mr. Tunkey. It was not that the Florida Supreme Court or the trial court had reviewed the facts in light of the affidavits prepared and that in fact it demonstrated that there was no entitlement to relief, but rather Mr. Tunkey, what did you do and why did you do this? And that is... Past that point, the trial court after the evidentiary hearing assessed that while, while we, after we have asked him all these questions, and because time has dulled his memory, or because he doesn't want to answer candidly, because he is in fact, he is in fact being pitted against his own client, or maybe because he doesn't know the answer, or maybe because he doesn't remember how he reasoned out why he did something, we have a record that reflects Mr. Tunkey's recollections of what occurred. The trial, federal district judge found that while his judgment may not have been correct in all instances, he could not find that prejudice pursuant to DeCoster, and that is that would likely affected the outcome, had occurred, and therefore he denied the petition for writ of habeas corpus. The matter was taken by the Eleventh Circuit on direct appeal, and the en banc court, after a panel decision, concluded the standard to be... could, with regard to the prejudice aspect could be things that... could it have been helpful, that was the term, helpful to the defense. That was the standard of prejudice. The defendant only had to come forward and say, I am showing you that these things could have been helpful to my defense. The en banc panel rejected helpfulness, and in lieu of that substituted that under Fradey there was a likelihood or not likelihood, that substantial and actual prejudice occurred that would have been a disadvantage to the defense. The state would contend that one of the more... perhaps not... that is a very important issue, but the more important issue in this is also how the court viewed what we must do, and that is what I first started this argument about, how we have turned upside-down the claim here. The Eleventh Circuit suggested that because the district judge did not make a finding with regard to ineffectiveness of counsel, because he didn't do that, it had to be sent back. It was not sufficient that he made an assessment that there may have been errors in judgment, but that there was no prejudice. The state would contend that is the very means by which you go about judging collateral issues. You make an assessment based on the allegations raised and the evidence presented. In this particular case, in the federal court, the state, the state produced all of the defendant's affidavits. When he came forth in his petition for writ of habeas corpus, he filed a bare bones petition, and it was the state in their response that included the record, which was their responsibility, but also included the affidavits which the defendant had relied on in the state trial court. This is kind of the reverse of the weak case, strong case theory of going weak case in state court, strong case in federal court. We had a strong case in the state court and we had a weak case or a minimal case in federal court. But the point is that getting back to what the court found, the court said, okay, there may have been problems, he may not have used the best judgment, but there was no prejudice demonstrated, and that is the focal point of habeas corpus. We are talking about fundamental fairness, whether there has been miscarriage of justice here, not whether Mr. Tunkey should be crucified, and then after he has been crucified, we say, well, yes, you know, he was a nice guy, but you know, actually, looking at the record and seeing what he did, it really wasn't so bad, was it? As a matter of fact, it probably didn't reduce itself to prejudice to this particular defendant, whether you base it on the standard that the Eleventh Circuit has imposed or you base it on the standard that the state suggests is the proper standard for prejudice, and that is that it has a likely effect on the outcome of the proceedings. To give full credit to the Eleventh Circuit, I might add that although in suggesting that first we crucify Mr. Tunkey and then we consider whether prejudice has obtained, they did set out in Footnote 33 of the majority opinion that there may be instances when this kind of procedure could be changed, that in fact you might look to the prejudice aspect first rather than reviewing whether counsel had rendered effective assistance of counsel or counsel's representation fell below a certain standard. However, in this particular case they said, no, no, we find that in this case you have to make an assessment with regard to what Mr. Tunkey did and then, and then, although the court has already found that we do not disagree with that because possibly there could have been an opportunity or there was a reason for this, there may have been, very well been tactical reasons for the way he proceeded. In spite of all that, in spite of the fact there was no prejudice, then you come back, and we will see what you've done. But first of all go back and talk about Mr. Tunkey and whether he in fact represented Mr. Washington well. As Justice O'Connor asked the Solicitor General in the first case, this is a B case, not an A case, based on your question. Certainly the two elements that we need to review is whether in fact prejudice has occurred and to what degree. The circuits throughout this state or this country have utilized the McMahon rule or the McMahon statement, and in 13 years have developed all sorts of degrees of prejudice, degrees or standards to be applied, and that is what is so important today, is that we have some feeling for what kind of degree. While the respondents have conceded in their pleadings that in fact the defendant does have a burden to show prejudice, they would take issue certainly with the degree of prejudice the state would contend is necessary in this particular case. They are opting, I might add, for the panel decision, not the en banc decision in this particular case, although there have been no cross pleadings filed that I know of. The state would contend that the only way, the only way that we can resolve the kinds of problems that exist in habeas corpus, in collateral litigation from state prisoners, and in fact, in fact, federal prisoners under 2255, is to determine that the prejudice that is to... the burden of prejudice the defendant must reach goes to a likelihood of affecting the outcome. Sandra Day O'Connor: How do you think the standard should differ on direct review? Carolyn M. Snurkowski: On direct review? Certainly I believe that there should be some demonstration of prejudice, whether in fact we are going to have a differing scale because of the nature of the proceedings. I might add, fortunately this case is not of that ilk, and the first case was. Sandra Day O'Connor: I know. I am asking, though, if you think there should be a different standard on direct review. Carolyn M. Snurkowski: Yes, I probably would, only to the extent that collateral litigation... we have had a hallmark of what collateral litigation is to do as opposed... you know, we are going to be truth finding. We are looking at the... we have an otherwise valid judgment and sentence that is now later being attacked. Now, while it is true that in the direct appeal he is attacking an otherwise valid judgment and sentence, it hasn't been given the imprimatur of an appellate court to say yes, that particular judgment and sentence has been approved, but the standard in a sense should not be that far off. It may be the Agres standard, where there is something just quite... a little less than showing the likelihood that it would affect the outcome. Perhaps it could be that there was a reasonable doubt raised that wasn't there otherwise. But again, that is not an issue that we have come forward with, because it is not the normal kind of issue that we have... we are faced on a given day to day basis, and we are very concerned again with the collateral type prejudice that should be pronounced with regard to the standard to be pronounced. The second part of this, of course, is also, and it is important in this case, although it is not as precious to the state, and that is the standard with regard to how we determine competency of counsel. What is the standard? What will counsel do? I think if you look through, look through what the circuits have done based on McMahon, we have "reasonable, competent assistant", "customary skill and knowledge", "normal competency", "reasonable effective assistance", "minimal standard of professional representation", "customary skills and diligence", "exercise skill, judgment, and diligence of reasonable competent defense counsel. " and "reasonably likely to render and reasonably rendering effective assistance. " We have a whole host-- Speaker: You haven't listed the Second Circuit's approach. Carolyn M. Snurkowski: --Well, that, I was told that recently it is a farce mockery. They still adhere to the farce mockery, but apparently a case mid-December came out where a panel, I think the case is Trammel versus United States, where they said that they would no longer adhere to the farce mockery, and would in fact accede to a reasonable likely or reasonably likely to render effective-- Speaker: Can a panel do that? Carolyn M. Snurkowski: --I believe in that particular case there was evidence in the record or in the vote that they polled the whole court in that particular case, but I would disagree. Again, a panel might not be able to do that. In that particular case, that's what happened. The state would contend that while I have no panacea, I can't give you the answer to what is the standard to be applied, it seems to me that there are, there are standards or there are better language or better words to be applied. We are not locking to the name we give something, but what in fact counsel does, and the state would submit that whether counsel's acts or omissions result in egregious error which infected the integrity of the fact-finding system is probably more in line with how we are going to assess counsel's representation. We are going to look for an outcome-oriented test to be applied. William H. Rehnquist: Ms. Snurkowski, I want to make sure I have the procedural posture of the case correct. The district, federal district court granted habeas relief to the defendant. Carolyn M. Snurkowski: The federal district court, no, denied-- William H. Rehnquist: Denied it? Carolyn M. Snurkowski: --habeas corpus. William H. Rehnquist: And then Judge Vance's opinion for the majority of the Eleventh Circuit sent the case back to the district court-- Carolyn M. Snurkowski: Remanded it, yes. William H. Rehnquist: --in order to be evaluated under the Eleventh Circuit's standard for ineffective assistance of counsel. Carolyn M. Snurkowski: Right. William H. Rehnquist: Now, you here are disagreeing with the Eleventh Circuit's standard for-- Carolyn M. Snurkowski: Yes. William H. Rehnquist: --Now, if we should agree with your standard, and thereby disagree with the Eleventh Circuit, might there still not be a necessity for a hearing in the district court on the application of whatever standard that we came up with? Carolyn M. Snurkowski: Well, Your Honor, as I am suggesting, the standard to be imposed or the manner by which you view the case or ineffective assistance of counsel is first to look to whether the allegations presented in fact result in prejudice. If no prejudice has occurred, the second step in making a determination as to what counsel did and why he did it is of no consequence. There is no point in finding out why Bill Tunkey did something if you say the 14 affidavits that now are being presented would not have affected the outcome, would not have changed, had no effect on non-statutory mitigating circumstances. William H. Rehnquist: So you say if a charged dereliction of counsel would have in effect made no difference, you don't get into the question of whether or not it was in fact dereliction. Carolyn M. Snurkowski: To what degree. Right, right. John Paul Stevens: May I ask one other question? You haven' t addressed the question of the trial judge's testimony, which is one of the basis of reversal. I am wondering, is it the state's position that if a habeas corpus petitioner wants to put the judge on the stand, that he has the right to do so? Carolyn M. Snurkowski: The habeas petitioner? John Paul Stevens: Yes. This time I know the state put the judge on. Carolyn M. Snurkowski: Right, that's true. John Paul Stevens: Does it work both ways, or is it your view that only the state-- Carolyn M. Snurkowski: It probably does, but I would suspect that there's, you know, there's a problem, certainly there's a problem with that, in that if the-- John Paul Stevens: --Well, I can see the problem. I just want to know what your position is. Carolyn M. Snurkowski: --Yes, I think there's a viable-- John Paul Stevens: It works both ways? Carolyn M. Snurkowski: --Certainly. It's not a one-way street. But I might add in this particular case that the federal district court indicated in his opinion that the statements, while they were admissible, and there wasn't a complaint with regard to them, while he found them admissible, he gave very little credibility to those particular statements, and he said they were not a determinative factor in determining the outcome of this particular result. John Paul Stevens: You mean the judge didn't believe another judge? Carolyn M. Snurkowski: I don't think it was... he just didn't want to give it a lot of weight in that particular regard. Thank you. Sandra Day O'Connor: What if this Court were to determine that admission of that evidence was improper? Then what do we have to do? Do we have to see to it that it's remanded? Carolyn M. Snurkowski: No, I don't believe that that is required in this particular instance. I think then you can again look to the... while you say there is admission of evidence of error, is this the kind of admission of evidence that is so egregious that it affected the trial judge's or in this particular case the district court judge's assessment of the case, and I think that is a kind of assessment you can make because you have a record. It doesn't require further evidentiary considerations outside the record itself. I think this Court can make a finding that in fact while it might have been error to have done that, and the state is not willing to concede that, but while it might have been, it does not require remand to the Eleventh Circuit or to the District Court judge. Thank you. Warren E. Burger: Mr. Shapiro. Mr. Shapiro, before you begin, may I ask a question, more out of curiosity, I guess? Is the New Jersey Department of Public Advocate representing the respondent in this case? Richard E. Shapiro: Your Honor, the public defender of New Jersey is my boss, and I was handling this case when I was in the south representing people in death row cases, and when I came to the office, because of its importance to New Jersey's new capital sentencing law and to standards for effective assistance of counsel nationwide, the New Jersey public defender allowed me to present the case to the Court. Warren E. Burger: On his behalf? Richard E. Shapiro: Yes, Your Honor. Warren E. Burger: Thank you. Richard E. Shapiro: Mr. Chief Justice, and may it please the Court, before discussing the legal standard for assessing claims of ineffective assistance of counsel, it is essential to point out what the District Court found as the reason for counsel's lack of investigation. The record shows that any assertion that counsel made a tactical or strategic reason not to investigate is flatly contradicted. At the evidentiary hearing in the District Court, the District Court had an opportunity to hear from counsel, to evaluate his credibility, and to hear his reasons for what he did and did not do. The District Court evaluated this, the credibility of Mr. Tunkey, and made several critical findings. These findings reject any assertion of a strategic or tactical choice for lack of investigation. In the appendix to the certiorari petition, at Page 264, the District Court finds that Mr. Tunkey testified to his feeling of hopelessness upon learning of the new murder confessions. At Page 282, the District Court finds as a fact that Mr. Tunkey candidly admitted that once the multiple confessions were given, he had a feeling that nothing could be done to save Washington, and that this feeling was behind his failure to do an independent investigation on petitioner's background and potentially mitigating emotional and mental reasons for the killings. Sandra Day O'Connor: Mr. Shapiro, in that regard, do you agree that counsel could have been called at the ineffectiveness hearing to testify what his client told him in the course of preparing the defense? Richard E. Shapiro: Pardon me, Your Honor? Sandra Day O'Connor: Can the attorney himself be called at the hearing-- Richard E. Shapiro: Yes. Sandra Day O'Connor: --on the ineffectiveness claim? Richard E. Shapiro: Yes. Sandra Day O'Connor: To testify as to what his client told him? Is there a waiver of the attorney-client privilege? Richard E. Shapiro: Yes, there is a waiver of the attorney-client privilege in those circumstances. The record is no doubt-- Sandra Day O'Connor: Was that evidence admitted in this case as to why the attorney did what he did? Richard E. Shapiro: --Yes, Your Honor. Mr. Turnkey testified at the District Court hearing, and the record of that hearing and the findings of the District Court leave no doubt that any argument that there was a strategic or tactical choice for this total lack of investigation is without merit. The state never cross appealed these factual findings. There is no demonstration that they are clearly erroneous. Warren E. Burger: Does your case turn... To what extent, I will put it this way, does your case turn on the failure to call the family, the former employers, and friends in the mitigation? Richard E. Shapiro: No, Your Honor. It turns on two things, Your Honor. It turns on the fact that counsel... It turns on one essential overarching principle and two supporting factual assumptions. The overarching principle is that counsel's lack of investigation left him utterly unprepared to present essential factual support for his arguments that David Washington's life should be spared. At the sentencing hearing-- Warren E. Burger: That is the mitigation, what we are talking about. Richard E. Shapiro: --Yes, the mitigation hearing. Warren E. Burger: Well, now, how should he have demonstrated that? Richard E. Shapiro: Well, Your Honor, at the sentencing hearing, Mr. Tunkey argued at Page 322 of the joint appendix that David Washington "possesses a spark within him which is good, which is decent. " yet he could not point and did not point when his client's life was at stake to a single shred of independent evidence that would have advised the judge of a fuller understanding of who David Washington is. Who is this individual who has a spark of decency within him? He did not point to anything within him, Your Honor, but just made that bald assertion. David-- Speaker: Well, Mr. Shapiro, I would think that perhaps in a sentencing hearing the colors are a good deal more blurred and the contours less distinct than when you are talking about proving the elements of a crime, that counsel's judgment in a case like that to do something or not do something should much less readily be faulted than it might be where you are talking about you could have produced this witness that would have definite negative element B of the crime. Richard E. Shapiro: --That might be in a case, Your Honor, where counsel exercises that judgment, and where that is indicated by the record, but in this case, as I have pointed out, the District Court found that the lack of investigation and consequently the inability to present mitigating evidence was due to counsel's sense of hopelessness and a lack of investigation. Speaker: Did the District Court also find that this lack of investigation amounted to ineffective assistance of counsel? Richard E. Shapiro: The District Court did not make that specific finding-- Speaker: It didn't. Richard E. Shapiro: --but we submit that under Pullman-- Speaker: Well, I just asked you to answer the question. Richard E. Shapiro: --Yes, Your Honor. And under Pullman Standard versus Swint, the record leaves no doubt that this was a basic defect in counsel's performance. Speaker: You seem to be arguing that counsel's performance violated some standard, but isn't the fundamental issue before us what the standard is for performance of counsel? Richard E. Shapiro: Yes, Your Honor, but I think it is important to consider first of all that Mr. Tunkey advanced certain positions at the sentencing phase and was unable to present the evidence that would support those positions, because the basic difference between the state and our position in this case is that the proper standard of prejudice focuses on impairment to the defense and not just on the effect on outcome. To get... To demonstrate-- Speaker: Yes, but what if you are wrong on that? You have to convince us first about that. Richard E. Shapiro: --Well, Your Honor, I think that beyond the record demonstrating that counsel failed to present the evidence that would have supported his sentencing argument, the record also demonstrates that counsel failed to fulfill the basic responsibilities of an advocate, and this substantially undermined his ability to present his case at the sentencing hearing. Warren E. Burger: Well, that is-- Richard E. Shapiro: Now, the-- Warren E. Burger: --Mr. Shapiro, that is what my question was directed to. It is the other side of the coin of what Justice White has presented. He asks you what is the standard. I put to you, what is the evidence that you think could have been presented in mitigation that could have made the trier of the sentencing issue forget the grisly, horrible slaughtering of three people? Richard E. Shapiro: --Your Honor, under Florida law, non-statutory mitigating circumstances have often made a difference between life and death, evidence of non-statutory mitigating circumstances. Had Mr. Tunkey conducted an investigation, he could have supported two premises in his argument for David Washington's life, which he did try to advance. One was that David Washington had a spark within him which was good, which was decent. Another was, in his argument, counsel states that no one understands why Mr. Washington might have done what he did or did what he did, and yet there was evidence of... psychiatric and psychological evidence that could have been available to him upon reasonable investigation, that would have established that the combination of child abuse, deprivation, and neglect as a youth combined with the extraordinary pressures that were placed on Mr. Washington at the time of the crimes led to the severe mental and emotional distress which resulted in his breakdown during that period of time. This is precisely-- William H. Rehnquist: How likely do you think a jury would have been to buy that? Richard E. Shapiro: --Well, Your Honor, in this case we can only go by what the Florida Supreme Court has said is the appropriate law in these cases, and by what this Court has said the Florida Supreme Court process is. For one, the Florida Supreme Court has stated in numerous cases which are cited in the brief that non-statutory mitigating circumstances can make a difference between life and death. William H. Rehnquist: I don't-- Richard E. Shapiro: The Florida-- William H. Rehnquist: --I don't doubt that they can be introduced, but I said how likely do you think a jury would have been to buy this analysis that you are suggesting? Richard E. Shapiro: --I think, Your Honor, if sentencing... sentencing in capital cases is what this Court has stated, and that is a series of judgmental factors, a myriad of factors that are responsive to the particular individual circumstances of the defendant and of the offense, then we can't know that unless we speculate. We do know that a witness-- William H. Rehnquist: Mr. Shapiro, what if you had had a history of about 20 cases identical to this in Florida. In every one of them the defense lawyer did exactly what you did, and in every one of them the jury had come back saying no recommendation of mercy. Wouldn't you think that the defense lawyer on the 21st time might be spared that job, and you could say juries just aren't buying that kind of thing? Richard E. Shapiro: --Your Honor, I think that if he did do that as a tactical choice, it would be a different situation. In this case, Mr. Tunkey made those precise non-statutory mitigating arguments. What he didn't do was present the factual predicate for arguments that he was asserting the sentencing judge should have bought. He was saying to the judge, these are the reasons why David Washington's life should be spared. He wasn't providing the judge with the facts, though, and the facts are what make the difference. Sandra Day O'Connor: The defendant had waived the jury here, had he not? The defendant had waived the jury here? Richard E. Shapiro: Yes, Your Honor. Sandra Day O'Connor: We are just talking about the judge. Richard E. Shapiro: He had presented these facts to the judge, and he was telling the judge, these are why David Washington's life, these are the reasons why his life should be spared, but he presented none of the factual predicate. It is like getting up in front of the judge and saying, not guilty, not guilty, not putting on any evidence, and then coming back and saying, well, there was an alibi. He is asking the sentencer to buy an argument or the jury to buy an argument without presenting the factual predicate. That is the defect. Now, any standard to consider ineffective assistance of counsel in these kinds of circumstances must take into account the values that this Court has established in Sixth Amendment cases. First, the standard must preserve the fundamental nature of the right to counsel and our system of justice. Second, the standard, if it is going to work in the myriad of situations that courts are faced with, must provide clear guidelines and criteria for its application in what is essentially case by case adjudication. And third, the standard must accommodate society's interests in the administration of criminal justice and in the finality of judgments. Under any or all of these factors, we suggest that a test focusing on the impairment of the defense, the adverse effect on the defense, and not on the outcome, is far superior. First of all, the outcome determinative test does not preserve the fundamental value of the Sixth Amendment. It simply doesn't. It shifts the focus away from the adequacy of counsel's performance towards an almost exclusive concentration on the trial result. It is a reversal, and has to be faced as a reversal of developments in Sixth Amendment jurisprudence since Gideon. Rather than adequate legal assistance being essential or critical as a requirement for a fair trial, the outcome determinative test assumes the defendant could have a fair trial with incompetent counsel. This is Betts v. Brady in another guise. And frankly, I don't see the difference, Your Honor, between adopting an outcome determinative test in this situation and if a judge and prosecutor get together before a case and say to the defendant, listen, we have looked at the case, the evidence is against you, you are not going to win this anyway, so we don't even have to bother to appoint counsel. The same principle is equally relevant if you are going to start looking at outcome. If substance of counsel is deprived and removed from the case, then the form of counsel is meaningless. Speaker: May I ask just one question? Do you think a different standard applies to retained counsel and appointed counsel? Richard E. Shapiro: No, Your Honor. I think Cairo makes that clear, that the same standard should apply. Speaker: So that if this had been retained counsel and he had made these judgments, you would make the same argument? Richard E. Shapiro: If he made the judgments without the essential factual predicates, without conducting the essential... without performing the basic attributes of counsel, yes, Your Honor. Speaker: Do you think the standard should be different on collateral review than direct? Richard E. Shapiro: No, Your Honor. I think the Constitution says that the defendant is entitled to the assistance of counsel, and this Court has said that that includes the effective assistance, and in fact, our test at all stages of the proceeding would balance society, the fundamental importance of the Sixth Amendment right to counsel and society's interest in finality of judgments. So there would be no need to shift the standards back and forth. For example, under our test, first of all, or the test proposed in our brief, first of all, the petitioner, the defendant, would have to show a serious error. Secondly, even if he shows a basic failing of counsel, what is essentially removal of a basic attribute of assistance from his trial, he would have to show that that impaired the presentation of the defense. Now, by showing the impairment in the presentation of the defense, we are first of all focusing on outcome in this standard. It is the first glimpse of outcome, and the test really says that the integrity of the adversary process must be preserved and can only be preserved by competent counsel, but if in that case there was no effect or adverse effect on the defense, the adversary system functioned. It may have had a few warts, in that counsel didn't do-- Warren E. Burger: We will resume there at 1:00 o'clock. Mr. Shapiro, you may resume your argument. Richard E. Shapiro: Thank you, Your Honor. Mr. Chief Justice, and may it please the Court, there are three basic principles in this Court's Sixth Amendment decisions that must be considered in deciding whether to adopt a standard of prejudice that assesses... that focuses on the effect on outcome or one that focuses on the effect on the defense. First, the standard must preserve the fundamental nature of counsel in our system of justice. Second, the standard should provide guidelines for the lower courts to apply the Sixth Amendment in a variety of situations. And third, as United States versus Morrison points out, in the Sixth Amendment area, the standard should accommodate society's interest in the administration of criminal justice and finality of judgments. I have already explained why the outcome determinative test is an utter failure in preserving any sense of the fundamental nature of the right to counsel. In contrast, a standard that looks at the effect on the defense breathes much needed substance into the formal right of counsel. This is not a question of undermining the adversary system by questioning counsel's adequacy. It is a matter of preserving an adversary system that assumes competent counsel, and that assumes and indeed requires competent counsel. Secondly, the outcome determinative concentration on result will not provide any guidelines for the lower courts in Sixth Amendment analysis. It is uniquely unsuited to develop a body of precedent that is so necessary to develop standards as to the adequacy of counsel's performance. In fact, the outcome determinative test brings the Court full circle into the subjective morass of the farce and mockery standard, and it would be ironic and it is ironic for petitioners to argue three weeks after the last circuit, the Second Circuit, in Trapnel versus United States, rejected in an en banc form, although it was a panel decision, the farce and mockery standard, for the petitioners to argue that this Court should resurrect what is nothing less than an artifact of that outmoded standard. Speaker: Well, do you suggest that those are the only two alternatives, the old Second Circuit case and something else? Richard E. Shapiro: No, Your Honor. With respect to the standard of competency of counsel, every circuit in the country now has rejected farce and mockery for a standard that focuses on the reasonably competent... whether counsel was reasonably competent suggests that the experience... this is an area, as the Court well knows, where the circuits are... have uniquely dealt with most of the cases, most of the problems, and have really functioned as laboratories for a long period of time in dealing with questions of ineffective assistance of counsel, and every circuit in experimenting with different standards and looking at different tests has ended up now-- John Paul Stevens: Supposing you have the correct test, reasonable competence. Did this lawyer fail or pass that test? Richard E. Shapiro: --Your Honor, we would suggest that in three basic respects Mr. Tunkey did not satisfy that test. First of all, a counsel laboring under a sense of hopelessness, as Mr. Tunkey was, is not the zealous advocate that the Constitution requires and that the sacred professional trust of an attorney requires. Warren E. Burger: Eliminating perhaps two-thirds of all the criminal cases that come to trial. At least half. Richard E. Shapiro: Your Honor... well, a counsel laboring under a sense of hopelessness is, if he fails then as a result of that, he fails to conduct any investigation into critical information that is necessary for that particular case, he is totally incapable at that point of either presenting a case or of adequately advising his client. Mr. Tunkey had... Mr. Washington was deprived of all the essential attributes of counsel, and we suggest that under the reasonably competent standard, this is far below what the range of competence demanded-- Speaker: Well, Mr. Shapiro, the Court of Appeals below didn't apply the standard that you suggest, did it? Richard E. Shapiro: --It applied the reasonable competency standard, Your Honor. Speaker: Do you think it did? Richard E. Shapiro: With respect to assessing the standard of prejudice... with respect to assessing counsel's performance. With respect to the standard of prejudice, it applied a test that it extrapolated from United States versus Fradey, and as we pointed out in our briefs, the principles in procedural default cases are inapplicable when assessing Sixth Amendment rights. Speaker: Well, I know, but are you content with... are you defending the standard that the Court of Appeals applied here? Richard E. Shapiro: Your Honor, we are defending the result. The result-- Speaker: No, I am asking if you are defending the standard. Richard E. Shapiro: --We are defending the Court of Appeals' focus on the adequacy of counsel's performance as the relevant-- Speaker: Please, Mr. Shapiro. Are you defending the standard the Court of Appeals applied? Richard E. Shapiro: --We would suggest that the legal standard should be modified. Speaker: All right. If that is so, we don't apply it here, do we? Don't we send it back and tell them to correct it, if we agree with you, to apply the correct standard? Richard E. Shapiro: Yes, Your Honor. Speaker: So that is what we ought to do then? Richard E. Shapiro: You-- Speaker: If we agree with you. Richard E. Shapiro: --Well, if you agree with me, you will remand the case to the Court of Appeals for application of the correct standard. Yes, Your Honor. The outcome determinative test not only resurrects farce and mockery, but it compounds the farce and mockery problems by forcing courts to engage in speculative recreations and revisions of trial records to determine what the hypothetical result would be of the new procedure. Speaker: How is that different... How is that different, counsel, from a motion for a new trial on the grounds of newly discovered evidence? Richard E. Shapiro: Well, it is different in two basic respects, Your Honor. One is that the motion for new trial is not a motion that attacks or deals with the Sixth Amendment right to counsel, so that's... Second is that a motion for new trial assumes that the defendant had a fair trial, competent counsel. Then what it does on the basis of newly discovered evidence, it says that there was something wrong with the judgment, something wrong with the integrity of the verdict, and in that case the focus should be directly on the integrity, whether the new evidence would have changed the verdict. That is not what we have here. This Court has already said in Gideon you can't have a fair trial without adequate counsel. So a motion for a new trial ignores the major premise of Gideon... The motion for new trial analogy of the Solicitor General ignores the major premise, the major constitutional premise of Gideon-- John Paul Stevens: Well, let me just be sure I understand you. You would apply in the constitutional presentation of omitted evidence because counsel was incompetent, as you contend this counsel was, you would say that that should more readily result in relief than just a motion for new trial based on evidence that could not be obtained, newly discovered evidence? Richard E. Shapiro: --Yes. If the-- John Paul Stevens: You would say even though the evidence would not suffice to support a motion for new trial on the ground of newly discovered evidence, nevertheless, as a constitutional matter, a new trial is compelled because the lawyer failed to assemble that evidence. Richard E. Shapiro: --Yes, Your Honor. I suggest we are dealing with apples and oranges. A motion for new trial assumes the very facts that are in issue. John Paul Stevens: I understand it assumes competent counsel, but the impact on the fairness of the proceeding is exactly the same in the sense that there is evidence omitted, isn't it? Richard E. Shapiro: Well, the evidence was omitted, but the-- John Paul Stevens: For a different reason. Richard E. Shapiro: --The evidence was omitted. By the admission of that evidence, the entire basis of this Court's Sixth Amendment decisions has been undermined. There has been a flaw in the adversary system, and there has been a-- John Paul Stevens: Yes, but you are assuming a lawyer who was competent in all other respects except that he failed to assemble this evidence, if I understand you correctly. Richard E. Shapiro: --Well, and we are also assuming that you have to speculate about how the failure to investigate, not the failure to discover, because if counsel conducts a reasonable investigation, there is no claim of ineffective assistance of counsel. It is only when he fails to-- John Paul Stevens: No, but you know what he would have found here. Richard E. Shapiro: --conduct-- John Paul Stevens: There is no dispute, is there, about what he would have found here with a reasonable investigation? Richard E. Shapiro: --Yes. John Paul Stevens: So why should there be a greater chance for success on collateral attack when the man was represented by an otherwise competent counsel than if he just couldn't find the evidence? I don't understand it. Richard E. Shapiro: Well, for one, Your Honor, it is because the failures of counsel bring into question the integrity of the entire judgment in the same way, and that is the teaching of Gideon, the teaching of Gideon that you don't have a fair trial without adequate counsel, in the same way that the lack of the newly discovered evidence called into question the integrity of the final judgment. The analogy is a pure analogy. You can't have a fair, fundamentally fair judgment without adequate counsel. The second respect is that the test that we propose and the test in the Court of Appeals would ensure that even if there was no, if there was absolutely no effect on the outcome, that is, the state could demonstrate that the undiscovered evidence was harmless beyond a reasonable doubt, the defendant would not be entitled to relief. It preserves-- John Paul Stevens: Well, I understand the harmless beyond a reasonable doubt, but you would draw a distinction in this case between two lawyers, one who says what this man said, that I was so discouraged I didn't pursue this lead, and another lawyer who said, I didn't think it would do any good even if I could have found exactly what I now know was available. They would produce different results in your constitutional-- Richard E. Shapiro: --No, Your Honor. I think that if the attorneys... if the attorney did not conduct a reasonable investigation, there would be a difference between an attorney who conducted-- John Paul Stevens: --Well, he didn't assemble the evidence that's omitted here. That's-- Richard E. Shapiro: --Yes, if he conducted a reasonable investigation and did not assemble this evidence, that would be something different than if counsel conducted... failed to... if counsel conducted a reasonable investigation and made strategic or tactical decisions, and that is because the counsel in the second situation has fulfilled the essential attribute of an attorney. He has conducted the investigation and made decisions predicated on that investigation. Warren E. Burger: --Couldn't a very experienced counsel confronted with that simply analyze it and say that even if we got the man's minister of his church, his Sunday school teacher, his Boy Scout leader, his mother, and his father, it wouldn't do any good in view of the grossness of the evidence, and make that as a tactical decision? Richard E. Shapiro: Well, for one, Your Honor-- Warren E. Burger: Would you say that is ineffective? Richard E. Shapiro: --For one, Your Honor, that is not what this Mr. Tunkey did. And secondly-- Warren E. Burger: Well, I am asking a hypothetical question. Richard E. Shapiro: --Secondly, Your Honor, I would say if he did not conduct any investigation, any reasonable investigation into the evidence that is critical to a capital sentencing decision, then I think he is in no position to make the kinds of judgments that are appropriate for what evidence to present and what evidence not to present. It is a basic failing of counsel that is clear in this Court's Sixth Amendment decisions. Warren E. Burger: Lawyers do this all the time, do they not? When clients say, go do this, go do that, lawyers make tactical decisions based on their own experience and what has been suggested as the value of some undisclosed piece of evidence. Richard E. Shapiro: Well, if they exercise sound professional judgment in making that decision, then, Your Honor, it is not incompetent assistance. Warren E. Burger: How do we know that he didn't do that here? Richard E. Shapiro: Because he said the reason the District Court found as a reason for his failure to conduct an investigation was a sense of hopelessness. Warren E. Burger: No, that's-- Richard E. Shapiro: Not-- Warren E. Burger: --We are right where we started, at least in my hypothetical. If he concludes that it is hopeless and useless to put in that evidence, then you would say that he must do it on pain of being found guilty of ineffective assistance? Richard E. Shapiro: --Your Honor, that is not what Mr. Tunkey did. He failed to conduct an investigation out of a sense of hopelessness. But in his closing argument he tried to make the very points that his investigation would have allowed him to factually support, Finally-- William H. Rehnquist: Mr. Shapiro, at least twice you have said that the Gideon decision says that the defendant must have adequate assistance of counsel. I don't find that language in Gideon. All it says is assistance of counsel. Richard E. Shapiro: --It says, Your Honor, in Gideon, it says that the right to counsel is fundamental to a fair trial. In Cairo versus-- William H. Rehnquist: You said that Gideon referred to the term "adequate assistance of counsel". Richard E. Shapiro: --No, Your Honor. If I said that, I misspoke, but in Cairo versus Sullivan, the Court has made clear that the states are precluded from conducting trials without adequate legal assistance. Speaker: Mr. Shapiro, did you cross petition? Richard E. Shapiro: No, Your Honor. Speaker: And yet you are attacking the standard the Court of Appeals proposed? Richard E. Shapiro: Your Honor, we are saying, stating that the legal standard was incorrect. We agree with the judgment of the Court of Appeals which rejected an outcome determinative standard and adopted the standard that focuses-- Speaker: But you want... But the result of your proposal would be a different judgment. Richard E. Shapiro: --Your Honor, well, I am suggesting that the same judgment-- Speaker: I thought if you wanted a different judgment, you would have to cross petition. Richard E. Shapiro: --No, Your Honor, it wouldn't be a different judgment, because the case would still have to-- Speaker: I thought we would send it back to the Court of Appeals to reassess it. Richard E. Shapiro: --The case would still have to be-- Speaker: The Court of Appeals has now remanded to the District Court. Richard E. Shapiro: --The case would still have to be remanded, Your Honor, under our test because-- Speaker: Not to the District Court. Richard E. Shapiro: --Yes, it would, Your Honor, because there has been no determination of whether the counsel's error was harmless beyond a reasonable doubt, which is the third feature of our test, and which also is the way in which our test accommodates society's interest in finality in the same way and in a much more compelling way it accommodates the Sixth Amendment right and society's interest in finality by focusing on outcome at the appropriate stage in the analysis, when requiring the prosecution to establish that the result would not have been different beyond a... that the error was harmless beyond a reasonable doubt. The state's test does not accommodate at all. What it does is, it establishes that no matter how severely defense counsel impaired the defense, how incompetent counsel was, there is no relief under the Sixth Amendment if the result would not have been different. This is not an accommodation of the Sixth Amendment and the goal of finality. It is an utter disregard for the fundamental nature of the Sixth Amendment. In contrast, the test that we have suggested is rigorous, it has functioned well in the circuits, it has been adopted by virtually... by every circuit except the D. C. circuit as a way of assessing prejudice or focus on counsel's performance, and it has been applied with rigor. There are few cases where counsel's performance has resulted in the reversal of conviction, and there has been no indication in the circuits that they should abandon such a focus on the impairment of the defense because of any problems they are experiencing with the standard. It is a standard that is rigorous, it is workable, it has functioned effectively, and it has accommodated the Sixth Amendment values and the fundamental nature of the right to counsel and finality. The wealth of experience that has been developed in the circuits and the unanimous consensus in the laboratories that have functioned in this area of assessing claims of ineffective assistance of counsel should be embraced wholeheartedly by the Court and not abandoned. Thank you. Warren E. Burger: Do you have anything further counsel? You have two minutes remaining. Carolyn M. Snurkowski: I just have... oh, thank you. Thank you, Your Honor. The state would contend that the assessment here that there was a failure to investigate or produce witnesses, that is a limited review of what investigation is supposed to be. If you look at this record, you will find that Mr. Tunkey did on numerous occasions talk with Mr. Washington with regard to the case. He did discuss, as a matter of fact, at the close of the state's case, at the proceeding, the sentencing proceeding, Mr. Tunkey and Mr. Washington spoke with regard to what evidence should be presented. At that point the court asked, well, are you going to present any evidence? He said, no, Your Honor. And then he proceeded to go through why certain aggravating circumstances were appropriate, why certain mitigating circumstances may or may not be appropriate, through what he had produced in his sentencing brief. And I might add, we need to look not just at what the allegation is, but what the man did, what Mr. Tunkey did in behalf of Mr. Washington with regard to sentencing. The record reflects that he produced a sentencing brief which detailed those aggravating and mitigating circumstances and non-statutory mitigating circumstances which Mr. Tunkey felt were appropriate in his case. As a matter of fact, he went so far to suggest that remorse, the fact that Mr. Washington pled guilty, that he cooperated, those were all non-statutory mitigating factors that the court should consider. He also argued vehemently with regard to what aggravating circumstances should not be applicable, and indeed he, prior to the sentencing proceeding, was able to get a rap sheet of Mr. Washington's excluded. He was also instrumental in getting the trial court to not consider one aggravating circumstance which would have been appropriately applied in this particular case. He convinced them of that. Warren E. Burger: Your time has expired. Carolyn M. Snurkowski: That was it. That was quick. Thank you. Warren E. Burger: Thank you, counsel. The case is submitted.

Warren E. Burger: -- continue. Robert J. Reinstein: Mr. Chief Justice, may it please the Court. As Your Honors will recall before the recess yesterday, we were discussing, whether or not, publication of a subcommittee record by Senator Gravel is protected by the Speech or Debate Clause. We then demonstrated that the clause has always been read broadly to cover all necessary functions of legislators. That the informing function for Congress is precisely just such an essential function of legislators and that the publication of the subcommittee record is a classic example of the exercise of the informing function. There is much historical evidence for this proposition. William H. Rehnquist: Mr. Reinstein. Robert J. Reinstein: Yes, Your Honor. William H. Rehnquist: Is it possible to sustain your position by simply dealing with the privilege that you assert as a testimonial privilege without reaching the question of whether there is a privilege from criminal prosecution itself apart from the testimonial privilege? Robert J. Reinstein: Yes, Your Honor. We are not arguing in this case that anyone is unaccountable except Senator Gravel. We are not arguing that aides are unaccountable or that printers are unaccountable for what they did. We have all along throughout this proceedings, Your Honor, treated this as a matter of testimonial privilege. Our contention is that the Grand Jury cannot inquire into the privileged legislative conduct of Senator Gravel. Now whether anyone can be invited or prosecuted is another matter. If that occurs, the Court would then deal with it. William H. Rehnquist: Is it necessary to sustain your position to hold that Senator Gravel is immune to criminal prosecution? Robert J. Reinstein: Well, Your Honor, if Senator Gravel were engaging in privilege conduct, then it necessarily follows that he himself is immune from criminal prosecution as well as inquiry. It does not necessarily follow that anyone else is, but as the clause is always been construed, the privilege for the legislator himself is both with respect to inquiry and with respect to accountability. Now if for example, Beacon Press were prosecuted, the Court would then have to face the question as English Courts have had to, of whether printers of parliamentary proceedings to assist Senators are immune. The English courts have said, yes, but that question is not presented in this case. Byron R. White: But the privilege you’re asserting would be inquiries related to the testimony -- to the Legislative Act? Robert J. Reinstein: That's correct, Your Honor. Byron R. White: If there were a separate prior act, that the Senator had been engaged in or the aide had been engaged in, that preceded the Legislative Act, but was connected with it, your privilege claim wouldn't reach that I take it? Robert J. Reinstein: No, Your Honor, Our privilege is just with respect to activity which are legislative acts. For example, we do not consider stealing to be a Legislative Act. We do consider the holding of a subcommittee hearing -- Byron R. White: A third person could be asked whether an aide or a Senator improperly removed something or stole something? Robert J. Reinstein: Yes Your Honor. He could be asked whether a Senator stole something. Byron R. White: And -- William O. Douglas: You can't steal anything in the public domain, can you? Robert J. Reinstein: Well, whether or not, it's a difficult question of whether or not it's a crime. I was thinking of something, stealing perhaps a car, for example, when you’re talking about stealing government property, you do have a difficulty of who the government property is -- Byron R. White: That wouldn't be a question to -- William O. Douglas: But these are loaded questions. I mean, you say yes then you’re stuck with the answer. Robert J. Reinstein: Well, no Your Honor, there’s no claim here, that's Senator Gravel or anybody working for him stole the Pentagon Papers. William J. Brennan, Jr.: Well, isn't there an issue of the source, either the aide or the Senator? Where did that come from? Isn't that issue in this case? Robert J. Reinstein: Your Honor, the first time we saw that issue in this case was in the Solicitor General’s reply -- William J. Brennan, Jr.: Suppose it is, and the inquiry goes to that they were improperly obtained before the aide joined the Senator's subcommittee? Robert J. Reinstein: Before this – the aide joined the -- William J. Brennan, Jr.: That's right, before. Robert J. Reinstein: Yes. William J. Brennan, Jr.: Would there be any doubt in your mind that that inquiry could go forward? Robert J. Reinstein: No, that inquiry could go forward. William J. Brennan, Jr.: Even though the papers are related to or their use at least, related to the legislative function? Robert J. Reinstein: That's correct. Now the acquisition of the papers by Senator Gravel, we consider to be, excuse me, another story, unless he participated in a theft, but when one is talking about the mere receipt of the information by a legislator, that would fall within the category of legislative acts, but we have never said, that Dr. Rodberg cannot be inquired into for what he did before he joined Senator Gravel’s staff. In fact -- Byron R. White: Or what he did while he was on the staff, but wasn't related to a Legislative Act? Robert J. Reinstein: That's precisely correct, Your Honor. The District Court found as a fact that the purpose of the inquiry, Dr. Rodberg, was to ask him about the preparation for the subcommittee hearing, the holding of the hearing and the publication of the documents, the subcommittee records. That finding was not challenged by the Government on appeal and it wasn't for the very simple reason that Senator Gravel possessed the documents, many days before he met or even heard of Dr. Leonard Rodberg. Dr. Rodberg was hired especially well after the Senator received -- William J. Brennan, Jr.: I gather, you don't question either Mr. Reinstein, that if we had an act which related -- which was not legislative because it was in the approach side of the executive department, someone in the executive department, you don't say that that comes within the cover of the Speech or Debate Clause? Robert J. Reinstein: No, Your Honor, we do not, that was made clear in the Johnson case. Interceding before executive agencies is not a Legislative Act because the legislator is going outside of his domain and he is interfering into conduct which is vested by law and by the Constitution of the Court and branches of the executive and the judicial entities. William O. Douglas: (Inaudible) First Amendment -- Robert J. Reinstein: I beg your pardon, Your Honor. William O. Douglas: Then you would be squarely in the First Amendment? Robert J. Reinstein: There might be some First Amendment cases, but they would not be within the privilege. Byron R. White: Well, is your claim that indirectly, in with respect to the questions that maybe asked to Dr. Rodberg, is your claim that he may not be asked questions that he himself is immune under the Speech and Debate Clause or is it that, it's necessary to protect him, to protect -- to forbid the questions in order to vindicate Senator Gravel’s Speech and Debate privilege? Robert J. Reinstein: Mr. Justice White, we do not think that Dr. Rodberg has any independent privilege or anyone else in this case. We think the privilege is Senator Gravel’s and in order to forbid inquiry into Senator Gravel’s legislative acts, we think it cannot be done through the interrogation of those persons who assisted him in the performance of those legislative acts. Just like the Attorney Client privilege, that belongs to your client, no one would say, it's the attorney’s privilege, but it can be defeated by questioning the attorney. The (Inaudible) privilege is exactly the same. Warren E. Burger: How can you determine the scope of the privilege until you know what question is to be put. I am speaking now with reference to the assistant, the aide, the staff member? Robert J. Reinstein: Well as I said, Mr. Chief Justice there was a finding by Judge Garrity and Judge Garrity based that finding on some evidence was introduced by Dr. Rodberg. Our allegation is the fact that they were not denied by the Government, not only that but the Government went ahead and said, we will make these allegations the basis of our legal assumptions and refused to deny it. We did offer the government an opportunity to specify that the inquiry would go into non-legislative activities. We asked the government to make such a specification. The government declined to do so and instead the government just proceeded in that way. Warren E. Burger: Well but, the point, I am raising to you is this, may it not be that many questions might be put to him that would be concededly beyond the privilege and that he would have no objection to answering? Robert J. Reinstein: Yes, thats why we've asked for protective orders, only prohibiting those questions which are within the privilege. Warren E. Burger: Well, then someone’s got to define the privilege of course? Robert J. Reinstein: Yes, Your Honor, that's why we’re arguing the publication case here. Warren E. Burger: Yes, but that definition has got to be decided with reference to each question, isn't that not true? Robert J. Reinstein: Well, Your Honor, a protective order which says that, if Dr. Rodberg may not be asked questions about preparation for the hearing and the holding of the hearing and the publication of the record which seem to me be pretty easily enforceable. We did ask for a specification of questions in advance because of the kind of enforcement problems that we have, because Senator Gravel isn't there. But we were persuaded by the District Court and by the Court of Appeals, that a protective order would be adequate. The dilemma of course is, that it is Senator Gravel’s privilege and he must have some mechanism of enforcing it. He can't rely on other people to make a decision to perhaps risk contempt in order to vindicate his own privilege. Now the specification technique of -- to which I am alluding has been used by the Government before in privilege cases, such as husband-wife privilege case and as a matter of fact there was a fairly specific specification in the Caldwell case of what kinds of questions were going to be asked to Mr. Caldwell, but we think that a general protective order dealing with the acquisition by Senator Gravel on the receipt, the preparation for the subcommittee hearing, the holding and publication is cleanly sufficient. Harry A. Blackmun: Mr. Reinstein, I was interested in your comment a little while ago that the Senator apparently hadn't known Dr. Rodberg to this day. Yesterday, I asked Senator Ervin a little about the acquisition the Dr. and the staff. Who is he, is he a PhD? Robert J. Reinstein: Yes, Your Honor, he is a doctor. Harry A. Blackmun: Do you feel inclined to expand inclined to expand a little bit on his sudden accusation to the Gravel staff? Robert J. Reinstein: Well, Your Honor, I don't think it will be proper to go into it very deeply. I will say that Dr. Rodberg's credentials are set out in an amicus brief, which he has filed. Senator Gravel was interested in finding someone who had specialty in Foreign relations. This is not at all unusual to hire someone specially. It doesn't make much sense, we don't think to hire an aide six months before you need him. Senator Gravel looked very hard for someone with Dr. Rodberg's credentials and he hired him at that time. All of this occurred after Senator Gravel obtained the material. I'm very reluctant to go into it any deeper because we are in very delicate position that apparently the Grand Jury would like to find out this information and we consider a lot of privilege. Now what the Solicitor General is suggesting -- Harry A. Blackmun: Do you concede, however, that he is not on the payroll? Robert J. Reinstein: Your Honor, I would -- there is no evidence in the record that Dr. Rodberg is not on the payroll, and I would prefer not to get into the financial arrangements which have been made. There was an affidavit by the Sergeant-at-Arms who is the official record keeper of the Senate, that Dr. Rodberg is one of the staff of Senator Gravel. Senator Gravel's staff by the way is not very large. I think he only has six aides. Thurgood Marshall: Well, is it your position that it makes no difference whether he is on the government payroll or not? Robert J. Reinstein: That's right, Your Honor. We do not think that the Grand Jury can inquire into the Privilege Acts. The Congress in turn interrogating people who assisted him, whether they happen to be employees of his or not. There is a particular -- Thurgood Marshall: It doesn't matter -- it doesn't matter whether he is a employee or not, it doesn't matter whether he is paid or not, does it? Robert J. Reinstein: No, Your Honor. If the Congressman asks someone for advice on how to vote on pending legislation, the position of the Solicitor General is that this person can be subpoenaed before the Grand Jury and asked what advice did you give to the Senator and what did the Senator tell you. We think that will be a blatant violation of separation of powers and of the Speech or Debate Clause. Potter Stewart: Well, you don't need to go that far in this case because as I understand it at least, it -- there's no question but what -- he was an aide to the Senator? Robert J. Reinstein: That's right, but we're -- Potter Stewart: But you don't need to go as so far as to say that if he asks the President of a big corporation how should I vote on this and maybe in connection with the advice gets $10000 along with it that, that's under the Speech and Debate Clause. You don't need to go that far at all. There's -- there's no issue as whether or not he was an aide as I understand it, am I mistaken about that? Robert J. Reinstein: No, Your Honor that's correct, there's no issue on that. However, there is also a proposed interrogation of people who assisted the Senator in printing the record. Those people historically have been considered very important in assisting Senators and Congressmen in performing their informing functions. We don't think that they could be interrogated either. Your Honor is quite correct in the hypothetical that you pose that, that will be very different, but that's because barrage undetected by the Clause, so it'll be a reason for that. Your Honor, I see my time is up. Warren E. Burger: Mr. Solicitor General. Erwin N. Griswold: May it please the Court. First in supplementing the response to Mr. Justice Blackmun's question, I think it may be said that, Dr. Rodberg is the physicist. In my view this case does not involve any fair application of the Speech or Debate Clause. The case has now been argued before the Court for nearly an hour and no one has yet referred to the text of the Speech or Debate Clause. It appears at the bottom of page 2 and the top of page 3, of the government's principal brief here. Of course, I know it is familiar to the Court, although it has been involved in a surprisingly small number of decisions of this Court. But it seems to me, relevant and appropriate, that before proceeding further with this case, we get back to the bedrock. What does the Constitution say? The Senators and Representatives, nobody else, the Senators and Representatives shall receive compensation and they shall in all cases, except Treason, Felony and Breach of the Peace, which covers almost everything, be privileged from arrest during their attendance at the session of their respective Houses, no effort to give a sweeping immunity to Congressman or Senators, and in going to and returning from the same, and for any speech or debate in either House, they shall not be questioned in any other place. Now there are three groups of words of limitation in that provision. The Senators and Representatives, not the Senators and Representatives and those associated with him and those who assist him and members of their family and staff and servants as it used to be in England, and which they we're trying to get away from, and speech or debate. Now speech or debate is not everything they say, everything they do, and finally in either House. It is suggested that our argument here, and I must confess I have a little feeling like, arguing that no law means no law, but it is suggested that, our reference to stylistic precision which is the phrase we use in our brief. This is a case where it seems to me, that the language was very carefully written and very carefully intended. It is suggested that, this is simply the language of the committee on style. They didn't mean any such limitations and that that there is evidence by the language which had been used by the committee on detail, which was the only place in the convention where the matter was considered. There surprisingly there is very little available in the history of the convention, but let's look at the language which had been used by the committee on detail. This appears at the bottom of page 92 of the big red brief, Senator Gravel's main brief. Now the committee on detail and which is what the convention voted for wrote, freedom of speech and debate in the legislature. Well now who engages in speech or debate in the legislature, no one but Senators and Representatives. Freedom of speech and debate in the legislature shall not be impeached or questioned in any court or place, out of the legislature. And I would suggest that there is no significant difference in meaning, between the phraseology of the committee on detail and that of the committee on style. The committee on style did make it a little more elegant, but it did not limit it beyond what had been adopted before. Now the significant fact in this case with respect to this language, is that the Senator Gravel is not being questioned by anybody in any place. The Constitution and the privilege granted by the Constitution to Senators and representatives is being fully compelled with. There is an analysis of this clause, which as far as I know does not appear as yet in any of the opinions of this Court, but which I think clarifies it's meaning and application, and on the basis of which the privilege itself, and the several cases which have been decided about it fall very well in the place. Questioned, is the keyword at the end of this constitutional provision, and questioned may be read in two senses. First, as I have just indicated with respect to questioning Senator Gravel. Perfectly clear that Senator Gravel cannot be questioned about any speech or debate which he has made. It's not necessary here to determine the limits of speech or debate, because Senator Gravel is not being questioned. No subpoena has been issued against Senator Gravel. There is no suggestion that he is being questioned, but the word question can also be read in another sense, that is of being subject to charges in which reliance is put on evidence of speeches or debates by the member. But Senator Gravel is not being questioned in this sense. He has not been charged with anything. He is not on trial, there is not a question of the use of evidence of other persons with respect to a speech or debate being directed against him. He has not been indicted, he has not been summoned, he is not subject to charges, and I would suggest that when those conditions exists, the Speech or Debate Clause is fully satisfied. This case is not like the Johnson case, in this Court. The Johnson case was an indictment of a Congressman, based upon facts arising out of a speech which he had made in the house of representatives. And the Court held that evidence with respect to that speech could not be introduced in the trial against Johnson without violating the Speech or Debate Clause. It was not merely that he could not be someone than required to testify, but he could not be required to answer a charge based upon the speech which he had given. That is not involved in this case. Senator Gravel had not been summoned and required to testify. He is not required to answer a charge based upon the speech, but this case is like the Johnson case in the Court of Appeals for the Fourth Circuit before it got here. You will recall that there were two Congressman who were indicted, and two private individuals, and they were all indicted for conspiracy, and for engaging in certain acts or in aiding or abetting those acts. And it is true that the Court referred on page 176, in the Johnson opinion to the fact that, the constitutional infirmity infecting this prosecution is not merely a matter of the introduction of inadmissible evidence and Senator Gravel in his brief says that that's a decision that this evidence is inadmissible, and therefore can't be acquired. Well, we agree that it is inadmissible against Senator Gravel, if there ever should be any sort of a charge against Senator Gravel. But the Johnson case in the Fourth Circuit, involved two persons who were not Congressmen and their convictions were sustained in the variable opinion of Chief Judge Soboloff. I've read it again a few days ago, and it is a remarkably fine opinion and this is the language which is used with respect to them at page 193 of 337 F2nd. Count one of the indictment is unconstitutional, as applied to defendant Johnson, but as none of the privileges of Article 1, Section 6, pertain to the defendants who are not members of Congress, their attack on the first count unlike Jonson's is not sustained. Now it is true that that this Court did not review that decision, and expressly left open its propriety and the decision in the Johnson case itself which involved only Congressman Johnson, but I submit that the decision reached by the Fourth Circuit Court of Appeals in Chief judge Siboloff's opinion is a sound construction. Potter Stewart: That the case involved a conspiracy, about to give and accept a bribe, didn't it? Erwin N. Griswold: It involved both the conspiracy to give and accept -- well, it involved both the conspiracy and the substantive offense. Potter Stewart: Of bribery? Erwin N. Griswold: There were five or six accounts of the substantive offense of -- as I record Mr. Justice , conflict of interest rather than of bribing (Voice Overlap) and appearing before the executive branch of the government. As you will recall, the case went back to the trial court. Congressman Johnson was convicted without the use of the evidence of the speech. That conviction was affirmed by the Fourth Circuit Court of Appeals and this Court denied certiorari. It is also true that the two other persons in the Johnson case were not aides. They were private citizens, although they were actually aiding Congressman Johnson and I suppose he could have put his finger down, somebody and said you're now my aides and since no payroll provision was involved, they could have been the same, but there is no suggestion that they were nevertheless, I repeat my suggestion for the Court's consideration that Article 1, Section 6 does not provide any protection to anyone except Senators and Representatives. It does not provide any protection to aides. I know of no decision of this Court which has held that aides or third persons are entitled to any benefits under the Speech and Debates Clause. Perfectly plain that Congressmen and Senators are entitled to great benefits under the Speech and Debate Clause and there is nothing in this record which in any way impairs the privilege which is given to Senator Gravel by the Speech or Debate Clause. He is not being subject to question himself. He is not being required to answer to charges based upon evidence relating to a Speech or Debate. Potter Stewart: How about executive privilege which unlikely Article 1, Section 6 is only to be -- is only to be found in the implicit provisions of the Constitution? Surely that protects more than the President, the Vice- President, doesn't it? Erwin N. Griswold: In the first place the limits of the executive privilege are not easy to state. As far as I know rarely have ever been considered by this Court and as far as I know have never, it has never been suggested that they would prevent the indictment of an executive aide for the commission of a crime or that they would prevent his being subjected to inquiry by a grand jury. Potter Stewart: As to what the aide told the President or the Vice-president? Erwin N. Griswold: There might be some limitation on the nature of the questions that could be asked but there is no -- I don't know of basis upon which it could be said that he could simply refuse to appear before a grand jury because he was an executive. Potter Stewart: It seems to me that your argument in a way boils down to the proposition that a privilege that is explicitly recognized and protected by the Constitution is narrower privilege than one that is not such as executive privilege? Erwin N. Griswold: There is I think, Mr. Justice another privilege analogous to the executive privilege, not based on Article 1, Section 6 but simply based on the same principles as those involved by this -- applied by this Court in Barr against Matteo where you will recall an employee, an executive employee having no direct connection with the President was held privileged from liability for slanderous remarks which he included in a letter which he wrote in good faith in the course of business. And I would have no doubt that aides to Congressmen and Senators are subject to the same kind of privilege with respect to civil liability which was involved in Barr against Matteo. I think there may well be limits as to the extent to which an aide can be questioned with respect to -- for example, did you write speech, matters directly related to Speech or Debate. I do not know the extent of those limits and I don't think that they are involved in this case. William J. Brennan, Jr.: Where -- from where -- what do they derive from Mr. Solicitor General, whether -- what -- from what did those limitations derive? Erwin N. Griswold: They would have to be on a common law basis of some kind derived out of -- well either common law or derived out of conceptions of separation of powers the limits of which are far clear to me. William O. Douglas: What (Voice Overlap)) that the secretary and Congressman Johnson would have testified to of these things putting (Inaudible) Erwin N. Griswold: I believe that is involved in some of these cases of prosecutions of Congressmen and Senators and this is never been -- I hate to say, it's never been suggested, but it is never been held that such evidence is not admissible in a criminal charge against a Congressman or Senator. William O. Douglas: Well we said in the Johnson case that any person who helped the legislator in respect to Speech and Debate cannot be inquired if the object to attack legislator's motives speaking -- Erwin N. Griswold: Cannot be inquired with respect to a charge against the Congressman or Senator. I don't think that it is -- William O. Douglas: Well if you're a prosecutor it depends how you're making a case, get the staff of the Senator or the Congressman, put them on the stand and they know everything goes on in office? Erwin N. Griswold: But there is no suggestion here that there is any effort to make a charge against Senator Gravel. William O. Douglas: Well we don't know? Erwin N. Griswold: It is perfectly plain -- William O. Douglas: (Inaudible) session, is it not? Erwin N. Griswold: If there is any effort to make a charge against Senator Gravel, he has complete protection under Article 1, Section 6. William O. Douglas: Even though they get the testimony from -- Erwin N. Griswold: Even though they get the testimony from any place, Senator Gravel cannot be required to -- cannot be questioned in any other place with respect to anything which is fairly a Speech or Debate. William O. Douglas: Why does this group that he works with, have immunity? Erwin N. Griswold: But there may be many other people involved in this. This is an effort through a grand jury to -- William O. Douglas: We're just looking at one now and why isn't he inside of it? Erwin N. Griswold: Because he is not a Congressman or a Senator. William O. Douglas: But they finally get at the -- Erwin N. Griswold: Mr. Justice I suggest that is a pure inference on which there is no basis. There are many other people involved in -- William O. Douglas: We hear in the brief in the Senate yesterday that the, there may be disciplinary actions against the Senator? Erwin N. Griswold: That's entirely up to the Senate. William O. Douglas: I know, what I mean to say is to say Rodberg is non-actor and this is --- Erwin N. Griswold: So far as the Executive Branch of the government -- William O. Douglas: (Voice Overlap) other things -- Erwin N. Griswold: So far as the Executive Branch of the government is concerned, there is Senator Gravel is not being required to answer in any other place with respect to a Speech or Debate. He is not himself subject to questions which I think is one aspect of the -- shall not be questioned in any other place and he is not himself the subject of charges. Byron R. White: Mr. Solicitor General, do you object to the limitation that the Court of Appeals put on the witnesses not to testify or not -- they could not be forced to testify about the purposes and motives of the Senator? Erwin N. Griswold: Yes Mr. Justice we -- I do. Byron R. White: If you aren't interested in ever moving against the Senator, why would you -- why would anybody want to inquire about the Senator's motives and purposes? Erwin N. Griswold: Motives, I don't know. The -- Byron R. White: I don't know, what that word means? Erwin N. Griswold: What I think-- Byron R. White: What that word means? Erwin N. Griswold: Mr. Justice is that there should not be any limitation on the inquiry which can be made of Dr. Rodberg or of the Representatives of the MIT press and the Beacon Press. Byron R. White: But what about possible damage would there be to the government if they couldn't ask witnesses about the motives and purposes of senatorial conduct if the government absolutely concedes is immune? Erwin N. Griswold: Mr. Justice it could be in a wholly different case. The motive was to get revenge against somebody else. Having found that the motive was to get revenge against somebody else that might lead to another witness which would provide evidence as to what was being done. The motive may be relevant in the process of investigating a criminal charge. Byron R. White: Against somebody else? Erwin N. Griswold: Against somebody else and this is a case where it seems to me and in fact there is something rather whimsical about this whole situation. The government is charged that it should keep its own house in order, it should protect the privacy of its papers. If the papers are stolen, they can be credit and nothing can be done about it. Then the government seeks to undertake a regular organized, centuries old proceedings through the Grand Jury and the Grand Jury is made up of citizens to inquire into the source of what may have been a crime. The receipt of stolen property, the violation of undertakings of one kind or another. I am not suggesting that Senator Gravel did this. I am suggesting that it is entirely appropriate to inquire into the question whether any of these offenses which Congress has laid down by law have been committed and that there is no reason why Dr. Rodberg or anyone else should have a privilege to refuse to respond to questions relating to those matters which may lead to charges against other persons than Senator Gravel. There might even charges against Dr. Rodberg or against the other people. Of course Dr. Rodberg has the privilege against self incrimination which he can exercise any time he thinks it is appropriate. But I know no basis upon which it can be said that they cannot even be asked about this because it collaterally relates to something done by a Senator when there is no suggestion then any charge can be brought against the Senator or that he can be required to answer with respect to it in any other place. William H. Rehnquist: Mr. Solicitor General -- Thurgood Marshall: Mr. Solicitor General, am I correct that you wouldn't be able to question the Senator as to where he got the papers from? Erwin N. Griswold: Well, Mr. Justice we are not able to question the Senator about anything insofar as it relates to speech or debate. Thurgood Marshall: Well, this was related you agree to speech and debate? Erwin N. Griswold: I am not contending to the contrary, it is a little tenuous. Thurgood Marshall: That's good enough for me, but you say that you could ask the secretary where you got them from? Erwin N. Griswold: Yes Mr. Justice, yes. Thurgood Marshall: That's your position? Erwin N. Griswold: Let me take this case. This is an extreme case, but perhaps to tests it. Suppose there is a close debate, a close vote coming up in the Senate. The best estimates are that it will be 48, 47, but you can't be quite sure. And the Senator goes to his aide and he says, you go out and kidnap Senator X and you treat him kindly and take care of him, but just don't let him come to the Senate vote. Now, this is obviously a legislative matter directly related to a legislation and the aide goes out conducts the detention of the member whose vote is not wanted. Now, it seems to me inconceivable that it can be said that the aide is not subject to inquiry by a grand jury as to what he did and as to why he did it. Thurgood Marshall: Well, I think we misunderstood each other. I didn't infer any criminal action at all. Erwin N. Griswold: I am sorry Mr. Justice? Thurgood Marshall: I didn't infer any criminal acts at all? Erwin N. Griswold: I know but I am suggesting, I am suggesting a criminal action. Thurgood Marshall: Well, kidnapping is criminal, isn't it? Erwin N. Griswold: Yes, I say I am suggesting a criminal action. I am saying its a criminal action, but the language makes no differentiation between criminal or any other kinds of action. Thurgood Marshall: Well, then let me put it this way. Erwin N. Griswold: And if you would -- Thurgood Marshall: You can ask a Senator where you got the material you used in your speech? Erwin N. Griswold: Yes Mr. Justice. Thurgood Marshall: You can -- Erwin N. Griswold: Yes. Thurgood Marshall: -- you can ask his secretary? Erwin N. Griswold: Yes Mr. Justice. No, I can't the Senator, I am sorry. You can't ask the Senator. The Senator cannot be questioned in any other place, but you could ask his aide where he got the material. Thurgood Marshall: (Inaudible) Erwin N. Griswold: That's -- Thurgood Marshall: (Inaudible) exact same -- Erwin N. Griswold: You could ask him exact same question because the privilege to Speech and Debate Clause does not protect anyone except Senator and Representatives and they shall not be questioned in any other place. William H. Rehnquist: Mr. Solicitor General I think the executive branch over a period of time and as I understand has taken the position that there is executive privilege for the President's top aides in order that he may have the benefit of their disinterested advice, they can't be questioned as to advice they give him. Would you concede that Mr. Rodberg as an aide would have at least that degree of privilege? Erwin N. Griswold: Mr. Justice, I think he would but not under Article 1, Section 6. William H. Rehnquist: But as to some other principles -- Erwin N. Griswold: Under some implication arising out of the separation of powers I would think he would have some kind of privilege there the limits of which are not clear to me and which of course I think would vanish the moment there was a charge of crime with respect to and I suspect the same would be true with respect to -- Potter Stewart: Back to what, now the moment there was a charge of crime with respect to what? Erwin N. Griswold: Even the speech you debate. If for example the question to be put to the aide is did you deliver $5000 from X corporation to the Senator for your speech, I think its the -- Potter Stewart: Well that's different, but how about just a charge of crime against John Smith, the President of Smith Corporation or deal confined to a charge of crime against the President or the Vice-president or the aide himself? Erwin N. Griswold: I would make it crime of any sort. Potter Stewart: Of any sort by any one? Erwin N. Griswold: That's right. Potter Stewart: Then the executive privilege vanishes? Erwin N. Griswold: It is the function of the Grand Jury to inquire into crime. Potter Stewart: I think the assertion over the years has been little broader than that, hasn't it of executive privilege? Erwin N. Griswold: I don't know of any where it has been asserted to arise against a substantial charge of crime and let me point out that we are not without overtones of crime here. There may well be receipt of stolen property and other charges which it is appropriate for the executive department, not merely appropriate but it's duty to inquire into. The speech of debate was I suggest again has no application to non members by it's terms and it has never been applied to non-members by this Court, never. I think -- William O. Douglas: Then really it amounts to (Inaudible) because as a practical matter you can visit, prepare the case through the staff of the Senator or Congressmen? Erwin N. Griswold: You can, but you can't charge the Senator or Congressman to it amounts to a great deal. The Senator or Congressman is immune from either being himself questioned or from being charged with respect to his speech of debate. That's what this Court decided in the Johnson case and we fully accept that and I don't regard that as of no consequence. The Senators and Representative are immune from prosecution with respect to there speeches or debate. They are immune from several liability with respect to their speeches or debate. They can't even be required to respond to question with respect to their speeches and debates. That is a great and historic privilege which ought to be maintained, which I fully support, but which does not extend to any other persons than Senators and Representatives. Warren E. Burger: Mr. Solicitor General under the Johnson case, would it be theoretically at least true that if an indictment charged a member of either House with some crime related to making the speech, making the speech for a bribe for example, that the member could if he wanted to take the risk simply refuse to appear, refuse to answer and let the case go against him by default and then stand on the privilege? Erwin N. Griswold: Well,Mr. Justice in Powell and McCormack, there is a footnote in the opinion of the Court which says that the member is required to answer and the raise the privilege. And I should think if I were advising a Congressmen or Senator that I would suggest that he get counsel and that the proper representations be made to the Court. Warren E. Burger: That's why I put in the term feel theoretically he could even refuse to answer if you take the literal language of the Speech or Debate Clause? Erwin N. Griswold: Yes if you take the literal language he could and I suspect that if you add a strong enough, clear enough case that a Congressman or a Senator could be successful in doing that, but I wonder a little why he would want to when all he has to do is to appear in the Court through counsel and do raise the privilege, citing the Johnson case. William O. Douglas: At the start of the argument, you suggested that we read the Article 1, Section 6. In following your argument that I'm wondered if perhaps you would have (Inaudible) but it denies because it doesn't talk about indictment, it says shall not be questioned? Erwin N. Griswold: I agree Mr. Justice. William O. Douglas: It's much broader than -- Erwin N. Griswold: And I have tried to say there are two ways in which he can be questioned. One is to sit on the witness stand and be asked questions himself and he can't do that. And the other is that he be required to answer in some way, with respect to what he has done. Now the most natural way for that, would be by way of indictment or a criminal charge, and Article 1, Section 6 protects him from that. But it also protects him against civil liability for slander or anything else, and it would protect him from being required to appear as a witness in somebody else's case to testify as to what he said in a speech or debate. He is himself protected in full against being questioned in any other place, but I see no basis for saying that any one else is protected by Article 1, Section 6. William O. Douglas: But if you draw the lines of, say that the staff cannot be summoned then you're protecting him? Erwin N. Griswold: And you're protecting, you're protecting a lot of other people far beyond the -- William O. Douglas: May be so -- Erwin N. Griswold: -- requirement of the constitution and -- William O. Douglas: I think it's not indictment, part of this is just (Inaudible) and -- Erwin N. Griswold: Yes, Mr. Justice and of course, a Congressman, Senator runs that risk from the press and from the constituents who may have write libelous things about him. As long as Senator Gravel is not himself required to answer in any place, I think that the privilege is fully vindicated. I'm not making -- there is a passage in Jefferson's Manual which is the great worth in this area written by the man who one of great founders of, he was not at the constitutional convention and the manual is the foundation of all of the procedure in the House and Senate, this appears on page 24 of our brief. It was probably from this view of the encroaching character of privilege that the framers of the Constitution and they have cared to provide that the law shall bind equally on all and especially that those who make them shall not exempt themselves from their operation, have only privilege Senators and Representatives themselves from the single act of arrest in all cases, except Treason, Felony and Breach of the Peace during their attendance at the session of their respective Houses, and in going to and returning from the same and from being questioned in any other place for any speech or debate in the House. And I would like to suggest, that the decisions of this Court with surprising consistency support our position that the Speech or Debate Clause, provides no privilege to aides. Perhaps the first case involving this matter is Kilbourn against Thompson, which was a suit against the speaker of the House and against the sergeant-at-arms of the House, and the House had by vote decided that Thompson was in contempt and had ordered him to be arrested and the Speaker issued a warrant directed to the sergeant-at-arms to arrest Thompson. Thompson got habeas corpus and he sued the Speaker and the sergeant-at-arms and this Court held that the suit must be dismissed as to the Speaker, he was protected by the Speech or Debate clause and it held with the suit could be maintained against Thompson. Although he was not just a aide to a Congressman or a Senator, but was one of the officers of the Senate. He was not protected by Article 1, Section 6 and we know that resulted in a judgment for $20000 in favor of the plaintiff and which was eventually paid out of the Senate's funds. And then we have more recently, the case of Dombrowski against Eastland, which was a suit against a Senator and against the chief counsel of his committee. And the Court held that the suit could not be maintained against the Senator at least facts alleged on that case, but he held that it could be maintained against the chief counsel of the committee and the case went back for a trial against the chief counsel. And more recently we have Powell against McCormack, which was Congressman Powell's suit against members of the House of Representatives, the Speaker and other members, and against the doorkeeper and other officers of the House of Representatives. And the Court held that the speaker and the other members could not be sued, they were protected by Article 1, Section 6 of the Constitution, but it also held that the officers of the House of Representatives who were only doing what they were told, were subject to being questioned in the courts and were the basis for a declaratory judgment which this Court send the case back to the lower court to consider and to enter. Byron R. White: Mr. Solicitor General, positing that or assuming that publication of documents in a committee hearing would be criminal except for the fact that it was in a committee hearing and that the Senator or Congressman himself couldn't be prosecuted for that act of putting the secret documents in a committee hearing record. You would say that the aides who aided and abetted him and who participated in that act could be prosecuted for that? Erwin N. Griswold: Yes, Mr. Justice. Byron R. White: Yes. Erwin N. Griswold: If the sergeant-at-arms of the Senate who obeys the Speaker's warrant can be sued, if they doorkeeper who didn't pay Senator Powell, Congressman Powell can be sued, I know of no reason why an aide is not subject to the full responsibility of the criminal law. Warren E. Burger: Mr. Solicitor General -- finish. Erwin N. Griswold: And if commits a crime, I know of no reason why he cannot be prosecuted for it and in particular, I know of no reason why he cannot be questioned about it, unless he chooses to raise the Fifth Amendment which is available to anyone. Warren E. Burger: In Dombrowski against Eastland, who was the particular aide with that this Court said had no immunity? Erwin N. Griswold: He was the chief counsel of this subcommittee. Warren E. Burger: He was the legal advisor to the chairman and of the Judiciary Committee and to the entire Judiciary Committee, was he not? Erwin N. Griswold: Yes, Mr. Justice. Warren E. Burger: And then this Court held he had no immunity, is that right? Erwin N. Griswold: He was the duly appointed long time established and properly paid. The chief counsel of the committee which was involved in the -- Potter Stewart: Mr. Sourwine wasn't it -- Erwin N. Griswold: Mr. Sourwine. Potter Stewart: I thought was the internal security committee -- Erwin N. Griswold: Yes. Potter Stewart: Not the judiciary committee? William O. Douglas: He wasn't questioned though was he? This was -- the question was alleged (Inaudible) Erwin N. Griswold: He was being questioned to the extent of being liable criminally in the courts of Louisiana and civilly in the Federal courts. Potter Stewart: And it involved a constitutional claim I mean part of claims. Erwin N. Griswold: Yes. Potter Stewart: Based of the plaintiffs -- a person's constitutional -- Erwin N. Griswold: Yes, that I know no any reason why that rises higher than -- Potter Stewart: And so of course to the Powell case? Erwin N. Griswold: Then the duty of the Executive to enforce law. Warren E. Burger: And when Mr. Sourwine got to trial day in those cases, then he would be required to take the stand and to answer questions, would he not under the civil case? Erwin N. Griswold: Yes. Yes, Mr. Justice. Byron R. White: And to pay a judgment in particular that there was one recovery? Erwin N. Griswold: There was -- we know that there was a recovery in Kilbourn and Thompson. I have tried to find out what actually happened in Dombrowski and Eastland and apparently it went back to the lower Courts and was finally dismissed for want of prosecution. But I don't think that effects the fact that Mr. Sourwine was held to liable if it had been pressed and that he would have been required to answer. After all what's involves here, is an effort to inquire into the question whether the crime has been committed. If a crime has been committed by a aide or by a third person and it may well not be as a result of the investigation that it will be concluded that the aide committed any crime. It may well be that his evidence will lead to someone else who may have committed a crime and that there may be appropriate basis for bringing charges against some third person. And I repeat, that there is nothing in the Speech or Debate Clause or in any decision of this Court which prevents the inquiry of aides or third persons as to whether a crime has been committed. If there is evidence that a Senator has committed a crime not connected with Speech or Debate, he can be prosecuted. It was so decided in the Johnson case and decided here in the Johnson case because the Court made it plain that the case should go back and that Senator Johnson could be tried for a crime committed while he was Congressman. If there is evidence that a Senator has committed a crime which is adequately connected with Speech or Debate, he cannot be prosecuted, he can only be subject to the discipline of the Senator. Byron R. White: But I suppose if Senator in preparation for his Speech or Debate committed a crime such as -- Erwin N. Griswold: Well, that's why I (Voice Overlap)Mr. Justice which is adequately connected with Speech or Debate. I don't know what the limits are. I think they ought to be rather broad. If -- suppose a Senator by his own hands goes out and steals a material which he when uses in a Speech or Debate, I don't know whether he would be exempt from prosecution for the theft. It is my position that if he directs his aide to go out and steal material for use in the Speech or Debate that the aide is subject to prosecution, that the aide has no privilege under the section -- Article 1, Section 6 and that the Senator cannot extend an umbrella over him because the Senator has a privilege. With respect to the Senator we make no other contention that he can be subject only to the discipline of the Senate with respect to a matter which is adequately connected with Speech or Debate, but there is a nothing in the Speech or Debate Clause which protects either an aide or a third person from prosecution for any crime he may have committed. William O. Douglas: I have just re-read Dombrowski and there is not a word in there Mr. Solicitor General that indicates that Sourwine could be put on the stand and questioned respecting Senator Eastland's motives and purposes or implications or complications of project? Erwin N. Griswold: That he could be? William O. Douglas: There is not a word that can be -- Erwin N. Griswold: No I suggest -- no I don't say there is -- William O. Douglas: This was a shell of a case and we sent it back to the trial? Erwin N. Griswold: The decision however is that Mr. Dombrowski can be sued. I agree there is no decision there as to the extent to which he can be questioned but -- William O. Douglas: I think this is a first time when we had that? Erwin N. Griswold: As far as I know this is the first time that you actually had that question. As I was saying, we think that there is nothing in the Speech or Debate Clause which protects either an aide or an third person from prosecution for any crime he may have committed. As I have already said an aide or a third person is entitled to the privilege against self incrimination, but such a person, a non member is not entitled to any privilege under the Speech or Debate Clause. Potter Stewart: Tenney against Brandhove was a state case, wasn't it? It came from State Legislation? Erwin N. Griswold: Tenney against Brandhove involved a committee of the California Legislation. Potter Stewart: Therefore was not covered by the Speech and Debate Clause of the Constitution. What do you suppose the constitutional basis to that decision was? Erwin N. Griswold: I don't know that it is a constitutional basis Mr. Justice. I think that analytically it is a construction of the Civil Rights Act of 1871, under which the suit was brought and it was held that the held Civil Rights Act should not be construed to provide for a liability of a member of a State Legislature. Now, I have no doubt that in the background to that question of construction were some constitutional considerations, derived out of no particular clause of any Constitution but derived it seems to me I can say out of constitutional history. The State Legislatures just like Congress are the lineal decedents of the British Parliament. There were Centuries of controversy and the struggle between Parliament and the Crown with respect to the privileges of the two Houses. At various times, particularly the 18th Century, the privileges got really out of hand. The history shows that members sold the right to be a servant of a member in order that the servant would not be subject to suit in civil cases. That was abolishment to before 1789. That history I think is part of the reason why the privilege was limited to Senators and Representatives, but in the -- Tenney case the decision was, that they could not be subjected to civil liability and let me point out again that this is a suit against amendments, not against anybody else. Potter Stewart: It was not -- let me point out again but may that it could not have been under the Speech and Debate Clause? Erwin N. Griswold: It was plainly not under the Speech and Debate Clause. I recognize that, nor does it purport to be an interpretation of the California Constitution. Potter Stewart: No, no (Inaudible) of this Court's business? Erwin N. Griswold: And I think you will find and I read it as carefully as I could with just this in mind I think you will find that it really boils down to being a construction in the broad sense not of any particular language, a construction of the Civil Rights Act, on which the suit was based and to hold that Congress in passing that Statute could not have intended that it provide for suits against members of State Legislatures for doing what they regarded as their Legislative duty. William J. Brennan, Jr.: Mr. Solicitor General -- Thurgood Marshall: What do you say about Senator Ervin's point that when that Section, Article 1, Section 6 was adopted, Senators and Congressmen didn't have any stenos evidently? Erwin N. Griswold: I am on the first place Mr. Justice I doubt if it corresponds with the facts. I expect that many members of Congress had I recall John Quincy Adams went to Russia with his Father John Adams. Thurgood Marshall: Well, may be I wasn't fair the staff were not as elaborately -- Erwin N. Griswold: The staff were not as elaborate as they are now and I don't think that -- Thurgood Marshall: As I understood is argument, you couldn't argue that they were deliberately excluded? Erwin N. Griswold: Mr. Justice I think you can, because of this history about the extension of the privilege far beyond members in Parliament which came to be recognize as a great abuse and was completely eliminated by Parliament and then the Colonies, shorty before 1789 and I doubt very much that the distinguished gentlemen of the first Congress operated entirely on their own. It's perfectly plain they didn't have as many constituents as present members have, they didn't have electronic and other aids available. They didn't have a volume material pouring in on them with which they had to deal. William J. Brennan, Jr.: Mr. Solicitor General, I gather it's not doubted that the purpose of the Speech or Debate Clause was not protect Senators or Congressmen, that its purpose was to assure the people of the independence and integrity of their Legislators, wasn't it? Erwin N. Griswold: Well, I think primarily Mr. Justice nevertheless the history -- William J. Brennan, Jr.: Well I know, but that's the purpose, wasn't it? Erwin N. Griswold: No, the history of the Speech and Debate Clause is to protect the members not entirely but it large they were the members who were being arrested and put in the tower and Senator Ervin talked about Congressman, the Senators being intimidated. Now perhaps one reason you want to protect Congressman and Senators from being intimidated -- William J. Brennan, Jr.: Well, may I put it this way, certainly our cases, our opinions in this area have said, have they not, most recently Johnson, that the purpose of the Clause was not protection of the Congressman or Senators, but was as I have indicated to guarantee the people the independence and integrity of their legislator? Erwin N. Griswold: Yes Mr. Justice. William J. Brennan, Jr.: That's what we have said. Now accepting that for a moment, in the present context of the operation of the Congress, it's impossible I gather even the Executive branch would agree I am sure, to carry on its function without the assistance of aides, isn't it? Can you imagine a Senator today by himself performing? Erwin N. Griswold: No Mr. Justice, but I don't think that it follows that the -- William J. Brennan, Jr.: Well, know what I want -- what I am trying to get to if you accept the premise of the purpose of the Clause as I have stated it, then if the aides don't have the benefit of it as I think was argued yesterday, the Clause becomes -- Erwin N. Griswold: If you are guided only by that purpose, you would of course give a very squeaking application, I can't say construction, a very squeaking application of the Speech or Debate Clause, you would ignore in either House, you would ignore the Senators or Representatives, I don't know what else that you would ignore, but I find no basis for that. I think the public can be -- William J. Brennan, Jr.: Well I suggest that to the extent that we have put that emphasis on the purpose of the Clause to use your word, it has already been ignored. Erwin N. Griswold: I think that the purpose can be adequately maintained by guiding absolutely against the Senator or representative being questioned in any other place with respect to any speech or debate. And I know of nothing in our history to indicate that Congressman and Senators have not been fearless or that they have been restrained in their action because they think that the Executive branch and the Judicial branch -- William J. Brennan, Jr.: Well I accept the real hazard is that their independence and integrity or at least their independence, if you are right and that aides are not also protected, his close aides, the hazard is that the pressures of the Executive Department can deny the people the independence or offers a hazard of denying the independence which was the purpose of the protection? Erwin N. Griswold: Well Mr. Justice I think that is putting it in an unreal and if I may say so in inappropriate way. I don't know how many aides there are of Congressman and Senators. There are 535 Congressman and Senators. If they average 20 each which is probably low, that would be ten thousand people who would be entitled to all of these immunities. I suspect that it's more than -- I suspect that is closer to twenty or thirty thousand people when you include secretaries and other persons. I find it very difficult to think that either the founders intended or that it can fairly be found within that quite precise language of the Speech or Debate Clause that there was to be a large mass of people not merely in the capital, but all over the country because many of these aides are back in the Home Districts who are protected against being questioned in any place. The way it is asserted that Dr. Rodberg and these outsiders should be protected here. As I have said no case, and I repeat, no case has ever given such a privilege to an aide. Moreover the privilege applies only to speech or debate in either House and many of the questions which might be asked here relate to matters far outside of either House. Senator Ervin referred yesterday to the Massachusetts, the early Massachusetts case of Coffin against Coffin. It is rather fun to read that case as you might guess from the name it arouse out of Nantucket. There is nothing to indicate whether the two parties were brothers or otherwise related, they may not have been. It involved action on the floor of the House of Representatives in Massachusetts, in Boston where there had been a hope with respect to establishing a new office of notary public in Nantucket and question was raised as to who would be named for the office. The House voted to establish the new office which was undoubtedly a legislative business and then it developed that while other legislative matter was going on and still on the floor of the House, but had an area aside over beside the Speaker's bench, the one Representative came to Mr. Coffin and said, that they were going to name another Mr. Coffin and this Mr. Coffin said, what that criminal? And don't you know that he was involved in that bank robbery down there. Now it is perfectly true that Coffin against Coffin is regarded and rightly regarded as one of the leading cases in this area. Again it is written by theosophical persons, the then Chief Justice, all the other judges were well known Massachusetts figures. There is a long discussion of speech or debate, but the result of the case is that Mr. Coffin was held liable for a judgment of the $2500 which in 1804 was no inconsiderable amount. Because the Court held that this matter happening on the floor of the House but to decide and after the vote had actually been taken did not relate to a speech or debate in either House. The case is of course of great historical significance, but its decision I think is on the side which we advance here. Warren E. Burger: Mr. Solicitor General, do you think Congress could enact a statue giving some kind of limited privilege to its own staff members without running afoul to any Constitution? Erwin N. Griswold: Well, Mr. Chief Justice that's a nice question. I am just running through my mind the arguments on both side. Perhaps some day this Court will have to answer it. I don't myself feel qualified at this time to answer it. Certainly, the Congress should have great power to legislate with respect to its own activities, not merely power to protect, but I think also power to put out, that is power to say the contempts of Congress shall be tried in the Courts as has been the practice for a long time. I think without meaning to argue another case that Congress can provide that crimes committed by Congressman can be tried in the courts. So, I think that quite an argument can be made that not because of any express power, but something arising out of what Chief Justice Marshall said it is a constitution we are expounding. That if Congress did that in sufficiently limited terms it probably would be done. William J. Brennan, Jr.: Well I thought you suggest -- Erwin N. Griswold: But, it is not here. William J. Brennan, Jr.: You suggested earlier, didn't you Mr. Solicitor General that there was some kind of common law privilege, very-very narrow one and that you sought even the aides might today. Erwin N. Griswold: Yes and I think Congressman. William J. Brennan, Jr.: Well I suppose if there is then the Congress -- Erwin N. Griswold: Congress might spell that out in more detail. Potter Stewart: But, certainly Congress has power to enact evidentiary rules and laws for the Federal Court to establish privileges or to abolish common law privileges -- Erwin N. Griswold: Yes. Potter Stewart: -- as long as they are not constitutionally based. Erwin N. Griswold: Yes. Potter Stewart: No question about that -- Warren E. Burger: State legislative had granted such immunities to doctors and lawyers and ministers? Erwin N. Griswold: Yes, and I suspect that Congress at least in the federal courts, I don't know whether Congress could enact it with respect to evidence in the state courts. Now there is one final point here to which very little reference has been made. We have not only aides but we have third parties. Here Representatives of the M. I. T. Press and the Beacon Press, and I would say that a fortiori they have no privilege not to testify. It maybe that their testimony cannot be used against the Senator but it can be used against them and it can be use against other non-members. Only a Senator or a Representative is protected by the Speech or Debate Clause. And in particular, the Speech or Debate Clause has nothing to do with republication. In the first place, I don't want to concede that we are really dealing with republication here because as I understand the situation that most of the 47 volumes of the Pentagon papers were not read by Senator Gravel, after all it's seven million words. He read some of them and he then introduced the others into the record. They were never published as a part of the record. Indeed, what's involved here is Senator Gravel's effort to get them published and they were published by the Beacon Press. What I suggest to you that that may well not be a republication, but maybe not protected as the republication of material which has been published as a part of a congressional activity. In an event, the Speech or Debate Clause -- Potter Stewart: Your suggestion is that it's an original publication? Erwin N. Griswold: A private publication by Senator Gravel which is not a publication of the congressional materials. Here the chairman of the committee refused to authorize the expenditure, the funds for the reporter and they have not been published by the Congress and Senator Gravel has caused them to be published elsewhere which I suggest is not privilege under any conception of the Speech or Debate Clause. Potter Stewart: How much, if any, was in the congressional record? Erwin N. Griswold: I don't know how much was in the -- as far as I know none is in the congressional record. William J. Brennan, Jr.: How much of the exhibits published? Erwin N. Griswold: How much of -- William J. Brennan, Jr.: How much has been published? Erwin N. Griswold: All of those four volumes I believe, as far as, I know the four volumes have never been published. William J. Brennan, Jr.: That is the 40 what the 40 odd -- Erwin N. Griswold: There were 47 volumes. William J. Brennan, Jr.: And 43 have actually -- Erwin N. Griswold: And I understand that 43 of them published, most of the 43 of them published by defense department. And let me finally close by saying that there is no First Amendment question, here. No one is trying to stop publication, it's been done, the material has been published. William O. Douglas: So punishing publication might be a serious as kind of estoppal? Erwin N. Griswold: There were prior efforts to try to stop it but as far as Beacon Press is concerned, it has published it and the majority of the Court in the New York times case, made it quite plain though there could be publication, the consequences of that publication remain for consideration, and they might be criminal and they might be -- William O. Douglas: That was left open, wasn't it? Erwin N. Griswold: That was, that was left open and that Mr. Justice, is what we are trying to explore here to see whether there was any crime committed in connection with the publication of these materials, and we are trying to obtain evidence on that subject and I repeat, I do not see that the First Amendment is involve in anyway because the material has been published, the speech has been made, the presses have rolled, the situation now is what are the consequences of that and we believe that we are entitled with the evidence of these persons who have been subpoenaed in this case. Warren E. Burger: Thank you Mr. Solicitor General. Mr. Fishman. Charles L. Fishman: Mr. Chief Justice, and may it please the Court. If I may, I would like to go right to the heart of the claim of the Solicitor General. As I understand that is that the assertion of a possible illegal act raised to the Justice department, the power to imply into a legislative proceeding, that as I understand that it is our view. Effects of that -- Warren E. Burger: Would you define what legislative proceeding you are referring to when you use the term now? Charles L. Fishman: It doesn't seem to make a difference whether it's a committee hearing, a debate on the floor, or an attempt by a member to inform its constituents. He made no distinctions as I understand it, but specifically here we are talking about a committee meeting and a publication of the committee transcript. Warren E. Burger: By whom? Charles L. Fishman: By Senator Gravel, and but I am leaving this -- Warren E. Burger: So the official channels of Congress or elsewhere. I understood the statement was made that the committee, the Congress of the United States, the Senate in particular refused the funds for publication -- Charles L. Fishman: That's not true, Your Honor. That is not true. I invite Your Honor to the record where in the District Court that assertion was made on the basis of a newspaper article. District Judge Garrity denied the use of that article for the purpose which the government tried to use it. The only purpose was an assertion in that article, that Senator Randolph was upset with Senator Gravel and refused to pay for transcript. Warren E. Burger: Well, it must be well known whether or not the committee has actually published one of the usual reports, embracing all this material? Charles L. Fishman: Well, two things sir. In the discussion on the floor of the Senate with respect to that matter, Senator Randolph and Senator Dole both conceded that, that was not a problem in the subcommittee, and indeed as Your Honor knows, most committee reports are not printed in the United States covers. It's the rare report that actually ends up being printed. The appropriations committee meetings almost never, never published ultimately by the GPO. So really what we have here is nothing different in which you have normally and customarily before either House of the Congress, which is a committee transcript was compiled. It was not printed officially in the sense of the government printing office printing it, but it was printed rather by Beacon Press. Now as we have shown in our brief, a three-page footnote, that kind of publication is normally and customarily done with respect to committee reports of the United States Congress. Potter Stewart: Comittee reports are transcript of the committee hearings? Charles L. Fishman: Yes, sir, both are involved there as -- Potter Stewart: Which footnote, what page you are on, can you tell me? Charles L. Fishman: You just give me one moment, Your Honor. Potter Stewart: Sure, (Inaudible) let your colleague -- Charles L. Fishman: Fine. But it's a rather extensive footnote and I might add that we were limited of the time in which we had to do it. That was what we got out of the library of Congress called a catalog. There were we found out, after the brief had to be submitted, it's footnote 119 which states on page 86. It also covers page 86, that goes on and on. I might add that since then Mr. Chief Justice, we have discovered that every available congressional report is on microfilm in a variety of both private and public sources. And anyone who wishes, can purchase any single report or an entire proceedings of every single Congress from the first Congress through the last Congress, either partly or to some extent through the library of Congress. So it seems really clear from the history of what has happened in this nation that the fact that Senator Gravel went to Beacon Press as opposed to government printing office makes their difference. Indeed the Solicitor General does not argue than it does, either in its brief or here today. His position I assume is that had Senator Gravel gone to GPO and his subcommittee chairman said please publish this report and the GPO did publish the report, that nonetheless the grand jury could still conduct the same inquiry. Warren E. Burger: But as I understand the inquiry that the Solicitor General said the government wants to make is to determine whether any crime was committed in the acquisition of those documents? Charles L. Fishman: Well, again Your Honor, the District Court made a finding of fact. That finding was that the purpose of the subpoena to Dr. Rodberg was to question Dr. Rodberg with respect to preparation in the conduct of the subcommittee meeting. That finding of fact was not appealed Your Honor and is not before this Court. In the District Court, when the question came up with respect to the subpoena of Mr. Webber, which is the other party that was actually -- the subpoena is before this Court. At Page 128 of the Appendix, the government asserted that the primary purpose for calling Mr. Webber was, if may quote, “I must in fairness conceive that other areas of interest to us are ancillary so to speak or originated from the contact made by the Senator's representatives.” The basic purpose that they wished to question Dr. Webber as they stated in the District Court was about the conversations that Dr. Webber had with Senator Gravel and with his aides with respect to the publication of the subcommittee transcript. It was not with respect to acquisitions. Those were the findings of the District Court. So I don't think that the government at this late date can come to this Court and say really we are only interested in the original theft of the documents. That question has been now been foreclosed.But even if it were -- Warren E. Burger: Mr. Fishman, for your accommodation, to just your argument, we will enlarge your time three minutes so that you can -- Charles L. Fishman: Thank you, sir. I appreciate that. Warren E. Burger: -- plan it accordingly. Charles L. Fishman: I appreciate that. But even if it were, Your honor, we have never claimed that the privilege applies to anything other than legislative acts, never. Senator Gravel is subject to subpoena, as is Dr. Rodberg, as is Dr. Webber, as anyone else, with respect to non-legislative acts. The stealing of the papers we say is a non-legislative act and we have no objection, the Senator has no objection, to appearing before that grand jury and testifying with respect to his knowledge which he has none incidentally, about the stealing of those papers. What we maintain and we have maintained throughout this entire proceeding, what the basis of the dispute has been, is to the extent to which the executive may come to this Court and seek its subpoena and contempt powers to inquire into legislative acts, and there as Mr. Justice Rehnquist suggested, we have asserted a testimonial privilege to prohibit inquiry of legislative acts, but only legislative acts. All of the examples of the Solicitor General did not involve legislative acts, certainly kidnapping is not a legislative act and we would have no objection to inquiry involving non-legislative acts. William J. Brennan, Jr.: Well I gather Mr. Fishman the limitation against inquiring the motives and purposes, you feel -- was that -- Charles L. Fishman: That's where receipt would be prohibited Your Honor, inquiring to receipt would be prohibited. William J. Brennan, Jr.: And that for -- you want a broader protection than that, don't you? Charles L. Fishman: I'm not sure if I follow -- William J. Brennan, Jr.: Well, the facts -- didn't take Court of Appeals in the protective order, limit inquiry of Dr. Rodberg or the the other witnesses, and to anything that is more on motives or purposes? Charles L. Fishman: That's right, but there was beyond that. They limited the questioning of Dr. Rodberg beyond that Your Honor. What they failed to do was to extend the prohibition against inquiry to those who assisted Senator Gravel. William J. Brennan, Jr.: Are you satisfied with the limitations? Charles L. Fishman: No Your Honor. William J. Brennan, Jr.: (Inaudible) what I am thinking? Charles L. Fishman: No, Your Honor. I think it's sort of false sir, because no one can understand it, that's what the basic part of it is. William J. Brennan, Jr.: You mean, you don't understand what the motives and purposes are? Are there other things you don't understand about it? Charles L. Fishman: Well, that's one of the problems certainly. I would like to, in that vein go to another problem that keeps on popping up if I may which is we have never asserted an immunity from accountability although the Solicitor General keeps on bringing us back to that. I can't emphasize enough that our position is that if a crime has been committed, those who committed them are accountable. It's merely a question of where the accountability occurs. Byron R. White: How about a court? Charles L. Fishman: In court? If Dr. Rodberg, and I am using as an example, committed a crime and it was a non-legislative act, there would be no problem. He could be tried and convicted in de novo process. If there was some question -- Byron R. White: What if in preparation for a senatorial speech or a committee hearing, he committed the crime. Charles L. Fishman: Well, than this Court would have to decide whether or not to follow the -- Byron R. White: What's your position? Charles L. Fishman: Well, it's really a case of the alternate first impression in this line I suppose. We have (Inaudible) Your Honor and it's our position as we came to it that this Court should follow the English line of West and Walter and hold that those who assist, whose assistance is absolutely necessary could not be held accountable but of course this Court could hold it the other way. Byron R. White: What's necessary in preparation for legislative act, I mean is criminal activity necessarily to prepare for a legislative act? Charles L. Fishman: Well, it's that part of the problem of the cases Your Honor that they arose based on the libel and slander cases which are criminal in England, and it's a lot easy to say that that's protected, then it would be, say stealing. Certainly, stealing, the answer is no. William H. Rehnquist: Under your theory, would the question necessity be finally determined by the Senator himself or would that be subject to any sort of judicial review? Charles L. Fishman: No, I think that this Court ultimately has to determine the scope of Clause. We have never maintained that Senator Gravel himself can determine the scope of the Clause. This Court has to determine the -- William H. Rehnquist: Is this a necessity of a particular act or the performance of a legislative function, is that something that the Senator is the final to determine on the Clause? Charles L. Fishman: Well, I think comity requires that this Court give a good deal of consideration to the position of a member or indeed the body in that situation, but ultimately I think this Court has the responsibility of drawing the line. Ultimately, it must fall to this Court. Warren E. Burger: Let me be sure, I got your one statement unclear Mr. Fishman. Well, I understand you to say that a grand jury could call an assistant through a senator and ask where he got a particular documents as a foundation to determining whether they were stolen. Charles L. Fishman: No, Your Honor. I said the acquisition, as we have to draw the line simply because when you are going to acquisition, you have to go into things like his intent. Warren E. Burger: Well, if the fact is that they were acquired by breaking into a building at midnight and stolen out off a shelf which was blown up, you mean they can't inquire to them? Charles L. Fishman: No, they certainly can, Your Honor. I may have misunderstood you, Your Honor. What I was suggesting was that at the point when the material reaches the legislative body, acquisition for the legislative body, once it brings it to its (Inaudible), the inquiry must stop, but anything that occurred prior to that time, certainly, the grand jury may inquiry into. Warren E. Burger: The first step in that inquiry might be to ask someone who has possession, where did you get them and then go to that source and to the one before, tracking it down to the person who actually broke down the door and blew up the safe? Charles L. Fishman: So as long as that is not of the Senator or of the aide or of anyone who assisted him in the legislative process, I see no problem with that. Thurgood Marshall: Take this case. Charles L. Fishman: If i may Your Honor. Excuse me. Thurgood Marshall: Senator Jones, gets up on the floor and reads a top secret document from an executive office, and when the executive office checks on it, they find the safe is broken into. Now how do they go back to finding out how the Senator got that document? Charles L. Fishman: They could inquire. Thurgood Marshall: Of whom I am not talking what I am talking about about who? Charles L. Fishman: They can inquire, I suppose, of anyone and any who was involved at any point, up to the point were that material was received by the Senator or his aide. Thurgood Marshall: Well, wait, whom would you question? Charles L. Fishman: Well, it depends on its fact situation. I mean there are situation, I suppose, which one person just tucked it under his arm and walked away. Thurgood Marshall: I mean, under normal circumstances you have asked the man who had it, how did he get it, wouldn't you? Charles L. Fishman: Certainly. Thurgood Marshall: So you can't ask the Senator how he got it? Charles L. Fishman: That's correct. Thurgood Marshall: So where next do you ask? Charles L. Fishman: I don't believe you could ask the aide where he got it either. Thurgood Marshall: So that's a crime that can't -- Charles L. Fishman: No, that situation arose in 1938 in England, as Your Honor may know in Sandys case, in which a member of the British parliament received battle of the order plans. We are not talking about historical too but battle of order plans, the defense of Britain, the defense of the air, in the aircraft defense and the English Parliament held that Mr. Sands (ph) was not inquirable in any other place other than the House of Parliament. Potter Stewart: But that's the British parliament, the parliamentary premises and here we have over here, we have Constitution of the United States. Charles L. Fishman: To the some extent, that makes our argument stronger, I believe. Potter Stewart: To some aspects, but I don't think it makes that case, binding on us either? I had -- in reading your brief, a long brief -- when I came to footnote on Page 124, I thought that I had finally got your submission as to the scope of what you are asking which is just this. Senator Gravel does not seek to protect any aspect of or actor in the Pentagon Papers Case, other than his acquisition, not his source's acquisition of them. His staff's preparation of the papers for the subcommittee hearing and Beacon Press' preparation of the papers for publication and it's all about publication and distribution of them. I thought finally, I've got into encapsulated summary of what this brief is all about? Charles L. Fishman: I am sorry it took so long to get there, Your Honor. Warren E. Burger: Am I wrong, if there was three pages from the end of the brief, it's in the footnote. Would that be about it in answer to this colloquy that you have had this morning? Charles L. Fishman: Yes, and without question that is our position. We don't think we have to go beyond it, and we don't wish to go on it. Byron R. White: Well, you can say to the (Inaudible) say prior to the acquisition (Inaudible) did you have any conversations with anybody about it? Charles L. Fishman: Prior to what, sir? Byron R. White: Prior to the acquisition of these papers, at any period of time prior to the acquisition by the Senator's office of these papers, did you have anything do with the papers or did you have any -- Charles L. Fishman: Independently of the Senator's office, the answer would be yes. Byron R. White: Yes and it said then a theft on March 1, you could say where were you on March 1? Do you know who stole the papers? Charles L. Fishman: I think that would be perfectly inquirable. We have no objection to Dr. Rodberg asking that question, there would be no privilege asserted there. Byron R. White: And did you know prior to the acquisition that you are going to acquire it? Charles L. Fishman: Well, did you know prior to the actual acquisition, that the Senator was going to acquire them, I suspect that would be barred. That's where you touched on the legislative process, that's where you crossed that very difficult line, and you started into a sphere of legislative activity. Warren E. Burger: Your time is up now, Mr. Fishman, thank you gentlemen. The case is submitted.

John G. Roberts, Jr.: We'll hear argument next in Case 09-448, Hardt v. Reliance Standard Life Insurance Company. Mr. Ates. John R. Ates: Mr. Chief Justice, and may it please the Court: The Fourth Circuit vacated an award of attorney's fees to Petitioner Hardt even though the district court found Respondent violated ERISA in bad faith and required Respondent to redetermine benefits within 30 days or face adverse judgment. And Ms. Hardt then secured the full disability benefits after that court-enforceable order. Ms. Hardt is entitled to -- is eligible for a fee award under section 502(g)(1) of ERISA by proper application of this Court's established fee standards under any test this Court has previously established. But to be clear-- Sonia Sotomayor: What do you define as -- assuming that we go back to our prior language and use -- in Ruckelshaus, "some success on the merits", what's the "some success on the merits" that you claim your client reached? John R. Ates: --In that instance, the ERISA violation in this instance. Sonia Sotomayor: Now, I believe that this circuit said, yes, there are cases where we have so held, but that's because there was a cause of action under the complaint that -- that alleged a violation of the Act. But here there wasn't. Here, there was a claim for benefits only, and you didn't get benefits. That was the circuit's reasoning. So tell me where they erred and how we go back to defining "some success on the merits" in light of that position by the circuit? John R. Ates: They misread the complaint, Justice Sotomayor. We are claiming a claim for benefits. As part of that claim, we asked for equitable relief for the ERISA violation. The heart of ERISA is the full and fair review process in 1133 of the statute. Because without a full and fair review by the plan administrator, that fiduciary cannot get to the right result. It violated that obligation here. We asked for the benefits, but the district court, instead of awarding the benefits, said in the first -- in the second instance, here's your second bite at the apple; get it right this time. That's success on the merits under ERISA, because they must abide by their fiduciary obligations, and they breached it here. The relief the district court formulated in essence was an equitable-type relief: Do it again. We asked for that in the complaint. We asked for equitable relief-- Sonia Sotomayor: So what do you think our -- the meaning of our footnote, Chief Justice Rehnquist's footnote in Ruckelshaus, who said a procedural victory is not some success on the merits. How do you differentiate what he meant by a -- some procedural victory is not enough? John R. Ates: --I think it foreshadowed the Hanrahan-type case, and we are miles apart from Hanrahan. Hanrahan, which Respondent is relying upon, was the circuit court reversing the district court on a pure civil procedure issue. Here, there is a -- a right; it is a process right. So when the process right is violated, your relief is going to necessarily be process-driven. Antonin Scalia: It was the same in Hanrahan. There was a right to a certain process in the lower court, and the -- the person complaining achieved reversal. It was sent back and said: Do it right. Give this person the process that -- that he's entitled to. John R. Ates: But, in Hanrahan, there was no finding of a violation of law, Justice Scalia. Here we have a violation of ERISA, a violation of a fiduciary obligation by the plan administrator. The relief accorded for that violation was a remand back to the plan administrator to get it right. That's the difference between our case and Hanrahan. In Hanrahan, there was no finding of a violation of law. No one was found to be a legal wrongdoer. We have that here. The fiduciary breached its obligation. Ruth Bader Ginsburg: Are you saying that in Hanrahan there was no prod at all from the court, and here there is? John R. Ates: I'm sorry-- Ruth Bader Ginsburg: In Hanrahan, there was no prod from the court; the court didn't say anything that -- it was the filing of the complaint that led to the action, wasn't it? John R. Ates: --Well, what happened was the district court, I believe, granted a motion to dismiss or a motion for judgment as of law at trial. The -- the court of appeals reversed that. What we have here is a prodding from a court, but moreover a finding of a violation by a court. The court found Reliance violated ERISA. That's the key distinction between here and Hanrahan. And-- Ruth Bader Ginsburg: Suppose now, in response to "Do it right", Reliance on a complete record and very careful review finds that total disability was not proved. Then there would be no fees, right? John R. Ates: --No. Under our position, the -- Ms. Hardt is eligible for fees and the district court can take into account trust law principles which are embodied in what we call this five-factor test to determine whether to award fees. She's eligible for fees based on the violation by Reliance in bad faith. We have a legal wrongdoer here. The amount of those fees, Justice Ginsburg, may be determined in part by her degree of success. Anthony M. Kennedy: Well, this district court kept jurisdiction over the action. He more or less waited to see how the story came out before he wrote the plot. Suppose the district court said: All you came to me for was an order for remand. I give you the order for remand. Case ended. At that point, he doesn't know how it's going to come out. At that point, can he -- can the district court award attorney's fees? John R. Ates: Absolutely, the court at that point, if he's closing the case out in particular and entering judgment as to the violation-- Anthony M. Kennedy: So that even if, when it goes back to Reliance, Reliance finds that it's patently frivolous, close to a fraud, she -- the employee still gets the fee? John R. Ates: --The only way it's going back, Justice Kennedy, is from a violation of law. So, in that regard, she has succeeded on the merits by proving a violation regardless of the outcome at the end of the day. Now, here certainly she got the benefits, so we -- we meet even Buckhannon and beyond. But in the case where the district court is sending it back, it must be sending it back for a violation of law, save one instance. The claimant comes forward and says: I have additional evidence that I didn't -- I didn't submit below. I've got an equitable ground to -- to convince the court to, in essence, reopen the record. I want -- I want to send it back. In that instance, fees should not be awarded because it was the claimant's fault in not getting this record -- this record evidence in. John G. Roberts, Jr.: Well, she prevailed in some way to give her another chance to make that argument. John R. Ates: Again-- John G. Roberts, Jr.: I'm just saying I think you're giving up too much. John R. Ates: --Maybe I am, Mr. Chief Justice. But my point is to try to distinguish Hanrahan, in the sense that we have a judicial finding of a legal violation here. What I was trying to articulate earlier, perhaps inartfully, was that she -- she's eligible for fees under the five-factor test, but in that instance the district court is not likely to use its discretion to grant fees in that instance. I was not-- John G. Roberts, Jr.: Well, what if you get in Justice Kennedy's situation, where the court doesn't know what's going to happen on remand? You know, the objection is -- the administrator throws it out, saying, you know, you filed the wrong form, so you lose. And the district court says you can't throw it out on that basis; under trust law, it doesn't matter. And it goes back. Now, the district court doesn't know what's going to happen. Does she get fees or not? John R. Ates: --It -- it depends on what the district court does with it. But she has to prove a violation of ERISA for it to go back. And if she proves that, she's eligible for fees. And the district court in its discretion can take all these factors into account-- John G. Roberts, Jr.: So is the district court -- is the district court supposed to wait until the whole thing is over before deciding the fee application? John R. Ates: --I think the better practice is for the district court to hold the case over and supervise the remand. But if the district court enters judgment at that point, then -- then under Rule 54 or the -- they have to come in and apply for fees within 14 days of that judgment. But this case does not give this Court an opportunity specifically to give the courts, district courts, guidance whether to keep these cases open or not, much like the Social Security cases that happened in the late '80s and early '90s. But to get back to our main point, which is this is not a prevailing party statute, that was the fundamental error by the Fourth Circuit in imposing a prerequisite to determining whether a claimant is entitled to fees. Section 502(g)(1) is not a prevailing party statute for three primary reasons: first, the language and structure of the statute. The words 502(g)(1), but it is in other sections of ERISA. Its statutory sibling, section 502(g)(2), contains a judgment requirement. Another provision of ERISA, 1451(e), uses the terms "prevailing party". Sonia Sotomayor: How could somebody have some success on the merits if they don't achieve a judgment of some sort? John R. Ates: This case -- in the -- in the Bradley case, which was cited in Hanrahan, said you have many final orders in a case, and if the court determines an issue of -- a particular issue in a case -- and here it's finding an ERISA violation -- and as relief for that they are issuing an order requiring Reliance to act within 30 days, let's say the case settles at that point. That's enough for fees to issue should the parties not be able to agree on fees as a part of the settlement. It's the judicial act in finding the violation that triggers -- triggers the success on the merits. And this case was on the merits. As we pointed out in our very yellow brief, the district court-- Sonia Sotomayor: But under your theory, presumably no relief has to be granted? John R. Ates: --Relief does not have to be granted. The district court-- Sonia Sotomayor: But then what -- what's the difference -- is it your theory that if the district court -- for whatever reason, if this wasn't an ERISA case where a remand -- or where the court said they did violate, but I've now looked at the evidence that you're proffering, the new evidence they did not consider, and it's not enough for benefits; you don't get it. Is your argument that you are entitled to fees because they decided there was -- the court decided there was a violation of ERISA? John R. Ates: --Yes, it is. My argument is you're eligible for fees, and the amount of fees will be taken into account in determining the degree in the district court, taking these five factors into account, taking into effect your position on the merits, the defendant's position on the merits, and determining what that fee award should be. But it should not operate as a barrier to getting into an eligibility question. So she's eligible for fees in that instance, but what those fees should be is at the district court's discretion-- Sonia Sotomayor: Going back to Justice Scalia's question, what's the difference between Hanrahan, where there's a violation of the civil procedure code which is an entitlement to process? Why aren't you successful, if this is a non-ERISA situation, merely for a finding that the district court acted improperly? John R. Ates: --Because you have to look at the party who is violating. Here it's the party who's violating the law. It's a party to the suit who is violating the law. That violation is found in Hanrahan. It's a civil procedure. The district court didn't -- didn't do something right. Here -- and that's not a violation of the -- of law. That's a -- that's a misapplication of a civil -- of a rule of civil procedure. Here we have a violation of law by a party. That's the fundamental difference between us and Hanrahan. John Paul Stevens: May I ask -- ask this question? The question here is whether there was eligibility for fees. Could the district judge in your view say, yes, I think the plaintiff is eligible for fees, but it was actually a very difficult legal issue, and the defendant's position was entirely reasonable, so I think as a matter of discretion I will not award any fees? John R. Ates: The district court can exercise its discretion and not award fees. I think, however, that the better result is when a violation of law is proven, the plaintiff or in this instance a claimant or beneficiary should be entitled to some amount of fees because the purpose of the statute, explicitly stated in the statute, is to protect beneficiaries and claimants and have access to the Federal courts. If every case is a close case and you're not giving -- giving fees, then -- these are folks of limited means. These are folks by definition cannot work when they are disabled, and you are eating up their benefit through attorney's fees. And that cannot be the point of the statute when Congress enacted this. It is to protect beneficiaries, to give appropriate -- give appropriate relief and keep open access to the Federal courts. If I can get back to, again, why this is not a prevailing party statute, the language and structure clearly show that. The history and context show it as well. And I'm not talking legislative history. I'm talking about the fact that ERISA supplanted the Welfare and Pension Plans Disclosure Act, which required a judgment before fees could issue, but Congress chose to remove that requirement when it originally enacted-- ERISA. It does not have that judgment language and does not have prevailing party language. Moreover, this Court repeatedly has held that trust law should inform the interpretation of ERISA. Trust law, for hundreds of years, has taken into account these principles that the district courts and courts of appeals have relied on for at least 30 years under ERISA to inform, guide, and limit district courts' discretion in awarding fees. I'd like to reserve the remainder of my time. John G. Roberts, Jr.: Thank you, counsel. Mr. Shah. Pratik A. Shah: Mr. Chief Justice, and may it please the Court: The district court found that Respondent's original decision denying benefits disregarded pertinent medical evidence in violation of ERISA and found that the decision was otherwise unsupported by substantial evidence. Based on those findings, the district court ordered Respondent to make a new benefits determination, after which Respondent finally granted the benefits due. Those facts established Petitioner's eligibility for a fee award under ERISA section 502(g)(1), which authorizes a court to award reasonable attorney's fees, quote, "in its discretion", end quote. That discretion, as per ERISA more generally, is to be exercised in accordance with well-established trust law principles, and those principles quite clearly reject a strict prevailing party standard-- Sonia Sotomayor: Could you tell me whether you differ in your definition of "some success on the merits" than your predecessor colleague? Do you define it as in the manner he did, that it's any legal judgment in the Petitioner's favor that another party has done a wrongful act? I think -- I think I'm summarizing his position accurately. Pratik A. Shah: --Yes, I -- I think we are in an agreement, Your Honor, with -- with -- with Petitioner's characterization. When there's a judicial order finding a violation-- Sonia Sotomayor: No, that's different than what he said. Pratik A. Shah: --Okay. Sonia Sotomayor: All right. Yes, here there was an order of remand. That's clear. And I can understand the difference between an order, because there are many decisions of the court that end up in orders that are not final judgments. But there are decisions, like this one, I think according to him, that if the district court had said there was a violation of ERISA and the parties then settled without a judicial order reflecting that finding and/or requiring a remand, I think according to him he would say this party was entitled to fees. Pratik A. Shah: I don't want to characterize his view, but here's our view on -- on "some success on the merits". If the order -- to be concrete about it, the order in this case -- assuming this case, all that-- Sonia Sotomayor: No, I didn't assume this case. Pratik A. Shah: --Pardon? Sonia Sotomayor: No order, just a finding. Pratik A. Shah: So there's a finding of an ERISA violation, period? Sonia Sotomayor: And then a settlement. Pratik A. Shah: And then a settlement. Well, Your Honor, I think it depends on which framework we're operating under. I think if we're operating under well-established trust law principles, that clearly qualifies as enough success to justify a fee award. And we can look at several of the trust cases cited in both our brief and Petitioner's brief. In re Catell's Estate is discussed in all the briefs. There the plaintiff brought a claim to remove a trustee, and the basis for the claim to remove the trustee was a contention that the trustee wasn't complying with one of the terms of the trust. After he filed the suit -- and this was before even any finding by the judge -- the trustee then complied with that particular term of the trust. And then what the court said was, well, because the trustee complied with the underlying premise or the motivation for your suit, I'm going to deny your claim to have the trustee-- Sonia Sotomayor: Well, that seems like a catalyst theory, and that was, at least in dicta, rejected in -- in Ruckelshaus. So how do you deal with that? Pratik A. Shah: --Well, it wasn't -- in the dictum in Ruckelshaus; it was actually accepted, Your Honor, in that -- in the footnote the Court -- in the dictum within Ruckelshaus, the Court says quite plainly that Congress, in departing from a strict prevailing party language in Ruckelshaus, meant to embrace judicial -- relief that wasn't encapsulated within a judicial order. But we're far afield from Ruckelshaus here, because we actually have a judicial order, and we're far afield from the outer limits of the trust -- trust law cases which -- which, for example, In re Catell's Estate, which I just mentioned -- and by no means is In re Catell's Estate an outlier. The Third Circuit's opinion in Dardovitch, which is also cited in our brief, recounts In re Catell's Estate as falling well within the history of trust law cases. Petitioner's reply brief at page 11 cites Grien v. Cavano. That's another case where a plaintiff brought -- brought a claim that a union fund was not complying with accounting and proper bookkeeping procedures. After he filed the suit, they fell in line, adopted the various procedures that plaintiff had sought, and the court still said: Drawing upon trust law principles, we're going to award fees. Now, again, I don't think the court has-- Antonin Scalia: As the Respondent points out, the position you're taking is unusual for the government. The government is usually arguing against fees, because the fees are often assessed against the government. Pratik A. Shah: --Right. Antonin Scalia: So long as you know that you're making your bed and you're going to have to lie in it-- [Laughter] --and you're essentially saying that when there is simply a procedural victory, which happens all the time, when -- when an agency is -- is reversed in its procedure even though the -- the -- the petitioner here doesn't get any concrete relief until it goes back to the agency and may lose in the agency ultimately, you're -- you're content to say that fees are assessable in that situation, just by reason of the procedural victory. Pratik A. Shah: Your Honor, a couple of responses: First of all, ERISA is somewhat unique in that ERISA -- first of all, this provision doesn't have prevailing party language as -- unlike EAJA, for example-- Antonin Scalia: No, I'm talking about other prevailing -- I'm talking about other statutes that don't say "prevailing party". Pratik A. Shah: --Okay. Antonin Scalia: Sure. Pratik A. Shah: I think still this provision is unique in that it's informed explicitly by trust law principles, as this Court has held numerous -- in numerous decisions regarding other ERISA provisions. And the trust law principles depart from the American rule. All of those other statutes which you have in mind, Justice Scalia, are premised on the background of the American rule. The trust law departs from American rule, and so when you interpret ERISA section 502(g)(1) based upon the trust law principles, I think that supports a different-- Antonin Scalia: I'm -- I'm -- I'm not sure it's reasonable to interpret an attorney's fee provision as having anything to do with trust law. Pratik A. Shah: --Well, even-- Antonin Scalia: It's -- it's a requirement of attorney's fees enacted by -- by the Federal Congress, and I -- I find that very artificial. Pratik A. Shah: --Well, Your Honor, it's -- it's a fee provision enacted within ERISA which explicitly states as one of its purposes to protect beneficiaries and to provide them access to courts. This is in the legislative history. Anthony M. Kennedy: Well, I -- I can see now why the red brief has a very substantial appendix with statutes. Now, you say, oh, this is unique. Well, then we may have many, many different kinds of statutes. This does not provide for -- this is not a prevailing party statute. Pratik A. Shah: Correct. Anthony M. Kennedy: But just in going through the list of the statutes, there are many statutes that are not prevailing party statutes. And it seems to me that -- you say it's unique. Well, it's unique in the sense it's in ERISA, but I -- I think it's very close to many -- many of the statutes with the language there in the red brief's appendix. Pratik A. Shah: Right. And, Your Honor, previously the government has made narrow arguments. For example, there were arguments-- Stephen G. Breyer: Take the case, though -- just take the -- what is the government's position? The ERISA plaintiff wants $5 million. They get denied everything. The -- the court says: I noticed here there was a 30-day deadline that you had, and he only gave you 28 days, so I'm sending it back, but I'll tell you your claim that there was enough evidence is absurd; you're never going to win it. And then he goes back, and he loses it. Okay? He has had a procedural victory. Does he get attorney's fees? Not -- not a chance that he's going to win this claim, and, indeed, he loses it. He doesn't get a penny. Does he get attorney's fees, because on a technicality he won a new hearing? Pratik A. Shah: --Under your hypothetical, Justice Breyer, a district court would be within its jurisdiction to deny attorney's fees. That doesn't-- Stephen G. Breyer: My question is-- Pratik A. Shah: --He wouldn't-- Stephen G. Breyer: --does the statute, in the view of the government, permit attorney's fees in the case I just mentioned? Pratik A. Shah: --Probably not in application. He would be eligible, but a district court-- Stephen G. Breyer: Your answer is, yes-- Pratik A. Shah: --Yes. Stephen G. Breyer: --it does permit? Pratik A. Shah: Yes. But a district court applying-- Stephen G. Breyer: All right. You're just saying it won't be a problem because the district court judges are all reasonable, and I know they think that. [Laughter] John G. Roberts, Jr.: What if -- what if the success is preliminary? You know, the plaintiff survives a motion to dismiss, the plaintiff survives a motion for summary judgment, wins every procedural issue, wins a privilege issue, gets discovery issues resolved, and at the end of the day loses? The plaintiff has had-- Pratik A. Shah: --No, Your Honor-- John G. Roberts, Jr.: --Why? He has had some success. Pratik A. Shah: --No, Your Honor, because that would be captured within Hanrahan, we think, and that's -- and that's easily distinguishable because those are errors -- even if some of those procedural victories were overturned on appeal or procedural losses were overturned on appeal, those are all errors within the court system or victories within the procedures of the court system, not a violation of -- on the merits of the underlying claim, which is what we have here. We have a finding of a violation of ERISA and then relief ordered to-- John Paul Stevens: But then, aren't you treating the statute as though it did have a prevailing party clause in it? Pratik A. Shah: --Pardon, Your Honor. John Paul Stevens: Is not your construction one that just treats the statute as though it required the plaintiff to be a prevailing party? Pratik A. Shah: Well -- well, Your Honor, no. I think our -- our -- our argument is to interpret it in light of trust law principles. Now, the trust law cases -- there is language in some of the trust laws cases that suggests that fees -- fees could be awarded to unsuccessful litigants or regardless of outcome. But I think if you read those cases, on the facts of those cases they don't go that far. But I think what they do embody is a much broader notion of success than the strict prevailing party jurisprudence that this Court has promulgated-- Anthony M. Kennedy: Well, under your -- under your rule would it be error for the district court to terminate its jurisdiction? It must keep jurisdiction to see how the play comes out in the end? Pratik A. Shah: --No -- no, Your Honor, I don't think it must keep jurisdiction. But certainly in a case where it does retain-- Anthony M. Kennedy: Well, but it certainly has to in order to adopt the ameliorating factors that you -- that you use in order to justify this rule. And I -- I -- it's not clear to me that courts usually retain jurisdiction in these cases. Pratik A. Shah: --May I respond, Your Honor? A couple of responses, Justice Kennedy: First, if they didn't retain jurisdiction -- and in the Seventh Circuit, for example, that's one circuit which says that these orders have to be final, and final judgment has to be entered -- then we're exactly analogous to a sentence 4 Social Security case. And this Court has made it clear in a line of decisions that upon entry of final judgment -- and those are exactly analogous in the sense that what happens is that the court finds that the decision below committed some error in law, it vacates that decision, and then sends it back to the Social Security Administration for a new determination without preordaining the result. Regardless of the result there, at the time of the remand and entry of judgment, that plaintiff is eligible for -- for fees. We think that the same outcome would be controlled here, even if the Court applied its strict prevailing party jurisprudence. Thank you. John G. Roberts, Jr.: Thank you, counsel. Mr. Rosenkranz. Nicholas Q. Rosenkranz: Mr. Chief Justice, and may it please the Court: No judge has ever decided the merits of Petitioner's claim for benefits. Under this Court's holding in Ruckelshaus, the Petitioner must demonstrate some success on the merits, and under Rule 54 she must specify the judgment entitling her to an award. Ruth Bader Ginsburg: What about the footnote that was mentioned in Ruckelshaus that said: "Congress found it necessary to explicitly state that the term "appropriate" extended to suits that forced defendants to abandon illegal conduct. " --illegal conduct was found here -- "although without a formal court order? " Nicholas Q. Rosenkranz: Yes, Your Honor. Footnote 8 of Ruckelshaus addressed one sentence of legislative history of a different statute, and only so far as the Court pointed out that the sentence was of no use to Sierra Club in that case. I don't think the footnote is properly read to be a full-fledged endorsement of the catalyst theory. Ruth Bader Ginsburg: This is not merely a catalyst. In Buckhannon, the catalyst theory was rejected. Here the court said: If I were to decide right now -- the district court said: I am inclined to rule for Hardt, but I'm going to give Reliance an opportunity to respond. So the court had evaluated the evidence at that point as favoring Hardt. To that extent, it wasn't a purely procedural ruling. It says: As things stand now, Hardt should get fees; but I'm leaving the door open. So it wasn't just a procedural decision. It was an evaluation of the evidence up to that point, wasn't it? Nicholas Q. Rosenkranz: Yes, Your Honor, but it would be an utterly unadministrable rule to attempt to weigh the inclinations of district judges in their opinions. This Court's precedents have made clear that we weigh success on the merits by evaluating judicial judgments. Stephen G. Breyer: Well, the judgment is, send it back. That's what it says: Send it back. And the reason for sending it back is this woman was undergoing terrible pain, that the Social Security Administration says she's completely disabled, that she's entitled in the -- on the evidence shown. There's no substantial evidence to the contrary. But you, the company, want to take money from her instead of giving her the money. Now, I've read the record. It doesn't support anything contrary to what I've said. So now you send it back. Now, what is that but a big victory for the other side? Which then leaves the company to say: They're right; pay them. Now, if that isn't -- I mean, what words of English -- if you're -- we're talking about partial success. Partial success, or not total defeat. That is the language from Ruckelshaus. Not "total success". You still get it. Okay. What in the English language can we read in a case or a statute that would say you shouldn't reach that commonsense result? Now, of course, I'm characterizing it a little bit, but it does seem like a commonsense result. Nicholas Q. Rosenkranz: Your Honor, Petitioner in this case, like all plaintiffs, arrived in court requesting a judgment, a judgment awarding her benefits. Indeed, she believed she was entitled to such a judgment as a matter of law, and she moved for judgment as a matter of law for summary judgment. What the district court actually did was deny that motion for summary judgment. Rather than give her the judgment she sought, the district court employed a particular procedural maneuver, which was to remand the case -- quote, "remand the case" -- to her litigation adversary to reconsider the question. Now-- Sonia Sotomayor: His point -- your adversary's point -- is the court couldn't effect that procedural move without taking step one in what was requested. It had to find some sort of violation, either to remand or to grant benefits, so that the relief sought, by definition, needed a finding by the court. And your adversary says the court found an ERISA violation. Now, the type of relief it grants is up to its discretion. This is an equitable situation, and it exercised its discretion by doing a remand. Why is that view different than calling it a procedural step? Isn't that a substantive win? Nicholas Q. Rosenkranz: --Your Honor, this is a purely interlocutory order. So this was not an end to the case. This was not a decision on the merits. This was a purely interlocutory order, on the road to a decision on the merits, perhaps, but the district court denied her motion for summary judgment, did not conclude that she was entitled to benefits as a matter of law and, instead, remanded the case for further proceedings. So-- John G. Roberts, Jr.: Counsel, what is the impact on your position of our decision last week in Conkright v. Frommert? I know you haven't had a chance to brief it, but I'm also sure had you a chance to read it. Nicholas Q. Rosenkranz: --Your Honor, Conkright emphasizes that these judgments are to be made in the first instance and, in fact, in the second instance by claims administrators, that that is-- John G. Roberts, Jr.: I would have thought that it -- one thing it did emphasize, that in the typical case, the likely relief is going to be sending it back rather than making a judicial decision, which -- which seems to me, then, that -- and then presumably, in most cases, the person would prevail before the plan administrator. So given Conkright, your position is going to severely limit the circumstances under which claimants are entitled to fees. Nicholas Q. Rosenkranz: --Your Honor, it's -- you are correct that in Conkright, the Court -- Court indicated that in most cases the district court should remand under circumstances like this. You are quite correct. Under circumstances like this, then, there would be fewer opportunities for district courts to award -- to award fees. And that's a correct result under 502(g)(1), which, as informed by-- John G. Roberts, Jr.: Even though the -- as in Conkright, the claimant's success can -- before an agreement, can be quite dramatic. This was a very, very significant victory for the claimant to get it sent back under those circumstances. Nicholas Q. Rosenkranz: --Your Honor, I'm not sure this should be characterized as a victory. This is not a procedural maneuver that the plaintiff sought. The plaintiff asked for summary judgment, and her summary judgment motion was denied. And, instead, the district court chose to remand the case to her litigation adversary. Surely, at that moment at least, that surely could not have felt like a victory-- Antonin Scalia: Future claimants will not ask for summary judgment from the district court, presumably, in light of Conkright. They will ask that the case be remanded. So, in future cases, will they have obtained a victory? Nicholas Q. Rosenkranz: --I don't think that future claimants will ask for a remand as their final form of relief, Your Honor. This was -- the relief that one asks for in one's complaint is the final judicial relief that one wants. This is-- Antonin Scalia: Well, we've -- we've already told them they can't get that. Nicholas Q. Rosenkranz: --Your Honor, a plaintiff could get an -- could get the relief of benefits if a claims administrator had acted severely improperly or in very bad faith. A district court still has power to issue an award on summary judgment-- Antonin Scalia: The claimant doesn't -- doesn't really claim that. The claimant just says this was a wrong decision and they should do it correctly. And the claimant knows that all he's going to get from the district court is a remand. Nicholas Q. Rosenkranz: --But the correct way to-- Antonin Scalia: So he would not ask for money and, therefore, would be victorious, on your analysis. If all he asked for was a remand, he got a remand. Nicholas Q. Rosenkranz: --No, Your Honor. A properly framed complaint under ERISA should still be a claim for benefits. The -- the remand that Conkright contemplates is still an interlocutory remand, like the remand here. One does not put in one's complaint a desire for interlocutory relief, any more than one asks-- Stephen G. Breyer: If someone wants a remand, it's a remand, but on limited grounds; that is, a holding of the district court. The ERISA administrator was -- it's an abuse of his discretion to refuse to give this woman nothing. In my opinion, she's entitled at least to $30,000, but whether it's 30 or 35, I don't know. So I remand it to the ERISA administrator so he can decide to act within -- within his discretion, give her either 30, 1, 2, 3, 4, or 5. Now, in your view, attorney's fees -- all the statute says is the court, in its discretion, may allow a reasonable attorney's fee. Nothing more. Now, what would stop an attorney's fee in that situation? Nicholas Q. Rosenkranz: --Your Honor-- Stephen G. Breyer: If that's what you think. Nicholas Q. Rosenkranz: --Your Honor, a remand order under those circumstances might constitute success on the merits because it resolves an issue in the case, which was liability in the case. So that perhaps would constitute success on the merits. This resolved no substantive issue on the case. This remand order simply says: As a procedural matter, go back and look at it again. Stephen G. Breyer: You distinguish between him saying you have to give her at least 30 and his saying the evidence that supports giving her less than 30 is -- insufficient, is substantially -- is -- what's the word? Yes, worthless. Nicholas Q. Rosenkranz: Yes, Your Honor, this Court has -- this Court has expressly distinguished between judicial-- Stephen G. Breyer: That's the line you draw? Nicholas Q. Rosenkranz: --Yes, Your Honor, the difference between judicial pronouncements and judicial relief is one that this Court has-- Sonia Sotomayor: That -- that's difficult. Let's assume that a claims administrator or a plan administrator is not deciding the claim. The party comes to court and says: Under ERISA, I have a right to a decision within X number of days; force them, mandamus them to give me a decision. The court says: Reasonable; you have a right to one. And orders them to. Under your theory, they've won nothing? Nicholas Q. Rosenkranz: --No, Your Honor, in your hypothetical the -- the remand order would presumably be a final judgment, and it might well constitute success on the merits. Sonia Sotomayor: So you're -- you're -- wait a minute. Then we go back to a question that was asked by one of my colleagues. If a plan participant came in and said they didn't consider evidence they should have; they didn't seek my treating physician's documents, and here they are; they should consider them now, and the court says you're right, enters a remand order, and dismisses the case -- that's enough? Nicholas Q. Rosenkranz: Your Honor, I'm not sure that's a properly formatted ERISA complaint. If the gravamen of the complaint is "I want my benefits" then-- Sonia Sotomayor: Well, what -- what's the difference between the first example I gave, a mandamus to issue a decision -- that's not a claim for benefits, either; it's a claim for a decision. What's the difference between that and the second hypothetical? Nicholas Q. Rosenkranz: --If the -- if the gravamen of the complaint is a complaint for benefits, then the complaint should ask for benefits, and the judge should resolve that case. A remand would always maintain jurisdiction -- should always maintain jurisdiction over the case, thus always be interlocutory and procedural. John G. Roberts, Jr.: Is that how it works? Remands always retain jurisdiction? I would -- I would have thought the district judge would want the thing off his or her docket, you know, for the statistics, if anything. And-- [Laughter] --and would say, and maybe could say -- well, what if the judge says: Look, I don't know if you're going to prevail or not on remand. My decision actually doesn't help you much one way or the other, but if you get benefits, then the other side is liable for attorney's fees, and I assume you'll be able to work out the amount. If you don't, he's done. End of case. Sent back to the administrator. Nicholas Q. Rosenkranz: Your Honor, on the research that we have done, most district courts hold jurisdiction on remands such as this, and we believe that is the proper course. When the case -- the gravamen of the case is a complaint for benefits, the district court merely remands to the ERISA claims administrator, the merits of the case simply have not been decided. Stephen G. Breyer: That may be, but why can't they do this? What would be wrong with this heretical idea, that as long as the plaintiff wins something out of the court, the district judge -- that group of people we were talking about -- has discretion to decide whether ultimately they got something significant of what they wanted, and as long as that judgment helped them get them something significantly of what they wanted, attorney's fees are fine; and we leave it all up to the district judge as long as the district judge doesn't abuse the discretion that that standard gives him? What would -- I mean, would the Earth come to an end? What would happen that would be so terrible if we said something like that? Nicholas Q. Rosenkranz: Your Honor, I believe that would be to embrace the catalyst theory that this Court rejected in 2000-- Stephen G. Breyer: It didn't say anything against the catalyst theory. It said you have to remember this is an American country, we follow the American rule, and there has to be something special in the situation. And what would be special in this situation is that the judge has to decide that as a result of the favorable ruling, the plaintiff really did get something significantly of what she wanted. Nicholas Q. Rosenkranz: --Your Honor, the Court was careful in Ruckelshaus to say that a purely procedural victory would not suffice. Now, purely procedural victory may well -- may well result in success for a plaintiff at some later stage; it could result in out-of-court success. This Court has been crystal clear that we do not look for success out of court; we don't look for it in interlocutory orders-- Ruth Bader Ginsburg: Mr. Rosenkranz, suppose the complaint was: I asked for a turnover of certain documents; they refused without reason. And the court says: You're right; you're entitled to those documents. It's interlocutory; there is no decision; but the only thing that the plaintiff asked for the plaintiff got, that is entitlement to the documents. The court said: You are entitled to the documents. And then it goes back, and the documents are turned over because the court has ordered that. Under your theory, because there was no determination of benefits, even that ruling which was a total victory for the plaintiff doesn't open the door to fees. Nicholas Q. Rosenkranz: --On your hypothetical, Your Honor, that would not be an interlocutory order. So if a plaintiff arrives seeking only documents and the district court awards her, her documents, that would be the end of the case, and the district court would properly relinquish jurisdiction, and we could evaluate, compare the result that the district court gave -- gave a plaintiff with what the plaintiff originally asked for. But this is not such a case. Ruth Bader Ginsburg: So that would fall -- even if in the end of the -- at the end of the day no -- no award is made? No benefits are awarded? Nicholas Q. Rosenkranz: Your Honor, it might be proper to frame a complaint under ERISA for a purely procedural remedy like some documents. That is not the main run of ERISA cases. So in the normal case, a petitioner arrives -- a plaintiff arrives asking for benefits. And-- Ruth Bader Ginsburg: But you -- but you say -- you called it purely procedural and you said yes, but that's the only thing that she asked for. So she got it. So she qualifies for fees. Even though you just characterized it as purely procedural, it's a purely procedural ruling, but it's all she asked for-- Nicholas Q. Rosenkranz: --Your Honor-- Ruth Bader Ginsburg: --so she gets benefits. Nicholas Q. Rosenkranz: --I'm not sure that a properly framed ERISA complaint would be -- would be for a purely procedural result. If one could frame an ERISA claim like that, which I think is extremely-- Ruth Bader Ginsburg: Well, I'm not dealing with something obscure. If the -- the plaintiff says, I have asked for certain documents, they withheld those documents with no good cause at all, and the court said: You're right; turn over documents. It's that hypothetical. It's just -- that's the situation. There is a final order: Turn over the documents. But it's a procedural order, right? Nicholas Q. Rosenkranz: --Yes, Your Honor. Ruth Bader Ginsburg: But, nonetheless, benefits would be -- nonetheless, fees would be available? Nicholas Q. Rosenkranz: Your Honor, our position is that in this case the remand order was both purely procedural and interlocutory. So it fails under both those grounds. On your hypothetical, the -- the order would be a final order, but presumably still purely procedural, and so perhaps not success on the merits even on that hypothetical. Antonin Scalia: What if-- Ruth Bader Ginsburg: You're changing -- you're changing the answer. The answer that you first gave me was it's a discrete issue -- final judgment, yes, qualifies for fees. Now you're saying no, no fees? Nicholas Q. Rosenkranz: Your Honor, it would qualify in the sense that it would be a final judgment, not an interlocutory order. Whether that's properly characterized as a purely procedural victory or not, I'm not sure. Most ERISA claims are not framed that way. They are usually framed as claims for benefits, not for purely procedural-- Ruth Bader Ginsburg: Suppose the claim were: They're just not processing my application. So, Court, order them to process my application. Right; they're not doing anything; we order then to go process the application. End of case in the district court. Fee entitlement? Nicholas Q. Rosenkranz: --Again, Your Honor, that would perhaps be best characterized as a purely procedural victory even though it's a final judgment and even though it's what the plaintiff sought. Again, in this case, this order was purely interlocutory, and so it's a much easier case. This -- in this case, this was a procedural step on the road to a final judgment. This was not a final judgment at all and not at all what the petitioner sought. Anthony M. Kennedy: The government in response to questions about the significance and the consequences of its position said, oh, this is a unique statute. ERISA -- it's is an ERISA statute. Do you agree that if -- if we rule for you, it would be applicable primarily to ERISA and it wouldn't have an effect on these other statutes? Nicholas Q. Rosenkranz: No, Justice Kennedy, I don't. The Court has oftentimes emphasized that fee-shifting statutes ought to be read in parallel, that we ought to have fewer rather than more fee-shifting standards in the world. And so, presumably, the result in this case would govern any number of fee-shifting statutes of similar language. John G. Roberts, Jr.: What if the parties -- to follow up on Justice Ginsburg's line of questioning, what if the parties decide, look, this case rises or falls on the discovery issue? If we have to go through discovery, it's going to cost us a lot more than to pay you. So we stipulate whatever the ruling is on discovery will decide the issue. In that case, can the party -- can the claimant get fees? Nicholas Q. Rosenkranz: I'm sorry, Your Honor. In this hypothetical, the district court grants the discovery order, but the -- but still holds jurisdiction over the case? John G. Roberts, Jr.: Well, it grants the discovery order, and as a result, a direct result of that ruling, the plan pays benefits. Nicholas Q. Rosenkranz: No, Your Honor. I believe that this Court has rejected the direct results theory and has instructed us to look at the content of judicial judgments, not at their ancillary effects on parties out in the world. Sonia Sotomayor: So what is the difference between prevailing party and some success on the merits for you? The only difference is whether they won on one cause of action as opposed to four? Nicholas Q. Rosenkranz: Your Honor, in Ruckelshaus, the Courts emphasized that omitting words like "prevailing party" or "success" from a statute is significant, but it's not revolutionary, that what it accomplishes is a decrease in the quantum of success required -- the degree, I believe was the Court's language -- but not the type of success required. But it was still-- Sonia Sotomayor: So under Buckhannon, 51 percent only entitles you to fees. And under your view of this statute, you have -- as long as you get 1 percent order, that's enough. Nicholas Q. Rosenkranz: --Your Honor, the -- the Court in Ruckelshaus was speaking of the interpretation of 1970s. At that time, "prevailing party" had been read quite narrowly to require substantially prevailing, and the Court understood Congress to reject that standard in adopting a statute that doesn't include language like "prevailing party". Subsequently, this Court has adopted a much more liberal understanding of the words "prevailing party", so there may not be-- Sonia Sotomayor: So you -- you see no difference today? Nicholas Q. Rosenkranz: --There may still be a difference, but it will be a smaller difference and a difference only in quantity, certainly not a difference in type. The result -- the success still has to be success that you can find in a judgment of a court. Your Honors, if I could -- Your Honors, as a matter of policy, the plaintiffs have argued that this will result in -- that -- I'm sorry. As a matter of policy, the plaintiffs -- or the Petitioner's rule would result in a second major litigation over attorney's fees, and this Court has rejected any such rules. The concern is that the fee-shifting inquiry ought to be simple and easy to administer. The ease of administrability of our rule is that it turns on the contents of judicial judgments. If the Petitioner wins in this case, the policy result will merely be stingier plans. So these are not plans that any private party is obliged to create, and this Court has emphasized that the purpose of ERISA is to balance the interests of beneficiaries, on the one hand, but also the interest in the creation of these plans and the generosity of these plans, on the other. And a fee award under circumstances like this would result in far less generous plans for -- for-- John Paul Stevens: May I ask this question? You rely very heavy on Ruckelshaus, which of course was a case in which the fees were sought to be imposed against the government. Is there a basis for distinguishing on a sort of a sovereign immunity approach for saying that maybe there should be a stricter standard when you're taking money away from the sovereign than when you're taking it away from private litigants? Nicholas Q. Rosenkranz: --Your Honor, I don't think so. The Solicitor General is here arguing that this ought to be the rule, and it would presumably be the same rule even in a statute that applied against the government. Again, this Court has cautioned against a proliferation of different fee-shifting standards. I would think there would be a concern about having a different standard applied to the government than to a private party on -- on similar statutory text. Certainly, no indication in this statutory text-- Antonin Scalia: --Well, it's a trust -- trust law is at issue here, is the government's assertion. Nicholas Q. Rosenkranz: --Your Honor, I agree with you that it seems artificial in a way to apply those -- to apply -- to import those principles entirely. On the other hand, this Court has emphasized that ERISA is informed by trust principles. And under Sprague, the Court emphasized that trust principles would very rarely shift fees in a context like this. So to that extent, I do believe that this provision should be informed by this Court's holding on that point. Just to re-emphasize, Your Honors, what actually happened in the district court below: So the Petitioners sought judgment as a matter of law for benefits, and that motion was denied. Instead, she received an interlocutory procedural order, a remand to her adversary, a private party in litigation, to consider the question again. And, as this Court emphasized, the second inquiry by the claims administrator would be reviewed for abuse of discretion. It could easily have come out the other way, as the district court itself acknowledged. Stephen G. Breyer: You also received -- she also received a conditional judgment in her favor. Nicholas Q. Rosenkranz: The district court specified that if Reliance did not comply with this procedural-- Stephen G. Breyer: She said: Unless this order goes into effect within 30 days, the judgment will be entered for the plaintiff, for her -- for her. Nicholas Q. Rosenkranz: --Yes, Your Honor. That's true, but I don't think that distinguishes this from-- Stephen G. Breyer: Well, she got one judgment in her favor. It was a conditional judgment. I mean, if we're being technical, if we're going to just do this totally on some kind of procedural theory of what's a judgment, what's a judgment in your favor, and we just don't want to look to the merits of it and see what really happened, then why doesn't she win? Because she got a judgment in her favor, okay? End of the matter. Nicholas Q. Rosenkranz: --Your Honor, she didn't actually get a judgment. She got a-- Stephen G. Breyer: Well, let's read the judgment. Let's see. It says -- it says judgment. It says in a -- what is it called? I just saw it here. My colleague had it here. It says -- I think this it. It says "Conclusion" -- it says -- and it's in the conclusion, and it says what happens. And it says it denies, denies, denies, denies. And then it says: "Reliance to act on Ms. Hardt's application, adequately considering all the evidence, within 30 days. " "Otherwise, judgment will be issued in favor of Mrs. Hardt. " Now, that's in a kind of judgment, I guess. It's in an order. So an order saying we'll issue a judgment -- it sounds to me like you could say that's a judgment in her favor. You don't have to, but you could. Nicholas Q. Rosenkranz: --Your Honor, I think that's only -- the district court was only saying what is implicit in most all procedural orders-- Stephen G. Breyer: No. Normally, a judge -- a judge doesn't say: It is ordered that if you do not act within 30 days, there will be a judgment entered in flavor of the plaintiff. That's not a usual thing. Nicholas Q. Rosenkranz: --But, Your Honor, if a party ignores the procedural order of a district court, it does so often on peril of default. So it-- Stephen G. Breyer: I'm just saying, if we're going to be formal and we're going to look to certain words included in -- in certain papers, irrespective of what really happened, don't we have those words in the paper that's relevant here? Nicholas Q. Rosenkranz: --Again, Your Honor, the district court did not decide the merits of this case. The district court offered the possibility that it would enter judgment if something happened in the future. That thing did not happen in the future. There was no judgment in her favor in this case. Again, the issue was remanded to a private party to determine the issue. The grant of benefits on remand certainly could not constitute success on the merits. That was not judicial action at all. That was the action of a private party. Purely voluntary action. Certainly, couldn't constitute a judgment under Rule 54. And then when the case arrived back at the district court, the district court did the only thing that it was left to do, which was to dismiss the case. And those are the actual actions the district court took: denying the motion for summary judgment and dismissing the case. And under this Court's precedents, where we look for success is in those judgments. Those judgments show us no success on the merits for Ms. Hardt. If there are no further questions-- John G. Roberts, Jr.: Thank you, counsel. Mr. Ates, you have 4 minutes remaining. John R. Ates: Mr. Chief Justice, and may it please the Court: I have two points on rebuttal: Under their we must have a final judgment on the benefits on her claim for -- final judgment on the merits on her claim for benefits, that is absolutely foreclosed by this Court's decision in Schaefer, where a Social Security claimant comes forward, shows a violation by the Secretary; it's remanded back to the Secretary; the case is closed at that point. There was no decision on the merits for the benefits, and yet this Court found that was prevailing party. Here, we don't need prevailing party, but moreover, even accepting their theory, it leads to absurd results. There is a provision in ERISA, 1132(c), that gives a claimant the right to seek documents. And yet, they are saying if the claimant is wholly successful to get the plan document from which certain claims you don't even know if you have until you read those plans, they would say it's a purely procedural victory; you cannot get attorney's fees. The whole point of that provision was to require the fiduciary to give the document over so people can understand their rights. Moreover, their final judgment on the merits for benefits rule leads to perverse incentives under ERISA. The plan administrator is incented to deny the first time around, challenge it all the way through the courts, on remand maybe, if they get a conditional judgment, as here, that says if you don't act within 30 days I'm giving you that judgment, they then grant the benefits and the court gets rid of the case, they have succeeded in eliminating the right of claimants to get to court to pursue their rights, because of the cost of litigation. But moreover, here we have a judgment. To be clear, that is not our argument. We had a conditional judgment by the district court sending it back: If you do not act in accordance with law within 30 days, I will enter judgment on this case. We have that, but at the end of the day, it was not a dismissal. They overlooked district court docket 57. There was a judgment entered in Ms. Hardt's favor against Reliance in the amount of attorney's fees. The original order merges into that judgment. We have a final judgment here as well. Although we don't need it under section 502(g)(1), we have it here. This Court should not require a judgment before fees can be awarded. The whole -- and it certainly shouldn't adopt a purely procedural rule out of thin air that's not in the statute. This is a procedural statute. The only way claimants can effectuate their right is ensuring the procedure is followed. That is what we have here. They did not follow proper procedure. They abused their discretion. They breached a fiduciary obligation to the claimant. In these circumstances, under the clear language and clear structure of this statute, this claimant is entitled to fees. The only -- may I finish? John G. Roberts, Jr.: Sure. John R. Ates: The only issue that Reliance contested was whether she was a prevailing party. Knock that leg of the stool, their case fails. Thank you. John G. Roberts, Jr.: Thank you, counsel. The case is submitted. Speaker: The Honorable Court is now adjourned until tomorrow at <ten o'clock>[= 10 a.m.].

William H. Rehnquist: We will hear argument next in No. 85-411, Edward W. Murray versus Joseph M. Giarratano. Mr. Harris, you may proceed whenever you are ready. Robert Q. Harris: Thank you, Mr. Chief Justice, and may it please the Court, two years ago in the case of Pennsylvania versus Finley, this Court said that there is no Constitutional obligation on the States to provide counsel for State prisoners in State collateral attacks on State court judgments. Since 1983, in Barefoot v. Estelle, this Court has repeatedly held that the rules for collateral review of presumptively valid final judgments do not change depending on the nature of the sentence. The decision of the court below, the Fourth Circuit, is flatly inconsistent with these decisions of this Court. The issue before this Court is whether to affirm the judgement of the Fourth Circuit and in the process undermine or overrule prior decisions of this Court. I will briefly address some of the facts in this case, and then explain why we ask this Court to reverse the decision below. The plaintiffs in this case are inmates under sentence of death. They have been tried and convicted of capital crimes in the State courts. Their convictions have been upheld on a mandatory appeal to the Virginia Supreme Court, a mandatory appeal that also includes a statutory requirement of sentence review. They of course had counsel for trial, and on their mandatory appeal. The focus here-- Harry A. Blackmun: You are not thereby suggesting that Virginia is particularly gracious toward prisoners of this kind? It is one of the tougher States in the Union, don't you think? Robert Q. Harris: --Your Honor, I am pointing out that Virginia meets the Constitutional requirements of counsel for the trials and direct appeals to the Virginia Supreme Court. Harry A. Blackmun: That is your basic argument, that you are just within the Constitutional prerequisites? Robert Q. Harris: No, sir, it is not that argument at all. We think that we exceed many of the Constitutional requirements in the process of the trial and the direct appeal, particularly in the sense that in a Virginia direct appeal, the Supreme Court is obligated to conduct that separate inquiry on the proportionality of the sentence, and the excessiveness of the sentence, to decide whether that sentence is appropriate even on direct appeal. Harry A. Blackmun: I am really suggesting that the Old Dominion is one of the tougher States in the Union. Robert Q. Harris: We try to be in some respects, Your Honor. John Paul Stevens: Mr. Harris, in that direct review, does the State Supreme Court review the entire record in every case? Robert Q. Harris: The Virginia Supreme Court reviews the record on the errors of trial that are raised. The Virginia Supreme Court conducts review of the entire record on the independent inquiry on the propriety of the sentence. John Paul Stevens: But not on the merits of the original case? Robert Q. Harris: It will review the errors that are raised by counsel. John Paul Stevens: It does not necessarily review the entire record on the appeal on the merits of the conviction, does it? Robert Q. Harris: That is correct, Your Honor. But the focus in this case is not on the trial-- Harry A. Blackmun: And is that not rather unusual among the States of this country? Robert Q. Harris: --As I understand it, practically every State has a rule isolating review to those claims that are raised by the parties. Virginia has a rule that requires counsel to object at trial and to assign his errors on appeal, and those are the claims that the court will address on direct appeal. Harry A. Blackmun: And of course, your rights of direct appeal are rather limited in the Old Dominion. Robert Q. Harris: Not in a capital case, at all. It is a mandatory, direct appeal as a matter of right. Harry A. Blackmun: But generally, they are. Robert Q. Harris: In other cases, there is an appeal to an intermediary court. Harry A. Blackmun: Whom they recently installed, I might say. Robert Q. Harris: Yes, Your Honor, within the last few years. But again, the focus here is not on the direct appeals, and those procedures are not at issue in this case. We are looking at post-conviction proceedings. We are talking about proceedings that can only occur after a trial and after a complete appeal to the Virginia Supreme Court. For those proceedings in Virginia, every one of Virginia's Death Row inmates has in fact had counsel to prepare, file, and present his petition to the State courts. No Virginia inmate has filed a pro se petition for writ of habeas corpus in the State courts. Now, Virginia does not automatically grant them a right to counsel for their State habeas corpus actions. The State courts have the discretion to appoint counsel upon request for these inmates who wish to pursue collateral remedies. Virginia provides, by State law, a petition for writ of habeas corpus to raise claims of Constitutional deprivation associated with the trial. We do not require the automatic appointment of counsel from the beginning, but in any habeas case in Virginia where a petition is presented that raises a non-frivolous claim with a factual issue, Virginia law is that the court must at that point appoint counsel to represent that inmate in a habeas corpus proceeding. William H. Rehnquist: Are you talking just about capital cases, or about all collateral review? Robert Q. Harris: In all habeas cases. If you raise a non-frivolous claim that would require hearing, the Virginia Supreme Court has required for over 20 years that the trial court must appoint counsel at that point. But the trial courts always have the discretion to appoint counsel at any stage of the habeas proceeding. Harry A. Blackmun: And who determines whether it is or is not frivolous? Robert Q. Harris: The trial court, and it is very similar to the summary judgement inquiry in the Federal courts. We are talking about a claim that would say the legal claim for relief, and looking at whether or not the facts in support of that claim are in dispute. Again, the record in this case will show that that discretion of Virginia's trial courts has been exercised on behalf of Death Row inmates. Death Row inmates have, by some means, communicated to a trial court their desire to file a petition for a writ of habeas corpus. And Virginia trial courts have agreed to appoint counsel and in fact have issued orders appointing counsel to prepare and present a petition for writ of habeas corpus in Virginia. Few inmates, very few inmates, have asked. The inmates in Virginia have relied on a privately set up system of volunteer attorneys. Since 1983, there has been an organization that has been set up to recruit volunteer attorneys to represent these inmates in their habeas corpus actions. They have been successful, but they became fearful that that system was in danger of collapsing, and as a result, they turned to the District court to compel Virginia to perpetuate their preferred system of getting legal assistance. The District court ordered Virginia to do this, and premised this right to counsel on the right of access to the courts. Our position is the right of access to the court in post-conviction proceedings does not include a right to counsel. It is an entirely separate matter, and we know that from this Court's prior decisions. This Court has never suggested-- John Paul Stevens: May I interrupt just a second, Mr. Harris? You rely... you mention the background. There is this independent volunteer organization that has, in fact, provided counsel, and that trial judges have in fact gone out of the way to get lawyers for the inmates in these death cases. But your legal position would be exactly the same if none of that had happened, as I understand your brief. If there were no private organization, if trial judge says well, it is just too bad, we are not going to appoint counsel... that would be Constitutional, I think, under your view. Robert Q. Harris: --I am sorry, I do not think that I understand the question. John Paul Stevens: Well, you have just described two ways in which prisoners in death cases have in fact gotten representation in collateral proceedings, one by the volunteer organization, and two by the judges on occasion appointing counsel. And I am suggesting that under your view of the Constitution, that was not at all necessary. The judge, if there were no volunteer organization, and if the judges never appointed counsel, you would say, that is just too bad. I think that is your position. Robert Q. Harris: I would say that it would not make any difference for this issue. John Paul Stevens: Right. Robert Q. Harris: Because we say there is no Constitutional right to counsel. John Paul Stevens: And it would be perfectly consistent with the Constitution to have all collateral proceedings by prisoners in Virginia handled by the prisoner himself. Robert Q. Harris: Consistent with the requirements that the Constitution does impose, of giving them some means of legal assistance to present their claims. John Paul Stevens: And anything beyond that is simply a matter of grace, in your view? Robert Q. Harris: Yes, Your Honor. John Paul Stevens: Yes. Robert Q. Harris: And in the matter of what this Court has required as some form of legal assistance, that comes under the right of access to the courts. This Court has said that the States are obligated to provide some form of legal assistance to inmates so that they can have an opportunity to present their claims, to get into court with their claims, and to get their claims before a court. In Virginia, if it is a colorable claim, a claim of some substance, they will have counsel to present it. There is no possibility of an inmate litigating a claim himself in Virginia. It will not happen. As far as having legal assistance to get his claims together, to put them in that package and present it to the appropriate court, Virginia provides a wide variety of resources. Bounds talks in terms of a law library or a form of legal assistance to get into court. Virginia gives these inmates law libraries at the institutions. Virginia gives these inmates a system of legal assistance in the institutions. Lawyer assistance... lawyers are appointed for each of the institutions where these inmates could possibly be, to counsel and assist, to help them under the instructions that they have had now since-- John Paul Stevens: But do you think those lawyers are Constitutionally required, or is this again just something that Virginia does as a matter of generosity? Robert Q. Harris: --Virginia has chosen to give these inmates more than what the law requires. John Paul Stevens: My question is, do you think Virginia could have chosen otherwise? Robert Q. Harris: If Bounds means what Bounds says, yes. We have chosen to go beyond. We have chosen to give them law libraries, we have chosen to give them legal assistance. There is a method to have court-appointed counsel for individual representation for each one of these inmates. Often-- Byron R. White: Because you have to do something. Robert Q. Harris: --Yes, Your Honor. Byron R. White: You have to have either a law library or some kind of legal assistance. Robert Q. Harris: That is correct. And we give them both. We give them beyond that a real opportunity to have independent counsel appointed to represent them. Now, nothing in Bounds, nothing in the cases before Bounds, Johnson v. Avery, Ross v. Moffitt, ever suggests that there was a right to counsel and a right of access. Two years ago, in the Pennsylvania v. Finley case, this Court made it perfectly clear that the Constitution does not require States in their own proceedings, collateral proceedings to their criminal cases, to provide counsel for the inmates in those proceedings. The distinction here-- Harry A. Blackmun: That was not a capital case. Robert Q. Harris: --It was not, Your Honor. The distinction here is not the sentence, the distinction here is the nature of the proceedings. They are collateral. Harry A. Blackmun: Do you really believe that? Hasn't this Court said many times that death is different? Robert Q. Harris: This Court has refused to create special rules in post-conviction proceedings. I think I agree, this Court has on many occasions said death is different, and each time, this Court was looking at the trial, and the sentencing process at the time of trial. As far as-- Harry A. Blackmun: Why do you think that a majority of the States with capital punishment have, by statute, created a right to have counsel in matters of this kind? Robert Q. Harris: --I do not think that is correct. I will point out that in the-- Harry A. Blackmun: I think there are 19. Robert Q. Harris: --In the plaintiffs' briefs submitted to this Court, it is indicated that, I believe, 18 States have a method of providing automatic appointment of counsel in all habeas cases. We are not talking about capital cases, but in all habeas cases. In many of those, at least six of those, it is after something has been filed that counsel is automatically appointed. Byron R. White: The point was just that they do not always provide counsel to help people prepare a habeas petition. Robert Q. Harris: That is correct. Several of them require the prior filing of a petition, and then there will be automatic appointment of counsel. In many respects, that is what we have already available in Virginia. With the legal assistance available to the inmate at the institution, he can file a petition raising some colorable claim. He is never locked into that petition. Virginia has a policy of liberal amendment of its petitions to allow inmates, if they have the initial petition with a colorable claim, if the court appoints counsel to represent them... they can do further inquiry and at that time develop their claims further. They are not frozen in time to that initial document that they present to the State courts. The courts below attempted to distinguish Finley because it was a death case. It was not a death case. But I think the issue is closed, that the Constitution does not... this Court has made it clear... the Constitution does not require a separate set of procedural standards or procedural review for capital cases. This choice has made the decision to focus on the trial, to focus on the sentencing. That is where the determination is made that these inmates are going to be convicted. That is where the decisions are made of guilt and innocence. That is where the decision of sentence is made. This Court has focused on that forum. That is the forum our legal system has created for deciding these issues. This Court has not decided to require additional proceedings to constantly review these matters. The courts below ignored the rulings of this Court, and created a new Constitutional right. The procedures that are in place in Virginia are severely underutilized. They have never been used by these inmates. They have instead preferred to rely on an alternative way of getting counsel. The District court has created a new right to counsel to solve a problem that has not been shown to exist. These inmates have all had counsel. No inmate has filed a pro se petition. But there is a problem if a Constitutional right is created. The difficulty that we see with a Constitutional right in habeas corpus proceedings is that we are inviting another complete round of litigation challenging final judgments, presumptively final judgments, presumptively valid final judgments, of the State courts. We are inviting inquiries into the competence of habeas counsel. We are inviting another separate proceeding on an issue that is wholly collateral to the sentence itself. Rather than discard this prior Court's decisions, and rather than seek to create a new right to counsel, we would ask this Court to reaffirm its prior decisions. We would ask this Court to reaffirm the principles of comity, of recognizing the interests of the States in its own proceedings, and the interest of finality in recognizing that presumptively valid judgments are entitled to that respect. And we would ask this Court to reaffirm those prior principles and reverse the decision of the court below. John Paul Stevens: May I ask just one other question on this notion of finality? No matter what you do, it seems in these death cases that sooner or later somebody does file a collateral proceeding, and even... it has happened in almost every death case that I am familiar with, anyway. It is very rare that you do not have these proceedings. I am just wondering if you did have a procedure whereby you automatically appointed counsel promptly. Don't you think that might tend to accelerate the disposition of these proceedings, rather than waiting until the inmate can put together the kind of papers that they generally institute these proceedings with? Robert Q. Harris: There may be some incidental shortening of the time at that very initial stage if the inmate were to make a request for counsel. The problem is, the inmate has no incentive, other than the fact that we might set an execution date if he does not file. Byron R. White: Well, that is quite an incentive. Robert Q. Harris: It is quite an incentive, and it is one that we prefer not to do hastily. In the past, when a volunteer attorney has been contacted, or when we talk to any attorney who has indicated that he was representing these attorneys, all we have done is to find out, do you intend to file promptly? And if he says he does, we do not rush out and set an execution date. If he files promptly, it will be handled in the usual-- John Paul Stevens: Well, I was thinking a little bit ahead. The papers suggest that the volunteer system is on the verge of breaking down. I do not know. I understand there are quite a few Virginia lawyers who work very hard in some of these cases, and there is not an inexhaustible supply of counsel who will take the cases without being paid. I was just thinking, if this system does break down, you may actually find yourselves creating a system that might have more delay built into it than if you had prompt and automatic appointment. Robert Q. Harris: --Well, again, we think we may in fact have a system that allows for prompt and automatic appointment, if the inmate simply asks the circuit court to appoint counsel. The circuit court has the discretion. We have represented in the record in this case, we are willing... the Office of the Attorney General is willing... to join in such requests. Byron R. White: That is not going to help much. The real problem is having help to get the petition filed in the first place. Robert Q. Harris: All I am talking about is filing a motion for appointment of counsel, a one-page document that says, "Get me a lawyer". Byron R. White: How do you file a motion... you mean, even before anything else is filed? Robert Q. Harris: We have said, the trial court has the discretion to do that very thing. And we have lawyers in the institutions who are certainly capable of drafting a motion for appointment of counsel to get these inmates into court. William H. Rehnquist: But the trial court has discretion to grant or deny such a petition, I take it? Robert Q. Harris: There is no guarantee that the trial court will do it in every instance. I would suggest that it is-- Anthony M. Kennedy: If we ruled in your favor, would it be acceptable or recommended that we relax the requirements of for cause showing on Federal habeas, so that if it is a pro se litigant we are less strict about procedural bar in Federal proceedings? Robert Q. Harris: --I don't know the Court needs to look at that issue for one particular reason. The evidence in the record in this case was that the plaintiff's expert was unaware of any inmate who had ever litigated a habeas corpus petition pro se in a death case. There is not this nationwide crisis of pro se inmates litigating death sentences. The expert testimony in this case was that everyone had had a lawyer, and we note from the record in this case that everyone in Virginia-- Anthony M. Kennedy: Well, but you are asking us to adopt a rule that you do not require a lawyer. That is what you are asking us to do. Robert Q. Harris: --That is correct, Your Honor. The existing rule is that there is no right to counsel, so I would ask that that rule be retained. Antonin Scalia: Mr. Harris, I do not understand what you have been telling us about all you have to do is file a paper with the District Judge in Virginia, saying I want counsel. And then it is within his discretion to grant counsel or not? Robert Q. Harris: That is one of the means of obtaining it. Antonin Scalia: When that paper is filed, he does not know anything? Robert Q. Harris: That is correct. Antonin Scalia: On what basis does he exercise his discretion? I like the fellow's name, I do not like the fellow's name? What does your office do when it goes in to urge that the motion for counsel be granted or not granted? All he knows is the person's name, and that he is on Death Row, I suppose. Robert Q. Harris: The motion would be filed, in all instances, with the judge who is the presiding judge at trial. We are talking about a judge who has heard of this inmate before, in other words. Antonin Scalia: I see, the judge who conducted the trial. Robert Q. Harris: It would be the very same judge who tried the case. What we have said is that if that inmate makes it known to the trial court that he is interested in pursuing habeas corpus relief, and that he would like to have the appointment of counsel to represent him and to help him file his petition for writ of habeas corpus, that we have, for our own reasons, as you have indicated, expediting this matter in some way, we will join in that motion, and get the matter going. Antonin Scalia: To have counsel appointed? Robert Q. Harris: Yes, Your Honor. Antonin Scalia: So long as he files? Robert Q. Harris: It is more convenient for us to deal with a lawyer representing an inmate in a death case than it is a pro se inmate. And it is certainly going to be more convenient for the court considering the case. And it is for those reasons we expect that the trial courts will in fact grant these motions. I agree, it is discretionary. We cannot guarantee the courts could do it in every case. But we can guarantee that that inmate will have available to him, at the institution, assistance to get into court and ask. And we can also guarantee that if that Court should, for whatever reason, decline to grant him that discretionary appointment of counsel, that he still has available to him back at that institution legal assistance in excess of what Bounds requires to file a petition raising claims. Presumably, if he has a valid claim... we cannot guarantee he is going to have a valid Constitutional claim... our system is geared to make certain that he doesn't. But if he has a valid claim, it will be heard. If he has a claim that would require any kind of hearing, he will have counsel. John Paul Stevens: May I ask you, on these appointments by the trial judges, pursuant to this discretionary authority, are counsel compensated in the same way as they are in the original trial itself? Robert Q. Harris: There is no cap on their compensation. They are compensated in the amount deemed reasonable by the trial court. John Paul Stevens: But it is the same procedure, basically, as it is for the trial itself? Robert Q. Harris: That is my understanding. From the testimony in this case, ordinarily vouchers would be submitted indicating the time that they spent, and then the Court would allow a fee for that time. John Paul Stevens: But the fact of the matter is that most of the inmates have instead used the volunteer organization, have they not? Robert Q. Harris: We only have evidence in this record of three instances where inmates have ever even sought appointment of counsel before a petition was filed. In two of those instances, the trial courts appointed counsel. John Paul Stevens: And what happened in the third? Robert Q. Harris: In the third, the trial court did not. John Paul Stevens: I see. Robert Q. Harris: The record in this case contains the order from the trial court in that case. We had defended in the lower courts on the basis that he had counsel at the time that motion was made. There are some questions to be concerned about that case, but still, there is nothing in the record to indicate that that inmate ever made any use of the resources available to him at the institution. Thurgood Marshall: Is this group of lawyers different from the group that tried the cases? Robert Q. Harris: Yes, Your Honor, in every case. It is not the same as the trial attorney. Thurgood Marshall: I was wondering about that. They say the lawyer was inefficient because I was convicted. You do not have that problem? Robert Q. Harris: Inmates often do raise that very claim, yes, Your Honor. Thurgood Marshall: But it is... it is still this rumor or possibility of a shortage that does not exist as of now. As of now, everybody gets a lawyer who wants one? Robert Q. Harris: As of now, every inmate has had a lawyer. Thurgood Marshall: Right. Robert Q. Harris: As of now, we think there are systems in place that will make certain that any inmate who makes a request will get a lawyer. It is not guaranteed. It is possible that he may have to rely on the resources available to him at the institution. But we would say, that institution is much more than is necessary for him to get his claims in front of the Court. In any case in Virginia, whether it is a death case or any other case, if the inmate makes some colorable showing of a claim, counsel will be appointed. William H. Rehnquist: Mr. Harris, you may save the rest of your time for rebuttal. Mr. Zerkin? Robert Q. Harris: Thank you. Gerald T. Zerkin: Mr. Chief Justice, and may it please the Court, in their effort to conjure up the specter of additional rounds of litigation in death penalty cases, the Petitioners have misrepresented the nature of the Constitutional right recognized by the District court, and exaggerated the scope of the relief granted by it. In fact, the courts below did not rely upon or create a right to counsel. Rather, the courts simply applied the rule in Bounds and its progeny to the particular circumstances of Virginia's Death Row and of capital post-conviction litigation, and ordered only a small-- William H. Rehnquist: Which gave each of them a right to counsel? Gerald T. Zerkin: --Which gave each of them attorneys to assist in the preparation and investigation of their claim and the preparation of their petitions. William H. Rehnquist: What is the difference between that and a right to counsel? Gerald T. Zerkin: Well, it is different in terms of right to counsel being a term of art that has certain implications under the Constitution. That is what they have attempted to do in this case. This Court recognized-- William H. Rehnquist: What is the difference between saying that you do not have a right to counsel, or in saying that you do not have a right to the kind of attorney that is to be appointed for you in this case? What is the difference? Gerald T. Zerkin: --The difference has to do with the fact that we do not have the Court creating a right which is somehow enforceable in a collateral proceeding on a new habeas corpus, which is the specter which the State is attempting to create here. William H. Rehnquist: How do you know it is not enforceable in the new habeas proceeding? Gerald T. Zerkin: Well, theoretically... I mean, it is not as a conceptual matter. The performance of the habeas attorney, even assuming that he does a poor job, does not go to the validity of the original sentence and conviction. Therefore, it is not even a subject of a new habeas corpus action, because you are... when you are challenging the effectiveness of habeas counsel, you are not challenging the validity of the original sentence and conviction. So, you cannot bring a new habeas action. Indeed, the Fourth Circuit specifically dealt with this issue in the Whitley case. Mr. Whitley raised... brought a second challenge in which he claimed the ineffectiveness of his habeas counsel. In that second Whitley case... it was a successor petition... the Fourth Circuit said you cannot do that, and Mr. Whitley was in fact executed on schedule. So, the Fourth Circuit jousted with this and resolved it already. Now, what is different here is-- Anthony M. Kennedy: So, in your view, the right which you are claiming, or the relief that you are claiming, would be satisfied by the courts appointing incompetent counsel? Gerald T. Zerkin: --No, sir, we do not say that. The Court... we believe that the level of assistance that can be provided, that is being provided in any Bounds case can go so low that meaningful access is not being provided. If I might give an example, in the McCall cases to which this Court ordered an inquiry, a response by the State as to the right to counsel in preparing a habeas petition, the institutional attorney at Mecklenburg, who was in fact partly the subject of this litigation, filed a habeas petition that included a non-Federal claim. Now, I would suggest to the Court that that is not meaningful and effective assistance of counsel. So-- Anthony M. Kennedy: So part of the relief you are requesting is a Constitutional rule that capable, competent counsel be appointed to give rights of access to the court. Gerald T. Zerkin: --Yes, In death penalty cases on Virginia's Death Row. That is correct. William H. Rehnquist: If some other district court in North Carolina were to reach different conclusions, Death Row inmates in North Carolina would not have any right to counsel. Gerald T. Zerkin: The question is whether or not-- William H. Rehnquist: Well, can you answer my question? Gerald T. Zerkin: --The result would... it depends on the facts of the case. We have a two day trial here. William H. Rehnquist: Well, look. I asked you a question that I think is capable of being answered by yes or no. Please try to answer it that way. Gerald T. Zerkin: I will try. William H. Rehnquist: If a district court hearing evidence in North Carolina had reached a different conclusion than the district court in the Eastern District of Virginia, and said no, there is not any right to counsel of the sort that Judge Merhige found, then the rule in North Carolina would be different than the rule in Virginia. Gerald T. Zerkin: No, sir, my answer to that is no. The reason is because the issue first of all was an issue of access, and if a system existed in North Carolina, which in fact it does, as a result of the Bounds litigation itself and the Fourth Circuit's most recent affirmance of the district court's action in Bounds which provided attorneys, then in fact if that access is being provided, then the violation of the right would never occur in the first place. William H. Rehnquist: Well, supposing the district court in North Carolina said we think it is enough that there are law libraries like Bounds required at the institutions... even in the case of death penalty inmates... so we do not think there is any necessity for having appointed counsel. Gerald T. Zerkin: If that decision was supported by the factual record in the case, then it could reach that conclusion. The problem here is-- William H. Rehnquist: So you would have a right to counsel in Virginia, but not in North Carolina? Gerald T. Zerkin: --I disagree with the premise that we are dealing with a right to counsel. That is my difficulty in asking the question directly. We are dealing with access, and the question would be whether or not the fact... the district court's findings in North Carolina... that there was access, and therefore no violation of the right to access under Bounds was supported by the evidentiary record in that case. That is the very confusion that they create, and that is created by defining this as a separate right, that is, the right to counsel. What has happened here is that the court looked at Bounds, looked at the specific circumstances, determined that there was a violation of Bounds under the facts, and then using its discretion as a court of equity, fashioned a remedy. In fact, what the district court did was, it did not even order the nature of the system that the State had to give. All it said was, the only adjustment we want you to make is, appoint counsel pre-petition. How you go about arranging that system is up to you. It did not dictate any of that to the State. The State in fact, did not respond except by providing a memo to circuit court judges that said, "If you get a request, appoint counsel. " Now, the petitioners... one of the problems here, and we see it so far in the argument, is that they have attempted to ignore the factual record in the case. The Petitioners have insisted throughout this litigation that institutional attorneys are available to prepare and file habeas petitions, and thus they were meeting their affirmative obligations under Bounds to provide meaningful access. In fact, at the penitentiary where death-sentenced inmates are housed entirely separated from the rest of the prison population during at least the last 15 days... the critical last 15 days before their execution... the institutional attorneys at the penitentiary did not even appear at that-- Antonin Scalia: Excuse me, why are the last 15 days critical? I mean, I would assume that if there has been a mistake in your conviction, you want to get that before the courts as soon as possible. Gerald T. Zerkin: --Yes, I would agree, Your Honor. The reason that it is critical-- Antonin Scalia: I mean, I am sure that every day is more important as it gets closer and closer, but I do not see why, legally, it is more critical. Gerald T. Zerkin: --Well, the reason that I just said it is from what Your Honor just suggested, which is that if a petition has not been filed, then obviously that last period of time is the most critical, because time is running out. Antonin Scalia: But it should have been filed. I mean, the critical time is the time before that 15 days. Gerald T. Zerkin: I agree, and unfortunately the access is not being provided at the earlier stage to ensure that, either. Antonin Scalia: Just because then are housed in a separate part of the facility during the 15 days before the date of execution? Gerald T. Zerkin: No, sir, that does not... in itself-- Antonin Scalia: What is the average space between the date of conviction and the date of execution? Do you have any idea what the average is? Gerald T. Zerkin: --No, but typically what happens is-- Antonin Scalia: Six months? Gerald T. Zerkin: --No, less. Less. Typically what happens is that by statute it has to... the date must be 30 days after the date is imposed. You have to give 30 day leeway. Typically what happens is that after affirmance on direct appeal, sometimes prior to denial of cert by this Court, if cert has been requested, sometimes after the inmate is brought back before the circuit court judge, and a date is set. I would suggest that it is more like 90 days than it is to 180. But the difficulty is that the access is not being provided at Mecklenburg on Death Row itself before that time. And the facts in the case amply demonstrate that. The-- John Paul Stevens: Mr. Zerkin, before I lose the thread of your thought, you never did tell us what happens in this last 15 days. Gerald T. Zerkin: --What happens in the last 15 days is, he is in the death house, isolated from the rest of the population at the penitentiary. There are... there was a period of three months where the institutional attorneys assigned to that facility did not even appear at the institution. He has no access to a law library at all. So, at that point, no access is being provided in any fashion. In addition, at Mecklenburg, prior to that... and what the Petitioners in this case ignore is the fact that the institutional attorneys had informed the inmates that they did not do death cases. In fact, the record shows that Mr. Giarratano filed a grievance concerning the lack of assistance for Mr. Boggs and for Mr. Watkins, and that that grievance was ignored. In fact, neither of those inmates even had a complete trial transcript, and the institutional attorney did not even attempt to obtain Mr. Boggs' transcript during the pendency of this action. Equally important, the district court found as a factual matter that even assuming that institutional attorneys are available, given the nature of death penalty litigation, these inmates need more than the sporadic assistance of talking law books to ensure meaningful access. Byron R. White: Well, if Virginia is not living up to its duty under Bounds to provide access to these Death Row people, I would suppose that it is also falling its duty under Bounds to non-capital inmates. Certainly I would say a fortiori that they are not. Gerald T. Zerkin: Not necessarily, Justice White, and the reason is that... and they may be. They have something like eight attorneys for 2,000 inmates. But the reason that it does not necessarily apply is because the institutional attorneys, as to Death Row, have told the inmates that they do not handle capital cases. They have not told that to the population at large, but the evidence establishes that they did tell that to the Death Row inmates. We also know that as to Death Row, Mr. Giarratano filed a grievance about the lack of held from institutional attorneys, and that that request was denied. Byron R. White: Well, what about the library? Gerald T. Zerkin: The... at Mecklenburg, the problem with the library is that the access is limited to two and a half hours twice a week. Now, in a normal... and this is what is critically different about death penalty litigation... in a normal case where an inmate has a term of years to prepare his habeas petition, two and a half hours twice a week may give him enough time to prepare a petition over the course of a year. This inmate is going to be dead in 90 days. He does not have... he cannot take that two and a half hours twice a week and stretch it out for however long it takes for him to prepare a petition. If we are dealing with a population in particular which has a lower intelligence level than the general population to begin with, what we end up with... and even without that, but particularly with that... it is absurd to think that that inmate, given the complexity of capital litigation, can possibly prepare a meaningful habeas petition during that 90 day period when on top of everything else, he has the threat of execution hanging over his head. It is difficult enough for us to sit down in a law library that is nice and quiet and figure out capital litigation. You are asking this man with the clock ticking, who has no education, to prepare a habeas petition within 90 days. Sandra Day O'Connor: Counsel, do we have a situation where a Death Row prisoner has asked the institutional attorney for help and been refused? Gerald T. Zerkin: Yes, Justice O'Connor, we do. In fact, we have-- Sandra Day O'Connor: Is that this case? Gerald T. Zerkin: --Yes, we do. In fact, we have more than that in this case. And Mr. Washington's case is perhaps the best example. Mr. Washington, in fact, did everything that they suggest and he came up empty. He not only... he did not write to the court, he appeared in court, in front of the sentencing judge on the date his execution was being set, and he said, through his attorney, who stated to the judge that he was not going to represent him on habeas... in fact, he was not going to represent him on habeas because the Assistant Attorney General had told him he could not, because he had been trial counsel. He made the motion at that time for appointment of counsel, and the circuit court judge denied the motion on the very specific grounds that it is not available. The appointment of counsel for habeas is not available in Virginia until an evidentiary hearing is granted. So, in fact, when counsel suggests that this does not happen, in fact it has happened. Mr. Washington's situation is actually even worse than that, because his situation was... Mr. Giarratano filed this case pro se, this case, prior to the Washington situation reaching that crisis. Mr. Giarratano wrote to the district court judge about Mr. Washington's situations, and that was treated as an amendment to the pleadings. The AG's office at that point was served with it. They knew that Mr. Washington wanted counsel, that he had been denied counsel, and that he was receiving no assistance... and yet no assistance was provided. In fact, Mr. Washington was then transferred, and here we get to the critical 15 days, because time... he still did not have access. He goes to the penitentiary, and he continues to tell the Attorney General's office, who is supervising the death house, that he wants counsel... he wants to proceed. Antonin Scalia: Of course, we have never said that he had to be given counsel, have we? We said that he had to be given access. Gerald T. Zerkin: But he has no... he does not even have the assistance at that point of an institutional attorney to assist him in preparing. Remember this... part of their position is that the system, what system exists, they say all you have to do is-- William H. Rehnquist: We will resume there at one o'clock. 0 [Recess.] Mr. Zerkin, you say resume. Gerald T. Zerkin: --Thank you, Chief Justice Rehnquist. I believe I was attempting to respond to Justice O'Connor's inquiry concerning the facts of a request for assistance from the institutional attorneys, and what has come of all of that. As part of that, I wanted to point out, and again in the record, and emphasize that this was tried on the facts, and there is an ample factual record in this case. Of course, we have been through Mr. Washington's requests for counsel when he appeared in front of the trial judge, and it should also be noted that Mr. Washington has an I.Q. of 69. In addition, it should be noted that contrary to counsel's suggestions this morning, the Attorney General did not join in the motion in front of the circuit court judge when Mr. Washington made the request for counsel. In fact, the attorney who was present was silent through that, and sat silently while Mr. Washington was denied that appointment. Although in the original trial record we were dependent upon the order that is part of the Appendix, just the other day the State lodged with this court the actual trial transcript of the hearing in which Mr. Washington was denied counsel. And the Court will see that in fact our scenario of what happened there is very accurate. In addition, however, Mr. Giarratano had talked to the institutional attorney specifically about helping Mr. Washington. The institutional attorney did nothing to assist him. Subsequently, of course, Mr. Washington was transferred to the State penitentiary, and the general rule for the institutional attorneys at the State penitentiary is that these, the assistance they are to provide, is not intended to be very complex. Indeed, the general rule is that they are only supposed to devote one hour to an inmate. In fact, while Mr. Washington was there, the institutional attorneys did not visit the institution and did not know... did not know... that Mr. Washington was present, despite the fact that he continued to indicate, and the Attorney General knew, that Mr. Washington wanted to proceed with habeas corpus. In addition, Mr. Kulp, the senior Attorney General in charge of capital litigation, testified at trial that they would indeed have executed Mr. Washington even though no papers were filed on his behalf, and even though no volunteer attorney was forthcoming, and clearly even though no institutional attorney was brought down to assist him, and even though clearly he had no access to a law library. Mr. Giarratano also filed a grievance concerning Mr. Watkins and Mr. Boggs, the intervenor plaintiffs in this case. And Mr. Boggs and Mr. Watkins remained without any assistance from the institutional attorney for a year, even during the pendency of this lawsuit... so even while they knew that this was at issue, for a year they remained without any assistance, and indeed the institutional attorney visited them at their cell, obtained part of the record, and did nothing more. As I indicated before, in the case of one of them, he did not even attempt to get the completed transcript. At trial, Judge Merhige asked him about that, and he said, well, at some point I am going to have to do that. Now, the only reason that this dragged on for this year was because this case was pending at the trial level, and so no one proceeded to set execution dates for Mr. Boggs and Mr. Watkins while they were receiving none of this assistance, because of the pendency of this case. However, it is clear from prior practice, and it is clear from the experience of Mr. Washington that had this case not been pending, and even though they were receiving no assistance, that the State would have proceeded to set execution dates and would have proceeded in fact to execute them. In addition, we have the instance of Mr. Evans, Wilbur Evans, who proceeded Mr. Washington on Death Row. Mr. Evans got as far as three days before being executed. He, too, was in the Death House of the penitentiary, and a volunteer lawyer appeared and filed papers on Mr. Evans' behalf. What is significant about that is that subsequently, as part of Mr. Evans' habeas petition, the State confessed error. His sentence was reversed not merely because he won through litigation. The State actually confessed error in Mr. Evans' case, and yet they were prepared to execute him at that point, even though he had no assistance. Mr. Giarratano, in addition, while he was in isolation asked for the assistance of the institutional attorney, and also asked for access to the law library. He was refused as to both of those. He received neither the assistance of the institutional attorney, nor was he allowed access to the library. Antonin Scalia: What was the error that was confessed? That was Evans' case? Gerald T. Zerkin: Yes, Your Honor. The error-- Antonin Scalia: The merits error, or what? Gerald T. Zerkin: --As to... they had relied upon convictions from the State of North Carolina that were invalid. Antonin Scalia: Oh, so it went to the sentencing? Gerald T. Zerkin: Yes, sir, and he received new sentencing. That is correct. There is another particular factor that supports the district court's decision that makes death penalty litigation completely different from other litigation, and that is the procedural need to obtain stays in order to litigate your claim. I mean, you cannot have meaningful access if you do not obtain a stay in the meantime. And Justice Scalia has questioned the relevance of this last 15 day period when he was at Mecklenburg before that. I would suggest two responses to that. Which... the first one is, of course, that they were not receiving access while they were at Mecklenburg. But the other is that it may well be that once... even if he has received some assistance prior that it is necessary to obtain a stay, and it may very well be within that last 15 days. Now, something critical happens here. The attorney who is providing the advice at Mecklenburg, and is allegedly helping to prepare these papers, even though in fact we know they do not... he gives up jurisdiction over this inmate when this inmate is transferred to the penitentiary. So even assuming that he is beginning to work on this case, he throws up his hands as soon as the inmate leaves and is sent to the penitentiary, and now, 15 days prior, an institutional attorney who is supposed to devote one hour to a case, who has no prior knowledge of this inmate, now must pick up the ball, presumably, somehow, even though there is no explanation for this, get the work product of the institutional attorney at Mecklenburg, if there is any, and proceed to obtain this stay and get this habeas petition filed if it has not been filed already. It is also significant to this kind-- Antonin Scalia: Let me ask you... I meant to ask you earlier, when somebody on the other side made the objection that you will have a challenge to whether the counsel you had was adequate. What is your response to that... to an endless series of yes, you gave me access, but with counsel that was not really good enough counsel, and therefore I did not have access, and therefore I am entitled to do it all over again? Gerald T. Zerkin: --Well, as I indicated to Chief Justice Rehnquist, that does not result in a new habeas petition, because theoretically that is not a basis for habeas corpus. What-- Antonin Scalia: What does it result in, then? Gerald T. Zerkin: --What it could result in would be what would exist even at the present time, which would be a claim that he had been denied access under Bounds. It could be done in the context of 1983. Now, what is interesting about that is-- Antonin Scalia: Yes, except that the basis for that Bounds claim would then be the inadequacy of his counsel, right? Gerald T. Zerkin: --No, I disagree with that. I think that the basis of that would be within... under the standard of meaningful access, which I think is very different from a standard of effective assistance of counsel... that could be raised. But even-- Antonin Scalia: Well, I do not understand that. Wait a minute. You-- Gerald T. Zerkin: --The standard-- Antonin Scalia: --Could you give him ineffective counsel, and you think that would be adequate? Gerald T. Zerkin: --I think that the Constitutional standard of ineffective assistance of counsel, and the standard for providing meaningful access, are not necessarily the same. I think, in fact, that they are different. I think that there is a lower standard as to the performance of providing access. Antonin Scalia: Maybe you do not need counsel at all, then. Gerald T. Zerkin: Well, we think clearly that you do need counsel, and there are a number of reasons for that. Antonin Scalia: But not necessarily competent counsel? Gerald T. Zerkin: Well, we would like to have competent counsel. Antonin Scalia: But it is enough if he is incompetent? Gerald T. Zerkin: No, we would not say he is incompetent. Antonin Scalia: But incompetent counsel does not have to be counsel. You can have competent non-counsel who is incompetent counsel. Gerald T. Zerkin: Your Honor is drawing a line distinction that says attorneys are either one or the other, and I suggest to the court that within the concept of meaningful access, there are certain things which that attorney must do in order to provide meaningful access in a capital case. He must review the record. He must examine the briefs. He must interview the inmate. He must talk to the trial counsel, so that he can develop claims of ineffective assistance. That is particularly important in Virginia, where the Virginia Supreme Court does not review the entire record for error. Therefore, as this Court noted in Kimmeiman, it is only an attorney who is likely to be able to see claims of ineffective assistance of the trial counsel. We believe that the system that should be set up... and again, Virginia has not-- Antonin Scalia: But nonetheless, after the habeas proceeding is completed-- Gerald T. Zerkin: --Yes. Antonin Scalia: --With counsel that has been provided somehow, there would still be a claim remaining that that proceeding was itself inadequate because you would not call it ineffectiveness of counsel, you would call it-- Gerald T. Zerkin: Lack of access. Antonin Scalia: --Lack of access. Gerald T. Zerkin: Yes, there would. And what is interesting then is how that-- Antonin Scalia: But you would not need counsel for that last proceeding? That would really be the last one. Or would you need counsel for that one, too? Gerald T. Zerkin: --No, sir. What is interesting about that is that that would then fall within the class action order that is part of this case, and so the issue of whether or not that inmate had received access would be defined in terms of whether or not the Petitioners in this case were complying with the order of the district court that required them to provide access. So, actually, the advantage of it is that rather than simply having any inmate who even now has the ability to bring a 1983 action claiming that he has been denied access... that in fact, the results of that, that all of those on Death Row would be consolidated within the scope of this action, and it would... the question would be whether or not the order of this district court was being violated. So, in that sense, I think that in fact it consolidates them, rather than creating additional problems. William H. Rehnquist: If you found that the order was being violated, then I suppose all capital sentences would be stayed? Gerald T. Zerkin: No, Your Honor, only as to... only as to an inmate who was immediately facing execution, and as to-- William H. Rehnquist: How would you define "immediately facing execution"? Gerald T. Zerkin: --Well, I think within the standard definitions of what one is allowed to... the basis of a temporary restraining order or a preliminary injunction. If we determined that as to a particular inmate, he was not receiving access, then indeed it would be our obligation as class counsel to file an appropriate motion with the district court to indicate that this inmate was not receiving that counsel. Nothing can prevent anyone from filing a claim. I think the legitimate concern... the legitimate concern is whether or not the ability of the inmate to make a claim that he is not receiving access will result in additional proceedings and a delay of the execution. That is what this court has repeatedly indicated it has a problem with. The question is not whether he can file it. The question is whether or not he can stave off the execution by doing it. We know, in fact, from Mr. Whitley's case that he failed. He was executed on schedule. That would seem to be the concern. Now, the problem here is that what is being raised are problems which the State has within its power to prevent... that is, rather than simply doing what they did, which was in response to the judge's order, which was issuing this memorandum to State circuit court judges and then throwing up their hands as to any further responsibility... if they set up a system which indeed assured that these institutional attorneys would assist, that had some monitoring aspect of it, then indeed they could avoid the very problems that the Court is concerned with. The reason that those problems potentially exist is that Virginia has been totally non-responsive to the district court's order. In fact, what is interesting in this case from the papers filed that are part of the Appendix, that were filed in the Fourth Circuit in connection with the motion to stay the mandate is that even in response to the district court's order, what it required was that I had to repeatedly write letters to the circuit court judges reminding them of Judge Merhige's order, and asking them to appoint counsel. They did absolutely nothing to effectuate the order of the district court. So, these theoretical problems are within the power of the State to prevent. The mention... one of the problems that we have here is that death penalty litigation does not necessarily proceed on the orderly course on which other litigation proceeds, and this Court is well aware of that. One of the problems is that if a stay is denied by a State circuit court judge, it is necessary to proceed at a higher level State court, or in Federal court, in order to obtain a stay in order to litigate those claims. If you do not have an attorney monitoring that, bringing the motion for a stay to the attention of the judge... indeed, in Virginia, circuit court judges still circuit-ride. We have under the code circuits that have 10 separate counties and two judges. There is no automatic provision for any of these filings to be brought to the attention of the circuit court judge. Indeed, if the order is entered, the inmate has no way to even know that it has been entered. He has no basis for knowing at what point it is necessary for him to prepare and file papers either in the Virginia Supreme Court or in the United States District Court. None of this can be done without an attorney, and it is applicable only to death penalty cases. Now-- Byron R. White: Well, did the district court order cover help, legal help, in filing Federal post-conviction writs? Gerald T. Zerkin: --No, Your Honor. That problem has been solved by virtue of the passage of the anti-drug bill, in which the Federal Courts now, under that statute, will appoint counsel in Federal habeas upon request in any death case, State or Federal. So, the district court denied that. The district court envisioned that that State habeas attorney would in fact file the petition in Federal court and the Federal court would then appoint and the Federal Government would pay for that. But that problem has been taken care of now. Byron R. White: I suppose then that the inmates in Virginia could go right into Federal habeas if they do not get any help? Gerald T. Zerkin: Well, it creates an interesting dilemma, and it is somewhat responsive to what Justice Kennedy asked before. That is, imagine the chaos of this, that not having any access into State court. The inmate writes a letter to the district court and says appoint me counsel so I can proceed on Federal habeas. They appoint counsel. This attorney, who has now been appointed under the Federal statute for Federal court now has this host of unexhausted claims. Is that attorney now supposed to proceed either under payment by the Federal Government or pro bono, or is he supposed to simply say, "That is too bad. " "You have these legitimate claims, but you have not exhausted them, and therefore I cannot help you in Federal Court. " William H. Rehnquist: Thank you, Mr. Zerkin. Mr. Harris, you have seven minutes remaining. Robert Q. Harris: Thank you, Mr. Chief Justice. The first point that I would like to correct is the suggestion that was made here this morning that there was somewhere in the line of 90 to 180 days between the time of sentencing and the time of execution. The average time in Virgin between the imposition of sentence and execution is roughly seven years. The average time for getting a conviction affirmed in the Virgin Supreme Court is eight months. This is not a rush to judgement in these cases. On the matter of Mr. Washington's motion for appointment of counsel in the circuit court, the record does show that seven weeks after this court denied cert on his direct appeal, he appeared in the circuit court for purposes of setting an execution date. He appeared with counsel. His attorney asked the court to appoint counsel to represent him, telling the court that he knew his client was not entitled to it. He also represented to the court that a volunteer group, the ACLU, was looking to find an attorney to represent Mr. Washington, and he represented to the court that there was going to be an attorney out there... a volunteer attorney out there... to file a subsequent habeas corpus action. The trial court denied the motion at that time, and indicated that he was leaving the matter open, because he anticipated there was going to be future activity to request a stay, or some other matters. This is not a matter of the trial court saying there is no availability of counsel. This is simply a matter of the trial court denying a motion on the understanding that was given to him that volunteer counsel was going to appear. John Paul Stevens: Mr. Harris, can I ask you, this problem of delay troubles everyone interested in this area. You say that the average time in Virginia is eight months for a direct review to be completed, and then there is apparently another additional six years that takes place between the completion of direct review and the actual execution? Robert Q. Harris: That is a rough average, and-- John Paul Stevens: What, in your judgment, causes that delay? Do those two or three years go by before the first State collateral proceeding starts? Robert Q. Harris: --No, usually the first State habeas corpus petition would be filed rather promptly after the denial of cert.-- I think that the longest time there has ever been between a certiorari denial and filing would be maybe six months at the longest. John Paul Stevens: So then it is about seven or so years between the filing of the first State collateral proceeding and the conclusion of both that proceeding and whatever Federal proceedings there are? Robert Q. Harris: I cannot explain any one item. John Paul Stevens: Is one part of the proceeding more slow, more difficult to conclude than another, do you know? Robert Q. Harris: I do not see any one area as being particularly difficult. There are some-- John Paul Stevens: In some States, it is the direct review that is very slow. In some States you could wait several years before the conviction is confirmed. But in Virginia, it is just eight months. That is very interesting. Robert Q. Harris: --It is an expedited process in Virginia. It is given priority on the Virginia Supreme Court's docket. It is set for immediate briefing, and it is set at the earliest argument date. And the Virginia Supreme Court has a practice of deciding cases heard in one term by the next time they sit. That is the practice of the Court. John Paul Stevens: They start the first proceeding promptly, and it still takes six years? Robert Q. Harris: Well, I will give you an example... Mr. Giarratano's case in this. He is the named plaintiff in this action. He was convicted in 1979. He filed his State habeas proceedings, I believe, in 1980. They were completed by 1983, which includes both a hearing in the State circuit court on allegations of ineffective assistance of counsel and a review on the denial of habeas corpus relief to the Virginia Supreme Court. I believe in March of 1983, he filed his habeas corpus action in the Federal district court. That was dismissed last December, finally, and it is now pending in the Fourth Circuit. William H. Rehnquist: It pended in the district court for five years? Robert Q. Harris: That habeas action pended, was interrupted on several occasions... the last occasion that it was interrupted was, Mr. Giarratano added another claim which made a mixed petition, and he was allowed to go back to State court to file a second State petition while the district court kept the Federal action open. These cases take time. They do not need to. They certainly do not need to take this long. We certainly, though, do not want to add another layer of litigation. I do not agree with Mr. Zerkin's statement that there is not going to be any additional delay in these matters. There may not be a habeas corpus petition challenging the conviction, because of ineffective assistance of habeas counsel, but there will certainly be a habeas petition challenging the habeas action. It is a cost to the State from this new right to counsel that we have to relitigate every State habeas corpus action, because each time the petitioner insists another right to counsel to litigate the next State habeas corpus action. We will be doing this on and on and on, and I do not think this Court should be sending the message out there that these prisoners have a right to litigate indefinitely, particularly in these matters. And we are talking about litigation that has nothing to do with the trial, nothing to do with the determination of guilt. John Paul Stevens: I suppose we have to look at the experience in other States... a lot of States do provide counsel in this proceeding... and see if they have in fact been slowed up by the process you described. Robert Q. Harris: Well, again, we are talking about a system in Virgin where the delay is not caused by an absence of counsel. They have all had counsel, and there is still delay. That is not the cause of the delay. But if we add counsel, we are guaranteeing more delay. John Paul Stevens: I do not understand that. You say that they have had counsel... but why will you get more delay if you just have different counsel? That is really all you are talking about. Robert Q. Harris: If we are creating a new Constitutional right to counsel, presumably there will be some right to seek redress in some court if you have a claim against that counsel, even under-- John Paul Stevens: Well, all I am saying is that is true in a lot of other States right now. It is maybe not Constitutionally compelled, but these other States, like Florida, and some of the others, do provide counsel for collateral review. And you are suggesting that those States are... statistics will show that those States are a lot slower than Virginia, because they have this extra right? Robert Q. Harris: --No, I am talking about an extra right to an additional collateral review of collateral counsel. John Paul Stevens: Well, they have that... why do they not have that in Florida? Robert Q. Harris: Florida has made that decision. They have created this right to counsel for their prisoners under State law. They are not-- John Paul Stevens: But I am just saying, under your argument, it must be true that Florida has a lot more delay than Virginia does, because they have this extra right. It is a State-created right. Robert Q. Harris: --But they have not given them that State-created remedy of attacking collateral counsel. John Paul Stevens: I do not know why it is not a State-created remedy there, any more than it would be here. I do not understand your argument, I guess. I gather that you are saying that Florida gives you a right to counsel, but if you do not get that right, you cannot complain about it? Robert Q. Harris: Florida gives them a representative for their actions, but it has specifically said, we did not mean to create another layer of litigation by doing that. John Paul Stevens: Yes. William H. Rehnquist: Thank you, Mr. Harris. The case is submitted.

Earl Warren: Number 11, James E. Youngdahl, W. Chandler, Ruth Ralph, Amalgamated Clothing Workers of America, CIO, et al., Petitioners, versus Rainfair Incorporated. Mr. Isaacson. William J. Isaacson: Mr. Chief Justice, may it please the Court. This case is here under writ of certiorari to the Supreme Court of Arkansas. Petitioners here are the Amalgamated Clothing Workers of America, the labor organization and 10 individuals. Three of these individuals are representatives of the Amalgamated or are employed by it. Seven of these petitioners are employees of the Rainfair, Incorporated, a company involved in this proceeding and made application for membership to be Amalgamated and designated it as their bargaining representative. Rainfair, the company here, has two plants. One of which is in the Racine, Wisconsin and one, in Wynne, Arkansas, a small community in the Eastern half of that State. If the plant in Wynne, Arkansas which is involved in this proceeding and only that plant, as to that -- as to the fact that Rainfair is engaged in interstate commerce. There is no denial of it, and as a matter of fact, it was submitted in this brief of my opponent in behalf of Rainfair. The Company at Wynne, Arkansas employees, time is a controversy, came into being some 107 people, predominantly women. At the time of the strike, which I have come in a moment which is the key question here, there were some 87 people, 80 of whom were women. Throughout all of the proceeding here, I shall discuss that the plant was mostly women. Now, the injunction issued by a trial court (Inaudible) from engaging in any activity at -- engaged near the plant of Rainfair (Inaudible). This included or this precluded rather, the picketing that precluded assembly on a vacant lot across these premises and it precluded any form of speech near the plant. This injunction was challenged by the trial court and in the court below on two basic grounds and the court below -- the court -- Supreme Court of Arkansas, a challenge was made on the ground that this injunction contravene this assembly, that the petitioner held under the Fourteenth Amendment. Secondly, an independent ground, it was challenged on the ground of the Supreme Court that the trial court here had cut across, interferes with protected activities under the National Labor Relations Act or had taken upon itself the function of the Labor Board, function exclusively that of the Labor Board to cross this unfair labor practice. On March 19, 1956, the Supreme Court of Arkansas upheld and affirmed the injunctions which I described, primarily and substantially on the ground of striking in their activities during a strike from June 20 to June 24, had a view in strike breakers and is the views to perform substantially of calling the strike breakers scabs and variance of that term. There -- the complaint by the company in the trial court on which the ex parte injunction first granted and finally the permanent injunction, the complaint alleged that the objective of these activities were illegal under Arkansas law, first, that it was contrary to their right to work constitutional amendment in enabling statute, and that also that these activities were illegal because they were for the purposes of coercing the employee to join an organization or rather coercing the employer, coerce the employee to join the organization contrary to their desires. The Supreme Court of Arkansas, which is the only Court in petition in the opinion in this proceeding, did not find either of the objectives to be illegal. It did not discuss it in terms of objective. The Supreme Court in Arkansas found, as to the Fourteenth Amendment question that we raised. They found that the Fourteenth Amendment did not protect these activities here because as they say the act of -- even if they conceded that the acts of violence involved here fall in that category, the category of isolated episodic act, there was nothing isolated or infrequent about persistent abuse, insults, etiquette along the picket line. Many jurisdictions have authorized such injunctions with the strikers' acts and conduct had been so entangled with violence, another illegal conduct, that future excesses might reasonably be anticipated in light of what is previously done. The conduct, as I initially stated, to which this Court makes reference at this point was substantially and basically the calling of the strike breakers as they entered and left the plant, scabs and variance of that term. The Court, so far as the preemption question is concerned, said that while they realized that the ultimate decision would have to be made by this Court. Then went on to say, so far the state courts had been unanimous in holding that the National Labor Relations Act does not preclude them from granting injunctive relief against picketing in a manner that is unlawful under state law. Until, otherwise told, we shall assume that it was not the purpose of the federal act to deprive a state court of its ancient jurisdiction in such matters. These are the basic holdings of the Court on which this all embrace the injunction was granted. Now, the facts which led up to the strike which is an issue here are briefly these. In the early part of 1955, the Amalgamated Clothing Workers proceeded to attempt to organize these employees, at that organization met with some success that demonstrated in a number of ways. The organization by April was in a position where they thought they could go to the employer and make a request for exclusive recognition as a bargaining agent and there is evidence that during a -- peace meeting with the employer, they stated that they represent the majority of the employees as many as 80. The employer, however, sought it not to recognize the union and instead engaged in what the petitioner, Amalgamated, regarded as unfair labor practices because on April the 5th, charges were filed with the National Labor Relations Board at the sub-regional office of Memphis to the -- Tennessee, to the effect that these activities constitute on the part of the company in response to the union's organizational campaign and request for recognition, constituted interference, straight coercion in the terms of statute. Subsequently, sometime in the month of April, there was a petition for an election filed by the Amalgamated. This petition, however, withdrawn in the light of what the organization, the Amalgamated, considered to be the unfair labor practices continuation of those unfair labor practice on the part of the employer. Apparently, there was a feeling that it could not be an untrammeled choice at this particular time in the light of these unfair labor practices. On the 2nd of May, there was a strike called by the Amalgamated, 29 persons went out on that strike. The day that the strike was called, the employer countered with a letter to the strikers, to the effect that if they did not return to work, that they -- places would be failed, and there will be no jobs for them. As the result of this letter, some three persons did return to work, the other 26 continued on strike until May the 19th, when the realization came upon the organization and these persons were a part of -- of this strike, that this was not a strike which could be successful. On that day, they abandoned the strike. So, advised, the employer of the strike was abandoned and asked that all of these persons be reinstated. The company was so apprised of that fact on the 19th of May. The company, however, although that they had not replaced all of these persons, as a matter of fact they hired some 13 persons, the testimony developed in the proceeding before the trial court. Although they hired some 13 persons, they nevertheless sought it not to take on any of these people. As a result of this, additional charges were filed, amended charges were filed broadening the initial charge to include an 83 on the ground of -- there had been discrimination in view of the company's refusal to reinstate these particular persons when they've made their offer, after their sort of activity have come to end. And there was an additional charge filed between the charge, the general interference, and the restrain charge and that which I now described of a refusal of bargain in the interval. So, by this time on June the 6th, we have charges now of interference restraint and coercion, refusal of bargain and discrimination by virtue of this failure to reinstate -- refusal to reinstate of these persons, these 15 persons were part of the 26 on the strike. The company nevertheless, did not reinstate any of these employees and consequently, on June the 28th, the union went out on strike again. I say consequently because I don't think that there's any dispute that the union strike on June the 20th was because of the, that they consider it to be the company's unfair labor practice. As a matter of fact, the brief of the company, it's described in this way on pages 3 and 4 of the brief of the company, described this way. Bottom page 3, on June 17, 1955 the strikers met with several staff members of the union of Forrest City Arkansas and vote to reestablish the picket line because Rainfair refused to reinstate the strikers or for continuing unfair labor practices. The strike which began on June the 20th and which terminated on June 24th on an ex parte injunction is the only strike and only picketing activity which is before -- which was before the court in Arkansas, and now before this Court. The -- at this strike, we do not have the precise numbers that engaged these strikes. It was a presumably, something less told than the 26 employees who have not been reinstated because some of these 26 had gone off to other job. There are no additional adherence to this strike activity at this time. So, there was something less than 26 employees who are now out on strike. This strike continued until, as I said, until the 24th, when the ex parte injunction was granted -- granted on the faces of a verified complaint, verified by the plant manager and according to the record, oral testimony by the plant manager. There was a hearing held on this injunction on the 1st of July, and on September the 15th, this injunction was made permanent. On the 15th also, and I refer to this only because the point that was made in the brief of counsel for the company, they also dismissed a contempt by taking, which had been heard on July the 20th against two youngsters who had broken some bottles in the vicinity of the plant sometime during the month of July. And this -- after -- after the strike was concluded and that the -- this activity was in contempt with the Court decree. The Court did not find so however. However, there is in fact some reference to it, some lengths, as a matter of fact in the brief for the company here. At this point, faced now with the September the 15th, faced with a permanent injunction and realizing and recognizing that there would be tending delay on appellate review in the state court. The union came to the conclusion that the only thing that could salvage out of this proceeding, was to go to an immediate election. This -- they decided to do, and there was a stipulation for an election. On that -- on that, election held on October the 19th, some 57 people voted against the union and 48 people voted for the union even though, there has been an injunction in effect for all these several months. Nevertheless, there were some 48 persons, who still adhere to their original affiliation with the organization. Some 15 persons voted what the Board refers to as challenged ballots that as they're committed to vote but their ballots are -- their ballots are sequestered from the ballots to which no challenge was made and helpful examination. These challenge ballots were subsequently, several months later, not to be entitled to vote. As I've said on March the 19th, in Supreme Court of Arkansas, affirmed the injunction of the lower court. Subsequently, to the affirmation of the injunction, the last act, when the proceeding, so far as this Court is concerned, took place and that is that there was a settlement of the charges which the National Labor Relations Board amended, a settlement providing with the -- the posting of a notice on the bulletin board of the company and that notice provided that the company would not interfere, restrain or coerce the employees, would not interrogate the employees and that it would not permit the Wynne Industrial Development Corporation, a group of businessmen in Wynne, to use the premises of the company for purpose of interference and restraint and they would not hold them out as the agents of the company. Obviously, I cannot give this Court, that it's not a matter of record, the precise detail which led up to the settlement that prompt the company to enter into this kind of settlement at that time. That is not before the -- that is not before us now because it is not a part of the record in this proceeding. Have there been a Labor Board proceeding and undoubtedly it would have been made a -- a part of a formal transcript. Now, as to the precise -- as to the strike itself to which the challenge is made by the employer in its complaint. As I've said, there would -- there was a picketing -- there was picketing in May of 1955, May the 2nd, May 19th which was brought to an end by the realization that the strike could not succeed. Felix Frankfurter: Mr. Isaacson. William J. Isaacson: Yes. Felix Frankfurter: May I revert back to the, what you call settlement. William J. Isaacson: Yes. Felix Frankfurter: The use of word “settlement”. William J. Isaacson: It's the settlement to which the employer was a party, under which they agree with the Labor Board, the Regional Director of the Labor Board to post a notice to the effect that they would not interfere that the -- the notices in the normal standard fourth language -- Felix Frankfurter: What -- what happened -- what -- is there anything more to say about the relation of the employees or more particularly the union, the local as I -- the local of Amalgamated, is there a local down there? William J. Isaacson: There is none. It's just the -- there is no local in the area there. This is a -- an area in which this was the wholly plant, as I've come to in a moment. So we have no local -- Felix Frankfurter: Is there anything in the record that tell us or outside the record that is or as it could be put to the Court, it is relevant and to what the -- what are the more detailed facts and consequences of this settlement are, as you call it? William J. Isaacson: Unfortunately, Justice Frankfurter, in these cases which do not proceed through the Board, the state court has very little interest in going into the matter of whether or not there are unfair labor practices on the part of the employer in determining what revenue, if any, they should make against the -- Felix Frankfurter: I'm not -- William J. Isaacson: -- the union. So, nothing -- Felix Frankfurter: The state court, as I am in this Court. William J. Isaacson: Nothing -- yes. But nothing was brought out. This is my point nothing was brought out in the state court proceeding, concerning the fact underlying this settlement agreement. The settlement agreement, I have a copy of it here and a part of the formal government file of the National Labor Relations Board, the settlement agreement was approved on March the 21st, 1956. Felix Frankfurter: And being -- the injunction was when? 1955? William J. Isaacson: The injunction was 1955. March the 19th, 1956, the Supreme Court of Arkansas affirmed the trial court. Felix Frankfurter: And this settlement followed that? William J. Isaacson: Followed the (Inaudible). This was the -- the last act and this point, there's nothing left to be done. This strike comes to an end really on July -- on June the 24th of the year previously -- and that really was the end of the union's activities here in which they have a real understanding but nevertheless it went through the formalities and that's all that there were after that injunction was issued. There were nothing more than formalities, it went through the formalities of the court proceeding but there could not be at that point and in vindication of the rights under the statue. Both rights had been irreparably and irrevocably taken away from them. Hugo L. Black: As I understand, are you objecting now to the entire injunction for just that (Inaudible) of injunction that applies to all action including the provision? William J. Isaacson: We attack -- we attack the entire injunction, Your Honor. We feel that there was no basis for any part of the injunction. Alternatively though in our brief we make the point that even the state court had the power in the terms of preemption question, had the power to enjoin the activities, the calling of the strike breakers, scabs and variations of that term even if they have that power, they have no power over the rest of the controversy. In terms of the Fourteenth Amendment, we say that even if they have the power to enjoin that activity, which I described, they certainly had no power to enjoin anything else, the peaceful activity. So, we argue in the alternative to that extent. Felix Frankfurter: When you're attacking the whole injunction -- William J. Isaacson: We are -- Felix Frankfurter: -- on the preemption ground, do you not? William J. Isaacson: We attack it on the preemption ground. That is right. Felix Frankfurter: And you're attacking at least portions -- these portions of the injunction in any event on the Fourteenth Amendment. William J. Isaacson: With this -- with this -- correction, Your Honor. We attack the entire injunction on the basis of the Fourteenth Amendment too, because we claim that this right, we claim the right on the part of the strikers, calling strike breakers, scabs and variations of that term. We claim this part -- William J. Brennan, Jr.: Mr. Isaacson, may you tell us -- William J. Isaacson: -- guaranteed under the Fourteenth Amendment -- Felix Frankfurter: But in any event -- in any event, you go further and say in any event, what Justice Burton had referred to -- William J. Isaacson: That's right. Felix Frankfurter: -- which is your final retirement of business. William J. Isaacson: That is right. Felix Frankfurter: All right. William J. Brennan, Jr.: What is the significance of assisting, given to the Board proceeding on the preemption point or do I understand correctly that you're using that in support of the preemption? William J. Isaacson: Yes. I am to this -- to this extent, Your Honor, because I feel that when you've developed this proceeding and show the alternating proceedings before the Labor Board and before the Court at the state court in Arkansas, you understand fully and get the full flavor of the enmeshment here of the proceedings before the Labor Board and before the state court particularly -- William J. Brennan, Jr.: Now, this -- does this settlement agreement for close both employer and the union from further proceedings before the Board, arising out of this fact? William J. Isaacson: As a practical matter, it would. It doesn't read -- it doesn't say that it would made prejudice simply it's withdrawn -- William J. Brennan, Jr.: Well, is that -- William J. Isaacson: We would now be precluded by -- we would now be precluded by the Taft-Hartley statute of limitations, a six-month statute of limitations that we could no longer reinstitute these -- William J. Brennan, Jr.: Well, apart from that, is there anything in the settlement agreement which perhaps may render the absent quite moot? William J. Isaacson: No, not all, because what we have here is that the very time at the -- at the most critical period in the union's campaign the -- William J. Brennan, Jr.: The State intervened? William J. Isaacson: The election -- the election itself. They were under the heaviest of restraint from engaging in any activities at the most critical place, the most decisive place that this Court has recognized in -- in many decisions near the plant premises. This is a small community in which most of the persons drive to work and the place where they can be most effectively organized is at or near the plant and it was here from which we were precluded from taking any of the activities, which I've described as falling under the state court restraints. So, it's hardly moot because the most, as I've said, the most critical period in union's organizational campaign. William J. Brennan, Jr.: Well, the union (Voice Overlap) -- but the union for reasons would at least, if it went a long voluntarily on a settlement as I understand. William J. Isaacson: May I say this? That point, we weren't a party to the settlement at this point, that there was little that we could do in any event (Voice Overlap) -- William J. Brennan, Jr.: You say you were or we're not? William J. Isaacson: We are not a party to the settlement. Felix Frankfurter: Between who was the settlement? William J. Isaacson: Settlement between the regional director on behalf of the Labor Board and the company. Felix Frankfurter: And the union isn't mentioned in the settlement? May I (Voice Overlap) -- William J. Isaacson: Only -- only mentioned in (Voice Overlap) -- Felix Frankfurter: -- may I suggest this? In as much as you say, as you're arguing for all I know, quite correctly, I'm not suggesting in contrary. In as much as you have just considered whether it is or it isn't a moot, I put it to you whether it isn't appropriate to put the document into, lay the document before the Court so that one may discuss so considered this question in the light of the document which you reject to proving nothing -- rejecting mootness. I'm not saying it is moot. I'm not -- all I'm saying is the question has been raised. William J. Isaacson: Well, I have -- I have the -- but this one copy -- Felix Frankfurter: Well, I -- William J. Isaacson: I -- I shall certainly duplicate it and make it available to the court. Felix Frankfurter: -- just as whether you shouldn't -- this is a proper document to put to the court. Perhaps at your observations that you just made and the respondent's observation. What the bearing of this settlement is -- William J. Isaacson: Well, let me see -- Felix Frankfurter: -- whether it was a voluntary or whether the union did come or not. I'm not -- the slightest thought on the subject in my mind. The questions are raised that you yourself know it. William J. Isaacson: I shall -- I shall have -- I shall have a photo that's made by the -- the Labor Board. I shouldn't think any case too long and have them before the Court as quickly as I can. But as -- Earl Warren: Is there any objection from counsel to that? Speaker: Since the objective to -- I don't think the introduction of this has anything to do with this (Inaudible) -- Earl Warren: All right. Suppose we will wait until the end of the argument. We'll decide -- William J. Isaacson: But, coming back to Justice Brennan's point, I'll say this, repeat that at the time the injunction was in effect was the critical time, so far as the union organization is concerned and when we came through the test at the ballot box which we thought compelled to go into at that time because we have no other recourse. We were enjoined to take any other step. We have no record what to perceive or what we thought would be a very poor (Inaudible) and effort there, we proceeded with this heavy restraint of an injunction upon -- William J. Brennan, Jr.: I understand that -- William J. Isaacson: Precluding all (Voice Overlap) -- William J. Brennan, Jr.: I -- I'm puzzled Mr. Isaacson about this settlement agreement. I had the impression when you first mentioned it that the union was a party to it. Now, you said it's only between the Board and the -- the -- director and the -- William J. Isaacson: So far as I can tell from this copy which I have, before me -- William J. Brennan, Jr.: Well, didn't the union have -- didn't the union -- William J. Isaacson: No. The union doesn't have to consent on this (Voice Overlap) -- William J. Brennan, Jr.: I'm not suggesting it has to consent but did it or what -- William J. Isaacson: No. It did not consent, so far as -- William J. Brennan, Jr.: Did it object? William J. Isaacson: We did not take in -- we did not take an appeal from the general counsel from the settlement. We -- William J. Brennan, Jr.: But did you -- did you object to it when it was made? William J. Isaacson: Yes. We did object to it at that time. We did not take an appeal or to the general counsel, so that brought -- that brought it to an end when there was no field taken. Charles E. Whittaker: Mr. Isaacson -- Hugo L. Black: We'll recess now.

John G. Roberts, Jr.: We will hear argument first this morning in Case 11-159, Astrue v. Capato. Mr. Miller. Eric D. Miller: Mr. Chief Justice, and may it please the Court: The Social Security Administration has reasonably interpreted the Social Security Act to provide that as a general rule, a person seeking to establish eligibility or child survivor benefits must show that he or she would have been able to inherit personal property from the decedent under applicable State intestacy law. That interpretation is supported by the text, structure and history of the act, and it comports with principles of federalism because it defers to State law on the determination of family status, which is a traditional subject of State regulation. It's reasonable and entitled to deference under Chevron. Now, the textual arguments in this case involve the interaction of three provisions of the act. The first is section 402(d)(1), which is the basic benefits-granting provision. And that says that under certain conditions, the child of a wage earner is entitled to benefits. And that provision has a cross-reference to a definition of 416(e) of the act. And 416(e), which is reprinted at page 4A of the appendix to our brief, says that the term "child" means: One, the child or legally adopted child of an individual; two, a stepchild under certain cases; and three, a person who is the grandchild or step-grandchild of an individual. Now, I think the one thing that's immediately apparent from looking at that provision is that under anyone's reading it's a little bit confusing because it uses the word "child" twice to mean two different things. That is, the first "child" is broader than the second, because the first one includes the second as well as adopted child, stepchild, and so forth. Samuel A. Alito, Jr.: Suppose a State legislature got the crazy idea that children born to married people during the time of the marriage shouldn't inherit under State intestacy law. Would that mean that they would be ineligible for survivors' benefits? Eric D. Miller: Not necessarily, because if somebody doesn't qualify under -- and I should say at the outset that that is unlike the law of any State either in 1939 or today-- Samuel A. Alito, Jr.: But what if they did -- what if they did that? Eric D. Miller: --There -- there are two alternative mechanisms that Congress added to the statute in the 1960s to allow children who lack intestacy rights to establish their eligibility. Those are 416(h)(2)(B) and 416(h)(3). And 416(h)(3) says that an applicant who is the son or a daughter of an insured individual but is not a child under paragraph A, which is the reference to State intestacy law, shall nevertheless be deemed to be a child if there was an acknowledgment in writing that the child was -- that the applicant was the son or daughter, or there was a court decree for support. But I think-- Ruth Bader Ginsburg: Those are -- those are obviously meant to deal with -- with children whose parents are not married. Eric D. Miller: --That -- that's right. And -- and the reason for that is that in fact, under the law of every State, both in 1939 and today, children whose parents are married do have State -- do have intestacy rights. But I -- I think what -- what the provision I just referred to illustrates is that the term "child" in this statute is a legal term of art, because if you were just looking at the ordinary meaning of the word "child", the concept of an applicant who is a son or daughter but is not a child, would be completely nonsensical. Samuel A. Alito, Jr.: Maybe it means something else. Maybe it means that to the Congress that initially enacted the predecessor of this provision a child was a child. They knew what a child was. And the type of child that I mentioned earlier was a child. There wasn't a need for any definition of that. And they -- they never had any inkling about the situation that has arisen in this case, just as they had no inkling that any State would go off and take away intestacy rights for children born to married people during the course of their marriage. Eric D. Miller: Well, I mean -- I think -- I think those -- those are probably accurate factual claims about what Congress was thinking. But had -- had Congress wanted -- the way that Congress chose to make sure that the children of married parents could establish their eligibility was by looking to State intestacy law, because Congress knew that under State intestacy law, those children had such rights. Elena Kagan: But isn't there something sort of bizarre about your reading, because Congress in the (e) section sets up very specific definitions about stepchildren and grandchildren and even step-grandchildren in which State intestacy law is not referenced, but you are that saying that as to the largest category, the category in which 90 percent of people are going to get benefits, there Congress sent us all off to State law. Eric D. Miller: Well, it -- that -- that is what section 416(h) says. Section 416(h) sets out a rule-- Elena Kagan: Well, suppose I'm not so convinced that (h) is as clear as you think it is because there are two sentences of -- of section (h). I'm just asking you to provide a reason why Congress would have specified everything about what -- how you get benefits for stepchildren and grandchildren and stepchildren, but not for the main category of people at issue. Eric D. Miller: --Well, I think -- I think it's because with respect to the main category of people at issue the question Congress was asking is, what is the class of people who are likely to have a sufficiently close relationship to the insured person such that it would be appropriate to provide benefits to replace the loss of support that they would likely be getting during the person's life. And if you look at what is the body of law that defines that class of people who have a close relationship with someone, it's State intestacy law. And State intestacy law sets out sort of a clear, easy to apply rules for the distribution of estates. John G. Roberts, Jr.: Well, they don't always do-- Ruth Bader Ginsburg: There's one provision in (h) that is puzzling and maybe you can tell me what it means. It's at (h)(2)(A), and it's the last sentence of (A). It says: "Applicants who according to State law would have the same status relative to taking intestate personal property as a child shall be deemed such. " What person is that referring to? Someone who is not a child but has the same status as a child? Eric D. Miller: That -- that's right. The first sentence sets up a general rule that you look to State law for the definition of "child". And the second sentence says that people who do not have the status of children but nevertheless have the inheritance rights of children shall be deemed children. And as a practical matter the people that that applies to are people who have been equitably adopted. There is a doctrine in the law of many states where you have an adoption or you have an agreement to adopt, but not yet a completed legal adoption. In that circumstance the would-be adoptee does not have the status of a child for all purposes or even necessarily for all inheritance law purposes, but can take property from the adopting parents. So that's who would be covered by that sentence and that is now addressed in the regulations, I believe, at-- Ruth Bader Ginsburg: Anyone else or just that category? Eric D. Miller: --I think -- I think that is the -- the most likely category that it would apply to. John G. Roberts, Jr.: --Counsel-- Antonin Scalia: I'm sorry. John G. Roberts, Jr.: --You said earlier that the State intestacy law provides clear rules, but I assume that's not always the case, particularly with all this new technological advancement. There must be circumstances where you can't tell what State intestacy law provides. And what does the Social Security Administration do in that case? Eric D. Miller: The Social Security Administration tries to apply State law. And-- John G. Roberts, Jr.: No, no. My hypothetical is that there is no clear answer. I mean, let's take a situation where this type of -- of reproduction is -- is new, and the State legislatures haven't had a chance to decide whether they want to recognize the offspring for State intestacy law or not. What would SSA do? Eric D. Miller: --Well, the SSA does the best that it can to figure out what the State law is, and then on review in the district court, you know, the district court is able to review that. And there have been cases in which district courts have certified questions to State courts. And I think actually the fact that there are those difficult questions that can come up in some of the cases, particularly involving assisted reproductive technology, really illustrates one of the virtues of leaving it to the States rather than, as Respondent would have it, effectively forcing SSA and then the Federal courts on review of its decisions to create a sort of Federal common law of parentage to resolve all of those very difficult questions. Sonia Sotomayor: There was in my memory, and it's been a while, that some States, if not all -- and that's what I was going to ask you, basically deem any child born during the marriage to be a child of the marriage, whether it's a biological child or not, so that if a mother has had a relationship outside of marriage the married parent is still responsible for that child. That would take care of, I think, a great number, wouldn't it, of the new technology births that occur without perhaps the input of one of -- the biological input of one of the parents? Eric D. Miller: That -- that's right. And in fact there are statutes in a number of States addressing a question of when a -- yes. Yes. Sonia Sotomayor: Yes. My question was, do all States have similar rulings? And for those that don't, what happens to a child that's been born with, as Justice Roberts said, as the Chief said, with new technology? What happens to that child in terms of their definition of whether they will be considered a child for Social Security purposes? Eric D. Miller: I -- I can't speak with certainty to all the States, but I believe that that is the -- the general rule. So I'm not aware of any -- any States where when you have a married couple using donor -- donor sperm, that the child would not be deemed the child of the husband. Antonin Scalia: My impression is that, I'm not sure it's by statute, but just by judicial decision, a child born in the marriage is a child of the marriage unless -- unless the child is repudiated by -- by the father. Eric D. Miller: I believe that is -- that is the general rule. And I think one thing that that illustrates, of course, is that Respondent's definition, which is also the court of appeals' definition of what a child is, and the definition that they urge the Court to apply in 416, is the biological child of married parents. And not only is the -- does the 1939 and today there are many cases in which biological parentage is not determinative of legal parentage, both for the reason that we were just talking about and then also for -- another example is when you have an adoption; a child who has been adopted by somebody else is no longer legally the child of his biological parents. Anthony M. Kennedy: Would -- would you tell me if -- if the Capato twins are both found to be -- be children within the meaning of the act, will they meet the dependency or the deemed dependency requirements? Or is that a back-up argument that you have? Or-- Eric D. Miller: We -- that -- that would be a question for the agency to address in the first instance. The agency has not addressed that question in the administrative process here, so we are not-- Ruth Bader Ginsburg: It -- it was addressed in the Ninth -- in the Ninth Circuit decision, wasn't it? Eric D. Miller: --That's right. And the Ninth Circuit read the dependency provision of the act to say that any legitimate child is deemed to be dependent, and it then conducted an examination of legitimacy under California law. Anthony M. Kennedy: --You don't have a position on that here? You want that to be elaborated more by the agency? Eric D. Miller: That -- that's right. I mean I -- what I will say is, just speaking in general terms about dependency, the statute creates a number of presumptions that allow basically any -- any natural child, any child under the -- that first -- that second child in 416(e)(1), anyone who fits into that category is deemed to be dependent. So it doesn't necessarily turn on -- on factual dependency, which is obviously not present in-- Sonia Sotomayor: Rebuttable presumption or irrebuttable? Eric D. Miller: --The presumption in favor of dependency for anyone who qualifies is irrebuttable. Antonin Scalia: You rely only on that -- on that definition? The section is entitled "Old Age and Survivors' Insurance Benefit Payments. " and it also provides in (d) that a child is entitled to the benefits if, among other things, "(c), was dependent upon such individual, (1), if such individual is living at the time that the application was filed; (2), if such individual has died at the time of death; or (3), if such individual had a period of disability. " etcetera, etcetera. It seems to me -- is the word "survivor" used anywhere in the text of this statute except in the -- in the heading of this section? Eric D. Miller: I don't -- it doesn't appear in any of the -- the operative definitional provisions, but I would certainly agree with you that it is-- Antonin Scalia: We use titles to determine the meaning of ambiguous provisions later, don't we? Eric D. Miller: --Yes, and I certainly would agree with the -- the idea that it is difficult to describe someone as a survivor who was not alive at the time that person-- Antonin Scalia: Nor would he meet the requirements of (c), would he? Would he meet any of the requirements of (c), of (d)(1)(C). Eric D. Miller: --The dependency requirement is defined in 402(d)(3) and -- which unfortunately is not reproduced in the appendix, but which had the effect of making anyone who qualifies under 416(h) be deemed dependent. Now, we don't think that the children in this case qualify under 416(h), so there is not even any need to reach the dependency question here. Antonin Scalia: Then what does (d)(1)(C) do if it's all washed out by-- Eric D. Miller: Well, the dependency requirement is something that people who don't qualify under 416(h), people who are adopted, children or stepchildren or grandchildren may in some cases have to make an individualized determination of actual dependence. Antonin Scalia: --Well, it says every child as defined in 416(e) has to meet that requirement. If such -- such child, the one defined in (e). Eric D. Miller: Right, but then -- but then 402(d)(3) says a child shall be deemed dependent under certain circumstances that effectively track the 416(h) analysis. And I -- I would refer you on that point to the agency's regulations defining dependency, which are 404.361, which say that any natural child, which is the term the agency uses for that second child in 416(e), any natural child is deemed dependent. Antonin Scalia: Okay. Sonia Sotomayor: May I ask? Justice Scalia said that the statute is ambiguous. Is that your position? Is it your position that the definition of "child" is ambiguous and that we have to give the agency deference, or is it your position that in the context it's unambiguous and even if the Social Security Administration wanted to extend benefits, it couldn't, in the circumstances of this case? Eric D. Miller: I think that when the statute was initially enacted in 1939 with more or less the same structure of these provisions as we have now, it might at that time have been ambiguous. But the agency adopted an interpretation that is, again, in structure materially identical to its current interpretation in 1940 and it has adhered to it ever since. And Congress has amended the statute with the understanding that that was the interpretation, that everybody had to go through State law to qualify. And I think in light of that history, at this point, and Congress's ratification of that understanding, at this point the best view is that it is unambiguous, and clearly resolves the question in favor of the interpretation set out in the agency's regulations. Elena Kagan: Mr. Miller, could I take you back to 416(e). I take it that you don't contest that for purposes of deciding that this -- which stepchildren get benefits and which grandchildren get benefits, we are just looking to Federal law, that we don't look to State law on those questions; is that correct? Eric D. Miller: Yes, because those terms do not appear in 416(h). There is no instruction in the statute that those terms be defined by reference to State law, as there is with respect to "child". Elena Kagan: You know, I'm looking at some of these, the grandchildren one for example. It says the person who is the grandchild, but only if, blah, blah, blah. It seems to have just sort of an understanding of what a grandchild is. In other words, it's not really defining a grandchild here; it's limiting a class of grandchildren with a preexisting understanding of what a grandchild is. And so I'm wondering, if that's true of grandchildren, why isn't it also true of children? Eric D. Miller: Well, I should say two things about that, then. The first is specifically with respect to grandchildren. The agency -- the agency has defined a 404.358. Elena Kagan: I'm sorry, the child of a child. The child -- what kind of child? Eric D. Miller: Somebody who would qualify under 416(h) as a child. Elena Kagan: Oh, so for grandchildren the agency is also looking to State law? Eric D. Miller: Indirectly. I mean, "grandchild" is not expressly defined in the act, but somebody who qualifies either under State law or you could also qualify as a stepchild or adopted child of someone who qualifies as a child in that same sense. But again, the lack of a -- a -- what is significant, I think, is the lack of any other provision in the statute that tells you how to define "grandchild". I mean, the run of cases that Congress was concerned about involved children, and for -- in explaining to the agency how to deal with those cases, Congress gave explicit guidance and that's to look to State law in 416(h). Now, Respondent makes much of the fact that the benefits-granting provision, 402(d), has an express cross-reference to the definition in 416(e), but doesn't cross-reference the definition in 416(h). And I think there are two problems with that argument, the first of which is that 416(h) by its own terms says that it applies for purposes of this subchapter, that is throughout all of the parts of the act that we are talking about here. So effectively 416(h) incorporates itself into the 416(e) definition and there is no need for an express cross-reference. The second point about that is that the structure of the definitions here is very similar to the structure of the definitions used in defining other family relationships that are eligible for benefits. So under 402, some of the other subsections of 402, there are benefits for the wife or husband or widow or widower of an insured person. And just to take the benefits for a wife as an example, in 402(b) the statute says that the "wife -- as defined in section 416(d) of this title. " under certain circumstances can get benefits. If you look at the definition in 416(b) of 416(e). It says: "The term "wife" means the wife of an individual. " and then it has some limitations. Antonin Scalia: Can you -- go ahead, finish. Eric D. Miller: If you were to take Respondent's approach, you would just stop there and apply some Federal standard of figuring out whether people are married or not. But in fact 416(h), paragraph 1 of 416(h), says an applicant is the wife or husband or widow or widower of an insured person if the State courts would regard them as being married. So -- and in the 1939 act, all of those references to State law for wives and widows and children were all combined in one paragraph, so it was even clearer that that was how the statute worked, that you look to State law for defining all these family relationships. Antonin Scalia: Counsel, I now have in front of me (h)(3). I don't see how it has anything to do with whether the child was dependent under (d)(1)(C). Why do you think it has something to do with that? Eric D. Miller: I'm sorry. The definition of dependency is in (d)(3), 402(d)(3), not -- 402(d)(3) says a child shall be deemed dependent upon his father unless at such time such individual was not living with or contributing to the support of such child and the child is neither the legitimate nor adopted child of the individual. So the effect of that is anyone who is a legitimate child is deemed dependent under 402(d)(3). Antonin Scalia: Well, unless such individual was not living with or contributing to the support of such child, which is certainly the case here -- the child had not yet been born -- and other qualifications. The principal condition does not exist. "Shall be deemed dependent upon his father or adopting father unless at such time such individual, mother or father or adopted father, was not living with or contributing to the support of such child. " How does that alter the dependency requirement of (d)(1)(C)? Eric D. Miller: Because the child is deemed dependent unless he was -- again, since -- to be clear, we think that the children in this case do not -- are not eligible for child status because they don't meet the requirements of 416(h). Antonin Scalia: Well, that may well be. If that is ambiguous, why doesn't -- why doesn't (d)(1)(C), despite -- what is it (h)(3) or whatever the 3 we've been playing with here, despite (d)(3), despite that it seems to me that they don't meet that requirement. Eric D. Miller: That -- that might well be the case. Our position is simply that that is not an issue that the agency has addressed and that would be a matter for the agency to resolve in the first instance if this Court were to disagree with us on the definition of "child". I referred a minute ago to the 1939 act and the structure of that act, and I think that's very instructive because again the way that the provisions were arranged in the 1939 act, as we set out in our brief, were the same for present purposes as they are today, and Congress when it amended the act in the 1960s to allow certain nonmarital children to be eligible for child status recognized that that was the case, recognized the commission's interpretation that that everybody had to go through 416(h) and establish their eligibility under State law, and then chose to make express exceptions to the requirement of State law for those children. No such exception applies here. If I could reserve the remainder of my time. John G. Roberts, Jr.: Thank you, Mr. Miller. Mr. Rothfeld. Charles A. Rothfeld: Thank you, Mr. Chief Justice, and may it please the Court: If I can, I will start with a question that Justice Sotomayor asked about ambiguity or not of the statute, and we think that in fact the statute is not ambiguous at all. We think that it unambiguously dictates the reading that we advance. And it's useful, I think, in addressing the case to recognize that it presents essentially two issues. One is whether all of the categories of applicants for child survivor benefits that are defined to be children in the statutory definition of 416, qualify for child benefits without reference to State law, as we submit. If they do, then the second question is whether the children in this case, the Capato twins, fall within one of the categories of children so defined, and we think that they very clearly do. Congress said expressly that every child as defined by 416(e) shall receive benefits so long as they satisfy certain criteria that are not at issue in this case. Section 416(e), to which Congress has expressly directed us in determining who is a child eligible for these benefits, defines a child to be: "(1) a child or adopted child; (2) a stepchild-- " Sonia Sotomayor: Excuse me. Could you tell me what purpose 416(h) serves in this statute? Charles A. Rothfeld: --We think-- Sonia Sotomayor: --given that you believe that 416(e) is self-sufficient unto itself. Charles A. Rothfeld: --We think section 416(e) is sufficient as to the children defined to be a child within that statute. Sonia Sotomayor: As the child who should receive. So what the purpose of (h)? Charles A. Rothfeld: And our understanding of who falls within section 416(e), (e)(1), definition of child, is the natural child, the biological child of married parents. There of course-- Sonia Sotomayor: So the -- a child who was born during marriage but is not a biological child wouldn't qualify? Charles A. Rothfeld: --Well-- Sonia Sotomayor: Even though they qualify under State law as a child? Charles A. Rothfeld: --That's the question, what (h) is designed to accomplish. We think that Congress enacted (h) for children whose parentage or parental relationships were unclear, which would principally would have been children who were born outside of marriage, as to whom there was no presumption-- Sonia Sotomayor: So what this -- let's assume Ms. Capato remarried but used her deceased husband's sperm to birth two children. They are the biological children of the Capatos. Would they qualify for survivor benefits even though she is now remarried? Charles A. Rothfeld: --Well, I think that's an interesting and more difficult question than what we have here. I think that the answer may well be yes, and I think that the situations like that can arise really in -- outside of the IVF context. That's a related situation. Sonia Sotomayor: Well, you see, a situation like that is what is making me uncomfortable, because I don't see the words "biological" in the statute. I don't see the word "marriage" directly when -- within the definition of "child". So where do I draw them from? Where do I come-- Charles A. Rothfeld: Well, let me answer both of those questions. As to where marriage comes from, I think from a number of sources. One is the point that was raised by Justice Alito and Justice Kagan, that at the time Congress enacted the statute in 1939 the overwhelming majority of children in the United States, more than 90 percent -- it was actually more than 95 percent -- were the children of married parents. And so when Congress-- Sonia Sotomayor: --But that would be true under State intestate law. Charles A. Rothfeld: --Well, it's simply as to what Congress had in mind when it said a child is a child. You asked where marriage comes from in the statute. I think when Congress said a child is a child, as I think Justice Alito's question suggested, it would have had in mind the paradigm of a child at that time, which was the children-- Ruth Bader Ginsburg: But the words -- you say this is plain meaning. It says the child of a wage earner, an individual. It seems to me you are importing the term "married", because someone can be the undisputed child of a wage earner who is unmarried. So it's not a question of disputed versus undisputed. A wage earner can have a child, undisputed that the wage earner is parent, but the wage earner is not married. Charles A. Rothfeld: --Let me say two things about that, and first, to continue the question of where marriage comes from, there is a textual reference to marriage which appears in section 416(h)(2)(b), the companion to the intestacy provision upon which the government relies. Ruth Bader Ginsburg: But I thought we weren't supposed to look to (h) at all. Your thesis is (e) covers it and there is no reason to refer to (h). Charles A. Rothfeld: But I think (h) reflects what Congress had in mind in the statutory definition. Because in the provision that I'm referring to Congress said that if the parents went through a form of marriage that was defective in some sense, nevertheless the child would be deemed to be a child, which tells us that marriage, (a), was a significant part of what constitutes childness as defined-- Antonin Scalia: I don't, I don't -- look. When Congress says "child", "child" means child, and the mere fact that Congress wrote that at an age when most children were indeed children of married people doesn't change the word "child". I mean, we don't go back and say -- Congress often uses words that go beyond what -- what their immediate concern is, and here they use the word "child". Charles A. Rothfeld: --But-- Antonin Scalia: You want us to probe their mind and say, well, since 90 percent of all children were children of married people, that's what they must have meant by child. I just don't think that follows at all. "Child" means child. Charles A. Rothfeld: --If I may, Congress wrote a Federal definition of Mr. Miller acknowledged in his opening argument, when Congress defined "child" it defined "child" to include a number of things. The first thing that it defined is a child is a child or adopted child, stepchild, grandchild, step-grandchild. Congress used the word "child" to have a particular meaning, because it said a child is a child and other things. The other things that it mentioned were-- Elena Kagan: But, Mr. Rothfeld, I guess the question is, when it says a child is a child does it mean a child is a child born in wedlock or a child is just a child. And we know that Congress knew how to distinguish between the two because Congress distinguished between the two in this very act in the dependency provisions. It talks about the legitimate child of such individual. Well, here it didn't add that word. It just said "the child". Charles A. Rothfeld: --I think the reason it did that, again as Mr. Miller said, child used the "child" in two senses. It used the word "child" in the generic sense, everyone who qualifies for child benefits is a child. So it said "child" is, in that sense, a child, adopted child, stepchild, so forth. In the dependency section Congress is referring to all children, all children in that, in the generic sense, everybody who qualifies for benefits as a child. And therefore Congress had to distinguish between what we say it meant when it said a child is a child, natural child of married parents. Elena Kagan: Are there any other statutes that you can point to around this time which support the notion that when people said "child" they meant child within a legal marriage? Charles A. Rothfeld: I can't point to specifically that, because I think it was clear when Congress used the word "child" that that's what they had in mind as a generic matter. As I suggested, when-- Elena Kagan: I'm sorry, you can't point to anything because it's so clear? Charles A. Rothfeld: --In a sense, that's right. If everyone knew what the word -- the word "child" was used to define, I think, the category that people would have had in mind when they thought of a child in the legal sense. Ruth Bader Ginsburg: Mr. Rothfeld, don't you run into a problem, perhaps not in 1939; but since then this Court has had a number of decisions that deal with the distinction between children born in and out of wedlock, and in some of those cases it has held that the distinction between the two is unconstitutional, that there are no illegitimate children, all children are legitimate, whatever their parents may be. Charles A. Rothfeld: That is true. But I think the question is, what was the intent of Congress when it wrote this statute in 1939? Ruth Bader Ginsburg: Yes, but if we are going to apply those equal protection decisions to this statute-- Charles A. Rothfeld: Well, that -- that to me suggests that an unfavorable application of the statute to children born out of wedlock would be unconstitutional. But the question is whether or not Congress intended to provide benefits to these children. Elena Kagan: Well, I suppose the question that is argued at the very least is getting us into a situation where we should interpret the statute the government's way because of constitutional avoidance concerns. Charles A. Rothfeld: I think that -- contrary to that I think you should interpret it our way because the government's application disfavors children who are born through, you know, artificial -- through assisted means by its incorporation of State law. Antonin Scalia: It disfavors children who are born after the father has died. Which is in accord with the title of the statute: Survivors Benefits. What is at issue here is not whether children that have been born through artificial insemination get benefits. It's whether children who are born after the father's death gets benefits. Charles A. Rothfeld: But I think -- I suspect the reason that Mr. Miller was resisting your questions on that point is there is no question that children who are born, who are pro-conceived naturally in the marriage and are born after the father's death are deemed to be dependents and receive benefits. That has been the consistent position of the agency, and we think that that is clearly right. So -- I don't think that the fact the child was born after death says dispositively that they were not dependent upon-- Sonia Sotomayor: I am interested as to what your definition of child is. Is it just a biological offspring? Is it limited to a biological offspring born of a particular marriage? But in what context? Because we go back to Justice Ginsburg's question of what happens if the -- if the decedent is the mother. There is no question that she bore this child. Married or unmarried, does it matter? Does marriage matter only if it's the father that's the decedent? What is your -- if you are a sperm donor, does any offspring that sperm donor have qualify? Charles A. Rothfeld: --No, we think not. Because what we think Congress had in mind when it said in the first part of clause I of the definition of child is the child -- the natural child -- and I use natural as distinct from adopted child or stepchild which were dealt with separately in the statute, which is why we think is clear that Congress was there talking about natural children, biological children, the natural children of married parents, which we -- as I say the reason we think-- Sonia Sotomayor: So the mother who is unmarried who bears a child, this child is not automatically covered. Charles A. Rothfeld: --We think that as Congress wrote the statute in 1939, that's correct, and that child would then have been referred to the intestacy provision on which the government relies, and-- Sonia Sotomayor: Oh, so there are situations in which you think those provisions should govern. Charles A. Rothfeld: --Yes. Absolutely. We think that those provisions were added as an additive provision as a mechanism for children who did not qualify for the definition to be deemed a child. Sonia Sotomayor: This is what was not clear to me. So you are -- you are not arguing that "child" has just one natural meaning. Charles A. Rothfeld: We -- we argue that Congress used the word "child"-- Sonia Sotomayor: In whatever meaning you could give it. Charles A. Rothfeld: --We -- I wouldn't say that. I think that when Congress said a child is a child, which is the provision of the statute we were referring to, is distinguishing the child from the adopted child and stepchild, and we think they were doing it in the context of marriage because A, that was the paradigm of family relationship at the time. B, we think the reason -- what Congress was very concerned with accomplishing in the statute was that -- guaranteeing certainty in the parentage -- in parentage and the parental relationship. And it set up a system of -- because in 1939 there were no genetic paternity test. There was no -- it was impossible to be absolutely, scientifically certain as to who the -- at least as to father was. Congress set up a series of proxies to establish whether or not the applicant for child benefits was in fact the child. The principal one of those was the marital relationship because in 1939, as I think Justice Scalia's question suggested, there was a very strong virtually per se conclusive presumption that a child born in marriage was the biological natural child of both of the father and mother of the married couple. And so the existence of the marriage was a way of establishing in 1939 dispositively that the child was the child of the parents, the child of the survivor -- of the insured whose eligibility for benefits are being invoked here. Elena Kagan: Mr. Rothfeld, I'm curious why you didn't argue a different theory which is that (e) refers to all biological children whether in marriage or outside of marriage and the (h) is set up for cases in which biological status is contested. I mean, what would you think of that theory? Charles A. Rothfeld: Well, I -- we would certainly embrace it if the Court were-- Elena Kagan: Well, why didn't you argue it? Charles A. Rothfeld: --I think -- we think that we are arguing essentially a, sort of a subset of that theory. Our sense of what Congress was up to was that it wanted to assure certainty, as I just said in response to the previous question in establishing parentage. And the principal way in 1939 that Congress could do that was by A, invoking existence of a parental relationship which established sort of as a pro se matter that the children born within the marriage were the children of each of the married -- each member of the married couple. For parents -- children who do not fall into that category there was this additive provision of section (h) which provided a mechanism for doing it and establishing that State intestacy law would recognize this child as the child of, typically it was going to be the attorney that was contested -- the child of the father -- each established a mechanism for doing that. So I think that we are getting to the same place that your question suggests. John G. Roberts, Jr.: What if -- What if the children -- well, I don't want -- the Capato twins were conceived four years after of the death in this case? Would your argument be the same? Charles A. Rothfeld: I think that our argument would be the same, but as a practical matter, almost all of these cases involve who were born relatively soon after-- John G. Roberts, Jr.: Why is that? Why would they all involve children born relatively soon after? Charles A. Rothfeld: --They don't necessarily have to, but I think the practical reason why they do is that it's often the case that the surviving mother has children to produce a family sibling for an already existing child as was-- John G. Roberts, Jr.: But there is no reason it couldn't take place four years after. Charles A. Rothfeld: --There is no reason, that's correct. John G. Roberts, Jr.: So what happens if the biological mother remarries or something and then goes through this process? Does the child get double survivor benefits or -- which -- I assume you would argue that in that case the child is eligible through two different routes. Charles A. Rothfeld: Potentially, that's correct. There are rules in the act that prevent double recovery of survivor benefits, so I don't think that would be an issue that would arise here. Ruth Bader Ginsburg: --Mr. Rothfeld, these children were born 18 months after the insured wage earner died. If we look to other categories of children, say, stepchildren, and there is also one for adopted children, for stepchildren, they qualify only if they had that status no less than nine months before the wage earner died, and adopted children is also a limitation. The stepchild and the adopted child, there could never be any question of being born 18 months later. They wouldn't qualify. There is a time limit for the other children. And if Congress had thought about this problem, maybe it would put a time limit on this, too. Charles A. Rothfeld: Well, I think that the question that the Court has to confront is, Congress wrote a Federal definition of the word "child". And it was -- sort of the first question in the case, I think, is whether we are correct in our understanding that when Congress wrote this definition, all applicants for child survivor benefits fall within that category, those defined categories qualify. And then we have -- if the answer to that is yes, and so children as defined in clause I of the definition, which we think that the Capato children do, whether or not all children so defined qualify for benefits without regard to State intestacy law. If we are right about that, then that raises the question, what is the meaning of "child" in the statute. And we think that-- Stephen G. Breyer: The question is, what you haven't mentioned the text that suggests you are not right, which is right in (h) which says, "In determining whether an applicant is a child of an insured, the Commissioner shall apply such law as intestacy law. " Okay? That's what it says. Now, how do you get out of that? Because you say well, there is an implicit exception. Charles A. Rothfeld: --No, no that's no what the-- Stephen G. Breyer: You are saying that that doesn't apply. And so I've listened carefully to your reasons for saying why (h) doesn't apply when its language seems to say it does apply, and I'm not sure of why it doesn't apply. I mean-- Charles A. Rothfeld: --Because-- Stephen G. Breyer: --Suppose that two parents have lived together for six years and four months in State X, and they have a child. Fine. The father dies. Were they married? They never went through a ceremony. Is there a common law marriage? Might it depend on the State? Do you know the answer in every State? My answer is: You don't know. And I don't know. And, therefore, we have to look to the law of the State in order to see whether that (e) is satisfied. Now we have to look to it to decide if they are married. Even you say that. So what Congress did is it found a pretty good shorthand way of saying where you look. We are not going to worry about six years and two months; we are just going to look at their intestacy law. That, as I read it, is what it seems to say. Now I have been listening to you listening to you, and I don't see how you're going to save us from even worse problems, particularly when I started looking at the state of the artificial insemination and so forth, and every State has a dozen different variations; there are uniform acts, there are things you have to acknowledge in writing. It's a very complicated subject. And -- and that's why I am rather hesitant to read it the way you want. But I want you to reply to that. Charles A. Rothfeld: --Well, the answer to the first sentence of section (h), if that were the only thing in the statute, I think that you would be right, but there's a second sentence to (h), which says in -- in applying State intestacy law, the -- the Commissioner is supposed to look at the status of an applicant and determine whether or not the status of the applicant is the same as that of a child. And if so, the applicant is deemed to-- Stephen G. Breyer: Where is that sentence? Charles A. Rothfeld: --That appears in-- Stephen G. Breyer: Is it the bottom of the paragraph? Charles A. Rothfeld: --The bottom of the paragraph. Stephen G. Breyer: It says "applicants who according to such law would have had the same status relative to taking intestate property as a child or a parent shall be deemed such. " So? Charles A. Rothfeld: But as a child. Why does it -- it requires a comparison to someone who is a child. Child is defined in section (h). If -- if -- I think the problem with the government's interpretation of the first sentence of that -- of section (h) is that it makes the -- the statute circular. Antonin Scalia: I haven't found the sentence you're talking about. Where is it? Stephen G. Breyer: At the bottom. Antonin Scalia: Bottom of what? Charles A. Rothfeld: It is at page 9A of the government -- the appendix to the government's brief. Stephen G. Breyer: It's sort of like a -- you say there is no board of taxes. Sorry, I don't think that. But -- because they used the word "deemed". Is that right? That's the heart of your argument. Charles A. Rothfeld: Well, that -- that's our explanation of what Congress is up to in the statute. It -- it-- Stephen G. Breyer: All right. Okay. Charles A. Rothfeld: --It was an additive provision that says that if you are the same -- and I think this is an important point, Justice Breyer -- if you are the same as a child, you are deemed to have child status. You can't-- Elena Kagan: But, Mr. Rothfeld, why can't one just say, well, first sentence, whose child? Look to State law. Second sentence, when State law treats other people as children, you should treat them as other -- as children, too. So the two sentences can cohere fine. For children, look to State law, and also look to State law to see who they treat just like children. Charles A. Rothfeld: --But I -- I think that is not a plausible reading of -- of the text of the case. Stephen G. Breyer: The obvious practical thing is-- Elena Kagan: Well, why not? Stephen G. Breyer: --is that -- that, you know, once you get beyond this and the child wasn't even -- if he's conceived -- or what the father could do, couldn't he just write a note and say this is my child even if it's conceived later, and then wouldn't he fall within one of these other exceptions, the exception for being acknowledged? Charles A. Rothfeld: He -- he would not. The father did in fact write such a note, but I -- I-- Stephen G. Breyer: He has acknowledged in writing that the applicant is his son or daughter. What about that one? Charles A. Rothfeld: --I -- I think that the problem is that that has to be during the life of the father. Stephen G. Breyer: Does it? He doesn't say it. I mean, it seemed to me easier to work with that one than the one you're trying to work with. But I -- I don't know. You're the -- but -- but anyway, what I'm worried about here-- Charles A. Rothfeld: Well, I don't want to argue against my -- my position. Stephen G. Breyer: --No, no, I know. [Laughter] Okay. What I'm actually worried about and want you to address is, I just -- if we were to adopt what you said, what they're concerned about is many different applicants coming back later -- that's what State intestacy is concerned about. And you don't really know who their parents is. Another thing is there are already children who are eating up all of the money. And then some new person shows up and you have to take the money away from the other children in order to give it to this new child. And all the time, you don't know if that's what the parent who was dead really wanted. And so that's why the States have gone into All kinds of writing requirements. And -- and you want us to sort of -- applying this old law to new technology, just overlook those complications. Charles A. Rothfeld: Well, Congress wrote a Federal definition of "child", and it's not an extraordinary thing for Congress to write a statute that has language that applies in certain circumstances and then the world changes. New developments require application of the statutory text to those new developments. If -- if our reading of the statute is correct -- if what we think the Congress had in mind when it wrote this statute was that it wanted to set in place categories of applicants for child benefits as to whom parentage in a relevant sense could be determined with certainty, and it did that by focusing on status of the marital relationship between the parents, and it did it by providing an alternative basis in section (h)-- Ruth Bader Ginsburg: Well, that would be fine if the statute said what you claim it said. It says a child is a child of a wage earner. And you'd have to import these things that Congress didn't say to get to what you claim is the plain meaning. But what do you do with the sentence in (h)(2)(A) that says "in determining that an applicant is a child of an insured individual for purposes of this subchapter. " The subchapter is not for purposes of (h), but for purposes of the entire subchapter, which would include (e). Charles A. Rothfeld: --But -- and I think actually that is a helpful point for us, Justice Ginsburg, because in determining whether an applicant is a child for purposes of the subchapter, it's referring to the use of the word "child" in the generic sense. In the sense -- when -- when Congress said a child is defined to include people who fall in these various categories of children. So everybody-- Ruth Bader Ginsburg: But how could it do that when the rest of the sentence says, "to determine whether an applicant is a child for purposes of this subchapter, the Commissioner shall apply the State law of intestacy? " Charles A. Rothfeld: --But I -- I think that -- that these two sentences have to be read together as accomplishing the same thing. When I -- I think what the -- what it's saying that in making the determination whether or not a child qualifies for child benefits, that the Commissioner -- applicants reporting to such law would have the same status relative to taking intestate personal property as a child shall be deemed such. I think one can't apply the statute without knowing who a child is, because if -- it is directing the Commissioner to engage in a comparison. It's directing the Commissioner to say does this applicant have the same status-- Elena Kagan: Well, that's exactly right, Mr. Rothfeld. But you have two choices. In the second sentence, you do have two groups, and one has to be compared to the other, which is children. The question is, are children described by the first sentence of that, or are children described by the (e) section? So you're just reading the first sentence out of the statute and saying that the second sentence totally subsumes the first sentence and we have to go back to (e). But the first sentence exists. And it says who are children? Children are who they are under State law. Charles A. Rothfeld: --No, and I -- I think though what it's telling the Commissioner to do is to determine whether or not, when an applicant who does not fall within one of the defined categories of section (e) applies for benefits, the Commissioner is to determine whether or not that child has the same status relative to State law as the child as defined in the definitional section. I mean, Congress -- as I say, Congress said expressly that a child as defined in section 416(e) of the statute qualifies for benefits. And so I think it establishes a Federal standard as to what -- what a child is for purposes of the act. The Court has to determine what that standard means to apply to any particular child. John G. Roberts, Jr.: Counsel, under Chevron, you lose if the statute is ambiguous. Is there any reason we shouldn't conclude based on the last hour that it's at least ambiguous? [Laughter] Charles A. Rothfeld: It's a mess. I think the problem is that we're dealing with new technologies that Congress didn't develop -- wasn't anticipating at the time. I think -- one of the questions that was suggested to my friend, Mr. Miller, by Justice Alito, I think, is that if the child who -- in 1939 -- who was the -- the child of married parents, natural child of married parents, sought benefits under this statute and they were denied because some State developed an aberrant law of intestacy and said that such child would not qualify, be not be deemed to be the child of their parents, I think that that would have been regarded as -- as clear misreading of the statute. Sonia Sotomayor: How -- do you think that Congress thought of either of these situations as real possibilities? Do you really think that the 1939 Congress, or even the one that passed the later statute, ever thought that a State would disinherit a naturally born -- all naturally born children -- or that children could be born 18 months, 4 years, 50 years later? Charles A. Rothfeld: Well-- Sonia Sotomayor: They weren't thinking of either. So the question becomes, given the language of (h) that says define "child" this way throughout the subchapter, why shouldn't we give that directive its plain meaning? That's really the argument that you have to convince us of. Charles A. Rothfeld: --Well, if we have to convince you not to give the statute its plain reading, then -- then we will not -- going to prevail. I certainly recognize that that plain meaning has to control. And as I suggested at the outset, the reason we think we prevail is that the plain meaning of this statute as was written in 1939, and as it would have been understood by the 1939 Congress that adopted it -- was that the actual children of married parents, the paradigm of the situation of the child at that time, would fall into this category. Now, it is certainly true, as you say-- Sonia Sotomayor: That's because every State law recognized them as such as well. Correct? Charles A. Rothfeld: --And every State law -- I would put it the other way: Every State law has recognized them as such because that was the way in which children were understood -- the meaning of the term "child" was understood at the time. Ruth Bader Ginsburg: Going back to 1939 understanding, wasn't it also understood that the marriage ends when a parent dies? Charles A. Rothfeld: Well-- Ruth Bader Ginsburg: So there wouldn't be -- a child that is born 18 months after the father died wouldn't be considered a child of the marriage, because the marriage would have ended. Charles A. Rothfeld: --Well, I think that one has to look at what the Congress at the time -- I guess I'll put it this way: If -- if the Court were to accept our view that Congress had in mind the children of married parents, the question is whether any particular child falls in the box Congress would have regarded as the marital box or the non-married box. Situations like this simply could not have arisen in 1939. Congress would not have -- as Justice Sotomayor said, Congress would not have specifically had in mind, contemplated the question of posthumous conception. Antonin Scalia: Mr. Rothfeld, I know that the government didn't rely on it, but just to satisfy my curiosity, how -- how can this child satisfy the requirements of (d)(1)(C), with regard to dependency upon the father? Charles A. Rothfeld: I guess two responses to that. One, as Mr. Miller said, this -- that issue has -- was remanded to be addressed by -- by-- Antonin Scalia: I understand. But-- Charles A. Rothfeld: --But the answer-- Antonin Scalia: --that is connected with this other issue. Was-- Charles A. Rothfeld: --The answer -- the answer why we think -- and if I may, Mr. Chief Justice, answer it, the reason that we think we would prevail on that question is because as Mr. Miller said, Congress created a -- an irrebuttable presumption that the child of -- the legitimate child of -- of a parent is deemed to have been dependent upon that parent at the time of the parent's death. And that-- John G. Roberts, Jr.: Thank you, Counsel. Charles A. Rothfeld: --Thank you very much, Your Honor. John G. Roberts, Jr.: Mr. Miller, you have 4 minutes. Eric D. Miller: Thank you, Mr. Chief Justice. Since the Social Security Administration has consistently interpreted the act to require all natural children to establish their eligibility under 416(h), either by establishing that they can inherit under State law or by showing that they qualify under one of the express exceptions. Elena Kagan: Mr. Miller, what do you think is wrong with the alternative theory that -- that I suggested, that (e) is all biological children in a marriage, not in a marriage, doesn't matter; and that (h) is designed to deal with situations in which biological status is contested? Eric D. Miller: Well, I -- the principal problem with that, I think, is that it lacks -- it's not supported by the text of what 416(h) says. Elena Kagan: But why do you think that? What would you point to in (h) that is inconsistent with the theory that I just gave you? Eric D. Miller: I would point to (h)(2)(B) and (h)(3), both of which are -- are the exceptions to allow people to qualify when they can't establish State intestacy rights, and both of which refer to someone who is the son or daughter of the insured person but is not, and is not deemed to be, the child. So if biological parentage were -- were what was determinative under (e), and if you only looked at (h) when there was some question about biological parentage, it would -- the idea of someone who is a son or daughter but isn't a child would make no sense. And so to give effect to those meanings -- to give effect to those provisions, to give them meaning, 416(h) has to have broader application than just in cases of disputed biological parentage. It is in fact the gateway through which everyone has to pass, and that's how the -- the agency has -- has so regarded it. The final point I would make is simply that even if the statute were silent on whether to look to State law, it would be appropriate for the Court to hesitate, I think, before creating what in effect is a body of Federal common law about parental status. Here, of course, there is an the express textual command the other way, and it would be particularly inappropriate to create as Respondents are urging, a Federal rule that goes well beyond what any State would allow in the context-- Samuel A. Alito, Jr.: Why doesn't the last sentence of -- what is it -- (h)(2)(A) show that Congress had in mind a certain idea of a category of people who were indisputably children? I don't see how you can get around that. Because it says what you are looking for under State law is to determine whether someone has the same status relative to taking intestate personal property as a child. Eric D. Miller: --I -- I think the answer to that is the one suggested by Justice Kagan a few minutes ago, and that is that you have to read the first and second sentences together. And the first sentence sets up a general rule that you are looking to State law, and then the second is about people who would have the same status as children under State law, so that the basic background definition in -- in either case is coming from State law. Samuel A. Alito, Jr.: So if the person is a child, you have applicants who according to State law had the same status as a child, a person has that status because the person is a child, and the person is deemed to be a child -- it seems very clear that that shows that (h), that this provision is directed to people that Congress in 1939 did not think fell within this paradigm of a child. Eric D. Miller: The -- well, the second -- maybe, I may be misunderstanding you, but our view of what the second sentence does is that it covers people who are not treated as children, who are not children under State law, but nonetheless have the inheritance right of children so principally the -- in the case of equitable adoption, those people would have the status of children. John G. Roberts, Jr.: Thank you Mr. Miller, Rothfeld. The case is submitted.

Earl Warren: Very well. Number 98, National Labor Relations Board, Petitioner, versus Metropolitan Life Insurance Company, Number 98. Mr. Friedman. Daniel M. Friedman: Mr. Chief Justice, may it please the Court. This case which is here under writ of certiorari to the Court of Appeals for the First Circuit brings before the Court the standards which the National Labor Relations Board follows in determining what is an appropriate unit for purposes of collective bargaining by Insurance Agents. More specifically the question is whether in selecting as an appropriate unit a single district office of the Metropolitan Life Insurance Company in Woonsocket, Rhode Island, the Board violated Section 9 (c) (5) of the National Labor Relations Act. That is a section that was added to the statute in 1947 and states that in selecting the appropriate unit the Board shall not treat the extent to which the employees have organized as controlling. The Court of Appeals in this case held that the Board in selecting this unit had violated that standard, not as we read the opinion because it was anything in the Board's decision in this case to show that it had treated the extent of organization as controlling but because of the fact that in six other cases also involving the selection of appropriate units for Insurance Agents. In each case, the unit which the Board ultimately selected in some instances a single district office and other instances I shall explain a combination of offices. In each case, the unit which the Board selected as appropriate was the same unit that the union had requested and the Court of Appeals stated it was unable to reconcile this conflicting decisions of the Board and it therefore drew the inference that in all of these cases including this one, the thing that had controlled the Board's selection of the appropriate unit was the extent of organization. Now, our position is this, we think we can show and I'll attempt to show that in selecting this particular unit, that is a single district office, the Board applied its settled principles which it had consistently applied in various fields in selecting appropriate units. But there was no abuse of discretion in so doing that its various decisions dealing with insurance agents are consistent and all of these come down basically to the question of statutory interpretation which is what does it meant when -- if the Congress says that the extent of organization shall not be controlling. We say all that it meant was that the Board could not base its decision solely on the fact of extent of organization but the Board may in deciding these questions consider the extent of organization. Arthur J. Goldberg: Mr. Friedman, did it mean it is something underlying and that is a sense of the Congress that the Board in decision-making prior to that time is following a practice which the Congress did not approved? Daniel M. Friedman: I -- I think that's right Mr. Justice and as I will develop, we think the legislative history shows that despite this limitation nevertheless the Congress did recognized that the Board could select small units if they were appropriate under the standard criteria. I'd like to just mention before coming to the facts that this decision of the Court of Appeals of the First Circuit is contrary to the decisions of three other circuits, each of which has upheld a Board determination of this appropriate unit on the same basis that the Board went on in this case. Now, there's no basic dispute over the facts in this case. The record which is before the Court has read a long document consist primarily of the record in another case involving the selection of appropriate units in Delaware and the facts developed in that case relate to the general operation of the company and I -- whereby stipulation included in the record in this case. The company sells insurance throughout the United States and Canada. Its operations admittedly are very highly centralized in the main office of the company in New York City and in the main office under the main office procedures very detailed standards and methods of operation are provided, the company details in great specificity just how the business is to be conducted at the local level. The company for operational purposes divides its business into 14 large territories. Each of which includes a number of states and each of which is under the direct supervision of a company official called the superintendent of agencies. Now, within each one of these 14 territorial districts there are in turn a large number of district offices and it is to the district offices to which the individual agents who sell the insurance are attached. The particular office with which we're here dealing in Woonsocket, Rhode Island is in the company's New England territory which embraces five states and the State of Rhode Island itself has eight district offices and this particular district office employs 23 agents. Each of the district offices of the company is under the supervision of a district manager who may have one or more assistants. And the district manager in turn is directly responsible to the superintendent of agencies. In other words, the chain of command within this company is from the superintendent of agencies in the main office in New York directly to the district manager at the local level. As the vice-president of the company explained, he characterize, he says the district manager is the chief executive in his particular district. And this man as the chief executive has immediate supervisory authority over all the agents in his district. The actual hiring of the agents is done by the home office but the responsibility for recruiting new agents is placed upon the district manager and it's up to the district manager to solicit applicants for openings as they arise and if he finds a man is suitable and sends -- and sends the recommendation forward to the home office and the record shows that approximately three quarters of his recommendations are accepted. When a new agent is selected, he gets his initial training for two weeks period in the home office and then he reports to his district where he undergoes further training both in the office and in the field under the supervision of the district director and more -- manager and more directly under the assistant manager. The manager among other things regularly reviews the agent's performance and although he has no power to fire just like his power to hire, he may recommend to the home office that the agent be fired. The evidence shows that there is virtually no shifting of agents from one office to the other. It's very little almost no transfer at all. The agents generally go to one office and they stay there. And in addition to that, there are no businesses or social contacts among agents except at the particular office level. Earl Warren: We'll recess. Mr. Friedman you may continue. Daniel M. Friedman: Mr. Chief Justice and may it please the Court. When the Court rose, I was pointing out that within the district there is virtually no social or business contact except -- I'm sorry, except within the district. The agents generally do not have any social business contacts among the district. And it's just one other fact I'd like to emphasize which is that when an agency becomes vacant and they -- they use the word ‘agency' to mean the particular group of customers that an agent has. When an agency in a particular district becomes vacant only the agents in that particular district under the company practice are illegible to bid to get that agency. Potter Stewart: There are eight district offices in the State of Rhode Island? Daniel M. Friedman: Eight district offices plus one or two what are known as the detachable offices. That is an office that is a separate little office but it's under the supervision of manager of the district office (Voice Overlap) yes. Potter Stewart: And Rhode Island is a pretty small state of (Voice Overlap) Daniel M. Friedman: Geographically, yes sir. Potter Stewart: How -- how far a product of Woon -- this is Woonsocket? Daniel M. Friedman: This is Woonsocket, and the next closest office is at Pawtucket 12 miles away. Potter Stewart: 12 miles away. Daniel M. Friedman: And if I may -- may say right here and now Mr. Justice Stewart that as we see this case the basic issue isn't where the all eight of the offices in Rhode Island could've been combined into an appropriate unit. The question is whether the Board who was justified in selecting this particular district because it's well settled but there maybe many different units that would be appropriate for purposes of collective bargaining. Byron R. White: But what precisely reflected in what the factory is determined. Daniel M. Friedman: Yes, our -- Byron R. White: Including only one office. Daniel M. Friedman: That -- that is correct -- Byron R. White: And the next office is 12 miles away? Daniel M. Friedman: Is 12 miles away but if I may put it -- if -- if I may refine still further Mr. Justice. The question is whether in selecting this particular office, the Board treated the extent of organization is controlling and our position is that the Board plainly did not that this particular district office maybe justified on the basis of the Board's traditional criteria. Byron R. White: Well, that maybe thought if you only have Rhode Island to look at. This was the first case that ever happened. Daniel M. Friedman: I'm -- I'm sorry I don't understand your question. Byron R. White: Well, you've got to look at what the Board did in this case, don't you, in connection with what is then another case? Daniel M. Friedman: Well, yes Mr. Justice and -- Byron R. White: Because they do it in the first time, this place has ever come out? Daniel M. Friedman: No, and -- and as I shall attempt to show what we think what the Board has done and the Board's decisions in all of these cases are fully consistent with a rationale that does not give controlling effect to the extent of union organization. Byron R. White: You mean any particular case is always consistent with the (Voice Overlap) Daniel M. Friedman: Well, I -- Byron R. White: -- a lot of them was the -- there was a lot of factors, but how about the whole bunch of cases together? Daniel M. Friedman: Well, we think we have to look at each particular case because what the Board does is -- Byron R. White: All by itself? Daniel M. Friedman: Well, you certainly can see what the Board has done in other cases but I suggest Mr. Justice that everyone of these cases is fully justifiable, on a rationale that does not show that the Board has again controlling wide to the extent of all the cases. Byron R. White: What about all of the cases together though you still haven't answer my question? Daniel M. Friedman: Well, I -- I think you -- you have to look -- you can't look at all the cases together in other words because -- Byron R. White: Yes, but you can look at every case on its own merit in connection with all of the other cases (Voice Overlap) -- Daniel M. Friedman: Yes, but -- Byron R. White: -- and you have to consider the other cases when you are considering one case. Daniel M. Friedman: Yes, we -- we have no quarrel. We're happy to have you look at all of the cases that the Board is handling in this field. We think -- Byron R. White: -- I'm glad you are. Daniel M. Friedman: That they all consistent we think. We think they are all fully consistent with the theory that the Board has expound and follow in this case. Byron R. White: But you don't want us to stop at looking at the result in each of the other cases? Daniel M. Friedman: Well, we -- we have no -- Potter Stewart: There's no issue with the other cases. It seems to be a unit with five dots, in other words obviously at least some indication that's the only organization. Daniel M. Friedman: Well, I've missed in it. Potter Stewart: Because in that organization -- Daniel M. Friedman: Well -- Potter Stewart: In the (Inaudible) rather large in each of the other states. Daniel M. Friedman: The extent of an organization did play a part and we think the statute does not, but let me -- if I may Mr. Justice -- Potter Stewart: And then while you're doing it give us one of these cases, this other cases where you've ever bearing in this organization -- Daniel M. Friedman: Well, in every -- Potter Stewart: In the narrower or broader case? Daniel M. Friedman: In everyone of these cases the unit which the Board selected was the unit for which the union petition. Now, let me -- if -- if I may just explain the basis before its basic theory in this area which has been spelled out most fully in a recent decision which we've set forth in the appendix to our brief involving some district offices in Connecticut. Arthur J. Goldberg: Mr. Friedman, before you you've given as to does -- does the only development of the facts of this case the footnote on page 15 (a) of the record, footnote 2, is that all that the Board said about the particular facts and certain standard in this case? Daniel M. Friedman: Yes, that's all it said but that they -- they referred -- Arthur J. Goldberg: First to another case -- Daniel M. Friedman: To the Metropolitan Life Insurance case which is a Wilmington case. Which is the case in which the full record was developed and which either takes and which it explains a greater detail, the reasons which later to adopt the ruling per -- perhaps it would be better Mr. Justice if I explain what the Board held in Wilmington and I think from then it will follow into some of the other questions I've had. The Board in the Wilmington case concluded that the individual district office of the company is in effect a separate administrative unit through which the company conducts its business. And they of course said it was inherently appropriate for purposes of collective bargaining. It then went on to say that the fact that the particular unit the particular single district is inherently appropriate doesn't mean that a combination would be inappropriate. And in the Wilmington case, it selected as an appropriate unit, the two district offices that the company had in the City of Wilmington, Delaware and it exclude a third district office which is located in Delaware, Delaware approximately 46 miles away from the City of Wilmington. And as we interpret the Board's statement at page 15 (a) of the record Mr. Justice Goldberg to which you referred all that they are saying there is, well, they say that since there is no recent history of collective bargaining, no unions seeking a larger unit and the district office sought is located in a separate and distinct geographical area, what they are really saying is that this case therefore, is an appropriate one to apply the basic principle announced in Wilmington that a single district office is inherently an appropriate unit. That's what they said here. There was no and as the Board explained that the Board has often taken the position. And that when a union comes in and asks for a unit that is inherently appropriate the union -- there is no reason why the union should be required to operate and try to organize employees collectively in a larger unit. And this -- this it seems to us is illustrated in these cases that what I like to come to what the Board does. The Board has basically two approaches here. When a single district office is sought and the union asked for a single district office the Board treats that as inherently appropriate. When the union asked for a combination of district offices the Board will grant that combination provided there is a degree, a reasonable degree of geographic coherence in the unit that it is sought. That is in some instances it may be the city itself, in other instances it may be broader, it may be the Metropolitan area. Well, the question maybe is what kind of a unit would not be considered appropriate in the insurance industry? Well, I think I could give the Court a very clear illustration of that which is the Wilmington case itself. The Board treated the two district offices in Wilmington as appropriate because they were physically in the city. Now, if the union had come in and said it wanted a unit composed of just one of those two districts in Wilmington plus the office in Dover, 46 miles away, I think this is a case where the Board would say those are not -- do not have sufficient connection in geographical contiguity to make them a separate unit. And we think -- we think there is nothing in the statute that was looking at the purpose of it that prohibits the Board from doing this. And I like to turn to the statute which is set forth on page 30 of our brief. Now, the basic statutory provision is Section 9 (b) which defines the Board's authority to select the appropriate unit and then I would admit when it come to the modifications in that which Section 9 (c) (5) provided. Section 9 (b) says that the Board shall decide in each case whether in order to assure through employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, was subdivision thereof. In other words this statute makes it clear that you don't define an appropriate unit in a vacuum. You define what unit is appropriate in terms of the basic policy for which units are designated, that is in order to assure the employees the fullest freedom in exercising the rights guaranteed under the Act. And indeed 9 (c) (5) specifically recognizes that that is the purpose for which appropriate units are to be selected because it says, in determining whether a unit is appropriate for the purposes specified in subsection (b) that is coming back to repeating to assure the employees the fullest freedom in the exercise of their rights. The extent to which the employees have organized shall not be controlling. Now, just what was the Congress find to get out of this provision and just what limitations does this provision put upon the Board's power to establish appropriate units. Prior to 1947, there had been a number of Board decisions including many in the insurance field in which the Board had created small units, primarily on the ground that if the employees were required to wait until there have been organization on a broader basis the effect of that would be to deny this particular group of employees their rights to collective bargaining. It's safe to say that so explicitly the Court to frequently uphold these facts. In other words these were cases basically in which under the Board's traditional unit criteria you could not sustain them weren't not for the fact that this is what the employees were seeking. And it was this practice that Congress wished to put a hold to. In other words, to prevent the Board from selecting an appropriate unit solely because this was the extent to which the employees had been organized. But we think the legislative history makes it very clear that Congress did not intend to prevent the Board from giving effect to the extent of organization only to prevent the Board from treating it as controlling. The opponents of the legislation criticized this provision because they said that it would prevent among other things the organization of insurance companies and other firms which are organized on a scattered basis which have widely dispersed operations. And Senator Taft explained why the effect of the statute would not be that and we've set out at page 13 of our brief a rather lengthy quotation which is from the supplementary analysis that Senator Taft made of the bill six days after it had been passed and to put them in Congressional records and I just like to read two or three sentences because we think it plainly indicates that what the Board is doing in these insurance cases is not something that 9 (c) (5) was intended to prohibit. And Senator Taft stated, opponents of the bill have stated that it prevent the establishment of smaller operational units and effectively prevents organization of public utilities, insurance companies and other businesses who's operations are widespread. It is sufficient answer to say that the Board has evolved numerous tests to determine appropriate units and he goes on and list these tests, community of interest of employees involved, extent of common supervision, interchange of employees, geographical consideration, etcetera, anyone of which may justify the finding of a small unit. I may just afford here for a minute to say that these various tests which are the test that the Board has had applied in the past and still applying it seems to me are clearly met by the selection of this particular district in this case. Arthur J. Goldberg: Well, Mr. Friedman, do I remember correctly the fact in recordings the Board used to find the single district offices inappropriate but would come to the sustain them on the extent of organization doctrine? Daniel M. Friedman: Well, I -- I think back in the 40's the Board did not find a single district inappropriate, it didn't have to get that far because as the statute was then being interpreted it looked only to the extent of organization. Arthur J. Goldberg: Then there was this change? Daniel M. Friedman: Then in 1944 in another case involving the Metropolitan Life Insurance Company the Board said that it was changing its rule so that organization of insurance companies was proceeding very nicely and rapidly toward a statewide basis and in these circumstances the Board concluded that it would not deny employees of insurance companies the effectuation of their rights under the statute to make them wait until there have been organization on a statewide basis. And that announced in 1944 that henceforth in the insurance field absence among exceptional circumstances it would not consider units less than statewide and that it follow that rule for 17 years. Abe Fortas: 61 (Voice Overlap)? Daniel M. Friedman: Until 61 and then it shifted. And during that period it frequently dismissed petitions of seeking units less than a single let's say as in statewide. Abe Fortas: Now, recently has the Board ever turn the union down on this unit that is organized in the insurance bill? Daniel M. Friedman: No, it has not Mr. Justice and I -- let me explain why that has been. In their appendix to their brief the other side cites 46 cases that the Board has decided since Quaker City in all of which the unit selected as appropriate with the unit for which the union petitioned. Thirty two of those, 32 of those, roughly two thirds involved single districts. The remainder involves some combination, either citywide, Metropolitan area wide. Again, in each one of these cases we think that they are consistent with the Board's basic rationale but you may combine, you may combine geographically coherent districts into a single appropriate unit. Arthur J. Goldberg: What was the basis for that case which said that the district office in the City of Iowa, and the office as far as North Dakota and Sioux Fall, South Dakota? Daniel M. Friedman: Well, those are two detached offices. Well, that is at a single district which the company decided apparently that was not sufficient business of whatever reason to set up separate districts in the other states. So, it attached those two districts to that particular district office. Arthur J. Goldberg: As an administrative (Voice Overlap) Daniel M. Friedman: As in administrative (Voice Overlap) Arthur J. Goldberg: Sort of a satellite? Daniel M. Friedman: That's right. And the Board always treats this satellite attached offices is part of the single district. Byron R. White: Does the district offices -- where we have any autonomy in labor matters? Daniel M. Friedman: No, it -- it has -- it has no autonomy in labor matters. Collective bargaining agreements are negotiated at the home office and in addition to that old grievances which involve questions under the collective bargaining agreement are taken up with the stress with the superintendent -- Byron R. White: (Voice Overlap) whether the unit was statewide for the district or --? Daniel M. Friedman: That's correct. And so the collective bargaining under the company practices would take place with the home office. I -- I might say Mr. Justice incidentally that under the company's theory, under the company's theory it's difficult to see how they come out and ask for a statewide unit. Byron R. White: That's right. Daniel M. Friedman: Because they say that the adminis -- Byron R. White: It has to be companywide. I mean there's a logical conclusion. For them its companywide bargaining? Daniel M. Friedman: Companywide or at least the territorial, the big territorial district because the say that's the administrative unit by which the company has. Byron R. White: The regions or whatever they are? Daniel M. Friedman: The region, in this case five states that that would -- that would seem to be under their theory the minimum size of the unit. And that of course is contrary to the Metropolitan case. Let -- let me if I may just add something explain why the Board in 1961 departed from the Metropolitan and then I should say that the Metropolitan decision during the 17 years it was in existence how it was a very unusual thing because ordinarily throughout this period, the Board decided questions of representation on the basis of particular fact. It didn't have automatic Board rules. And in 1961 when the Board overruled the Metropolitan case, it said that the experienced that it had under the Metropolitan rule indicated that organization of insurance agents had not taken place with the speed and effectiveness that have been anticipated. And it therefore said that the effect of the Metropolitan rule of refusing to certify less than statewide units had been to arrest the organizational development of the agents. And it therefore concluded there was no longer any basis for applying a different rule to insurance agents than it was applying to other industries and it therefore said we will henceforth apply our normal unit principles to the cases as they arise. And we -- we think that's precisely what the Board has been doing in this field it has been applying its normal unit principles. I just like again to stress because I think this is the factor that we think led the First Circuit into error in finding an inconsistency in the Board decision. I'd like to stress that the question isn't whether there are some other unit that might be more appropriate. The question is whether the particular unit is an appropriate unit and the Board has frequently recognized in these cases that said that, “Well, perhaps a larger unit might be appropriate, perhaps a smaller unit might be appropriate,” but in all effect as we consider this particular unit is appropriate and that's what we think the Board has done in this case and we think this was well within what this Court has acknowledged to be, to be broads Boards discretion in selecting (Voice Overlap) Potter Stewart: Well, the real question is whether or not the Board let the extent of organization be the determining factor, the controlling factor -- Daniel M. Friedman: In the Board's -- in the Board's decision and as the Third Circuit has pointed out Mr. Justice Stewart in upholding the Board's decision in the Wilmington case the fact that this was the controlling consideration in the union's decision. To seek this unit is not the question. The question is was the Board controlled by the extendable organization. Potter Stewart: And that is the question? Daniel M. Friedman: That is the question. We think that in this case the Board is permitted to take into account the union's request and it has however not made its decision solely depend on the point, it was not controlled by this. It's admittedly was influenced by it but that is we think no more than statute allows. Potter Stewart: Well Mr. Friedman, you say the Board has decided that this is -- that the single offices inherently, inherently inappropriate unit. I suppose the administrative agents is going to stop there with those federal agents, should they claim some (Voice Overlap) Daniel M. Friedman: Well, they -- Mr. Justice the Board -- Potter Stewart: It didn't in this case, did they? Daniel M. Friedman: They didn't in this case but they did in the Wilmington case. Potter Stewart: Well, that means -- that means that just inherently this way no matter what state it's located in, no matter what district office that's in -- that is involved with a particular case just inherently a (Voice Overlap) Daniel M. Friedman: Well, not -- it's not an (Voice Overlap) Potter Stewart: So it's a big unit? Daniel M. Friedman: Perhaps, inherently is an unfortunate word in this context to -- Potter Stewart: Oh, If it -- if it isn't an adequate word then I would think that in any particular case especially in view of the series of cases that Board has had that -- that the Board ought to explain why the difference between this case in some other case where a multimember multidistrict unit has been -- has been proved or why in this case the district office 12 miles away shouldn't be included in the unit? Daniel M. Friedman: Well, -- Potter Stewart: Other than that, I mean it inherently doesn't carry that kind of phrase. Daniel M. Friedman: Well, if -- if I may answer, I -- I think that three part to your question Mr. Justice may I -- I may try to answer it separately. First, in the Wilmington case which was the basis of the Board's decision in this case, the Court did explain the reasons why the single district office as a separate administrative unit of the company was an appropriate unit. And -- and the Board has also -- Potter Stewart: I think if you -- do you think that means everywhere now? Daniel M. Friedman: That's right. The Board says that where -- wherever you have a -- I -- conceivably if you had a different factual record, if you had a different factual record in an unusual thing but there is no question in the case that all of these district offices throughout the country are operating the same way, I mean we have the record in this case, in the Wilmington case which has been stipulated in this case, stipulated (Voice Overlap) Potter Stewart: Well, tell me that if a -- say that you've got a -- you've got a case where this -- they -- they go through this routine and say that a single office, a single district office is the appropriate units inherently this way and in the next case I guess the unions organized two offices and so they say well so as a -- so was our -- the two district units, the -- that's appropriate too. But the only difference between the two cases happens to be the extent of organization? Daniel M. Friedman: Well, no Mr. Justice. The two -- Potter Stewart: Well, different names of the district offices -- Daniel M. Friedman: The two dist -- Potter Stewart: There are different states -- Daniel M. Friedman: The two districts would have to have something more than the fact that the union had organized them. If -- well let me -- Potter Stewart: Did anyone ever explained what that is, other than inherently? Daniel M. Friedman: Yes, it's a geographic coherence. If I may illustrate with one -- another case, let's assume for the sake of argument -- Potter Stewart: I think inherent is coherent? Daniel M. Friedman: Let's assume there are ten offices in the District of Columbia, they are scattered all around and the union first organizes a single district office in the upper northwest. It can't organize any others except a single district office in the lower part of southeast but the opposite parts of the town I don't think the Board could find that those two district offices constituted inappropriate unit, they are miles apart, these two are separate -- Potter Stewart: Even though in Chicago, you had them 127 miles apart. Daniel M. Friedman: Well, it weren't quite that far but again Mr. Justice they were about 30 -- Potter Stewart: Well, how far was it? Daniel M. Friedman: -- 33 miles from the upper -- from the suburbs to the center of town. But again in Chicago there -- there was a geographic basis for it. This was the city line, this was the line of the city. Thank you. Earl Warren: Mr. Zorn. Burton A. Zorn: Mr. Chief Justice, may it please the Court. I think the discussion up to this point would lead to this comment as to the nature of the question presented here for review. I believe that in this case particularly when we're dealing with the statute of this nature which prohibits certain kinds of conduct on the part of the Board it is perfectly obvious that the Board if it should ever violate the statute would never say so. And my friend has been arguing constantly that this Court should in effect be bound by what the Board said in justification of its decisions both with respect to what it calls a single administrative entity and with respect to the other doctrine of geographic coherence. I submit that on the record of these cases where in every single interest -- every single instance and every case involving this company the Board has found appropriate a unit which is precisely the unit which has been asked for by the union and exactly coextensive with the extent of union's -- the union's organization at that time this Court will very properly look at the results of what the Board has actually done and not be bound by certain assertions made by the Board. Now, with respect to the assertions here, I think we can get those very quickly. Mr. Friedman argues that all the Board did in these cases was to apply settled established principles of the Board. We say that we can demonstrate very shortly that that is absolutely not the fact, it is not so. He says further that the Board applied its doctrine coherently. A quick review of the facts which I will come to in a moment will demonstrate the most irrational kind of diversity with respect to all of the units found by this Board tailored to fit the union's request and the only constant fact to Your Honors which appears throughout everyone of these cases and there is only one single factor which is constant or the common denominator for all and that is the union's request and the limited extent to which the union has organized the employees at that particular time when its request is made. Byron R. White: But I suppose you could win all your other cases and lose this one -- Burton A. Zorn: I don't think so. Byron R. White: Even on your argument? Burton A. Zorn: I don't think so because I will come in a moment -- Byron R. White: Well, there are some units that's -- Burton A. Zorn: Yes. Byron R. White: There are some units that appropriated. Burton A. Zorn: May I come to that in a moment, because this administrative entity -- Byron R. White: Because that's this case? Burton A. Zorn: That's this case but this case has another factor in it, Your Honor. This case also has in it if the factor that the Board rejected the company's request for the inclusion of seven other offices which the union had sought unsuccessfully to organize all or which were located in the Metropolitan area of Providence, Rhode Island and it rejected that because the nearest office was 12 miles away. When I come to review the facts very briefly, the fact is that the farthest office was only 24 miles away when in fact in other cases in adopting its so-called Metropolitan area concept flowing from its geographic coherence doctrine, the Board included units which were 30 miles away, offices which are -- and detached offices and I'll come to that in a moment which are as far as 284 miles away and of course when we get to Chicago that is the most revealing of the consistency of the Board. It shows so plainly how the Board jumped from failure to post in order to accommodate the extent of union of organizations. Now, I don't want to get into the facts nor do I have time to get into the facts with respect to the organization and the operation of a company and its administrative subdivisions. All I think I need to point out here Your Honor is this, in every case despite the argument of my friend where every single factor with respect to the administration of the company, its operation and its control was absolutely identical with the facts upon which the Board has ruled in these cases. The Board over the years has repeatedly and uniformly held that these single district office units and citywide units were completely inappropriate except on the basis of the limited extent of the union's organization and if Your Honors will look at page 16 of my brief but I will not quote from, you will see contrary to what my friend has said that the only way those cases can possibly be read is to be read when the word -- Board uses the word ‘solely' on the basis of extent of organization controllingly on the basis of extent of organization. The Board had all of these criteria well developed at the time it was deciding these cases and yet in every single one of them before they adopted the statewide rule in 1944 it held unequivocally that the only possible basis on the basis of Board test for establishing such units that was the extent of organization and as recently as 1959 one of the Board members who constitutes the present majority of this Board member, Fanning. In the light of Virginia case who disagreed with its colleagues and that he wanted the statewide rule which had been established in 1944 set-aside. Mr. Fanning analyzed the basic criteria or standards of the Board to be applied in unit cases and he found in that case as recently as 1959 that a single district office couldn't conceivably fit within any of -- it couldn't qualify rather within any of the normal criteria of the Board and I think the asset test here is really what made a single district office inappropriate in the earlier and what factor has so changed as to make it appropriate today. Now the Board's entire argument rests on the assertion of two criteria. One is the criteria of the administrative entity which is inherently appropriate for collective bargaining. Now, a member, Fanning in 1959 took the Board's administrative division test which is a normal test which the Board has applied for many years and he said, the administrative structure as the Board has used that term in every case over the years until this case. The administrative structure is a grouping of a company's administrative operation which consists in turn of a group of many small units and where the effect of authority and control is vested in this administrative division like the territorial divisions in this case. Never has this Board defined administrative entity or administrative structure and it's a criterion which is used repeatedly over the years to apply to one of a group of small units within a larger unit. Arthur J. Goldberg: Well, Mr. Zorn you're going to tell us as I take that in the course of your argument as to what in your view accepting the Board to establish criterion would be the appropriate unit? Burton A. Zorn: I'll be glad to answer that question now Mr. Justice Goldberg -- Arthur J. Goldberg: Do you think that every time that is -- Burton A. Zorn: Our -- our problem here of course is not that problem. Our problem here is to determine whether the union violates or whether the Board has violated Section 9 (c) (5). We have contended before the Board that in our view, in the insurance industry, the three possible appropriate units by reasons of the very peculiar nature of this industry which is totally different in its operations than any other would be the statewide unit which is justified not on the extent of organization but on the Board's own decisions by reason of the fact that every insurance company including this company is very strictly regulated on a state by state basis, its agents are licensed on a state by state basis and in earlier cases years ago before the Board adopted the statewide rule as such. It did find state units appropriate on the basis of state regulation more than that. Arthur J. Goldberg: But state -- but state regulation has nothing to do with industrial relations in this area, does it? Burton A. Zorn: Well, if the Board had adopted a criterion of the method of regulation of an industry it might have been a fair criterion, I don't know but beyond that Mr. Justice Goldberg I think another criteria in which it might well apply to the state unit and applies in this case is that there has been both in this industry and there has been in this company successful history of collective bargaining on a state by state basis and history of bargaining as you well know of course is a factor of some importance. So I say a approximate extent of organization, a statewide unit might be appropriate. Obviously, a territorial wide unit conforming to the real supervision and control because what has been said here about the extent of authority of a manager is minuscule already it is. If you look at this record you'll see there's nothing to it. That, a territorial unit I think would be appropriate and obviously a companywide unit is appropriate and the two major competitors of this company do bargain on a companywide basis. William J. Brennan, Jr.: What is the territorial unit that in the Metropolitan situation would deem appropriate? Burton A. Zorn: It would -- that the territory of unit which would apply in this particular case in New England would be the territory which includes all of the states in New England. William J. Brennan, Jr.: How many officers? Burton A. Zorn: I -- without looking at the record I can't tell you how many officers, but as a matter of fact Your Honor this Board didn't have to meet the company's contention in this case because in all the other -- in many of the other cases it was applying a Metropolitan area concept based on this geographic appearance theory and all of the officers in Rhode Island were located within the Metropolitan Providence area. Now, had they -- now, it's conceivable, Justice Goldberg, that on the appropriate record a Metropolitan grouping of district offices could be found to be appropriate because at least there the Board has and we're now talking about established and settled criteria on which the Board rest its case here because there the Board over the years has grouped in a retail industry has grouped a series of stores on a Metropolitan basis on the theory of economic integration on the community and so on that might be an inappropriate. Might be, I'm not saying it would but those are the kind of units that might be appropriate. Arthur J. Goldberg: Now supposed (Inaudible)? Burton A. Zorn: It never has until this started with the Quaker City case in 1961, I think December 1961. This case is a 1962 case. Late in December of 1962 or September of 1962, the Board then proceeded to apply to reverse its policies in the retail food chain industry and then to Sav-on-Drugs case held, they didn't used the term separate administrative entity which is essentially a verbalism could cover anything. They said there in effect that they wanted to change their policy to make it easier for store employees to organize and therefore, they held for the first time that a single retail store was appropriate but that came after a series of these cases. And very recently they've gone a step further and carved contrary to their own rules in the recent -- the department store case, Allied Stores case contrary to the set of rule that a store or department storewide unit except for possible prepped carvings, the department storewide unit could now be separated into selling, none selling and restaurant with the same union petitioning for three separate unit. So, the Board has been moving in change of policy very rapidly in this overall area. I'd like to get back for a moment, if I may, just to some of the facts here which I think are sufficiently startling that I think they will convince this Court that regardless of what the Board has said here. It was not applying its criteria consistently nor was it applying an established or settled criteria because in this case as I've pointed out the seven other officers were excluded. This case, however, happened to be the fifth in the series of Metropolitan cases. The first involved Cleveland. In Cleveland the Board said, that is the Board majority because there were two member dissents running through all of these cases and the dissents were based on proposition that in the view of the expert two Board members the Board was following the extent of organization -- that extent of organization was controlling. But in Cleveland adopting first this so called administrative entity inherently appropriate doctrine which is never used before and which equally could've -- we applied to divide a department store not into three divisions but in a several hundred separate departments. The Board said “First, this is a separate administrative entity; second, because of cogent geographically reasons we will include all because the union asked for it, we will include the officers in the city and the officers in the suburbs in one unit even though there the distance was 18 miles.” The next case was the Wilmington case where they combined the two in the Metropolitan area of Wilmington on the same theory and rejected the company's request for the inclusion of the Dover office 46 miles away. Mr. Friedman says the Board never would've included it even if the union had requested it. There's no evidence in this record that it would not have. The third was the Sioux City case. Let me say a word about detached offices, in Sioux City, detached offices were in two different states, North Dakota and South Dakota, the district office was in Sioux City Island. In that case the Board included all of them. Now, a detached office on the reasoning of the Board that the manager of a district office is the immediate supervisory authority over the employees, that applies equally to a detached office case because with this distances apart it is the assistant manager who is the immediate supervisory authority and the record discloses that this virtually know, alright, the most only some occasional contact between the district office and the detached office and far more contract -- contact as a matter of fact from the super intent of agency and his assistance than there ever is, with the manager. In any event the fifth of them was this case, but then we came to Chicago and that I think as I said is the most revealing of all. Here, the Board on this geographic coherence test has adopted what the regional director in Chicago thought was a test that you want to follow. The union petitions only for the offices in the city within the political city limits of Chicago. The regional director following what he thinks the Board has said includes not only the offices in the City of Chicago but the suburban offices. There were 33 of them in the city and 14 in the suburb. But “No” says the Board when a case comes before it. We are going to exclude all of the suburban offices and we're going to exclude them for the following reason. That upon the physical location of the individual offices as the yardstick in determining the appropriate geographic appropriateness of the unit when in fact six of the city office had territories extending in those suburbs, three of the suburban offices had territories extending into the city and there was no more than a distance of six blocks between one city office and one suburban office. So, the Metropolitan union cons -- Metropolitan area concept goes out of the window and what this concept are physical yardstick can possibly mean I leave to Your Honors' imagination. Following that without going in anymore detail that's all covered in our brief, I want to say that in 22 of the other cases in which the Board has -- has held appropriately a single district office in at least ten of them the distance between the office certified and the nearest office was less than five miles, in some cases only one or two miles. Now, I need to spend very little time and I don't know how much time I do have left on the question of the statute itself. The purpose of the statute is plain, it was intended to reverse a practice which the Board had engaged in, in this industry and other industries of forming units based on the extent of organization. Now, whether you argue that it sole or controlling I think our brief covers that sufficiently and I think for purposes of this case it makes very little difference because our position here is that the test which the Board claims to have set up first with respect to this that single administrative entity are not valid test nor are they test which the Board has ever applied before and never in any situation applied before and when it comes to the application of those test and the geographic coherence test I think you'd arrive at one simple conclusion that you can't possibly explain this irrationality and inconsistency of decision except on the basic ground of the one factor which is common and constant through all of these cases and that is the factor of the extent to which the Union has organized at that particular time. Yes, Justice Black? Hugo L. Black: You came up to the factor to the last minute and you only discussed it in about a minute. What do you understand the statute does require? I'm not talking about its history, the language of the statute. Burton A. Zorn: I understand the statute -- Hugo L. Black: To say? Burton A. Zorn: To say that in determining any unit, the Board shall not give, I'm paraphrasing Your Honor, but I think this is appropriate, shall not give the union's extent organization or the extent to which the employees have been organized controlling weight in any unit determinations. Hugo L. Black: Suppose it gives it some weight then what is the standard (Voice Overlap) like to be? I'm having trouble with your argument in the part of the Government's argument is that it seems to me the statute did not intend for the Board try to set up permanent definition to determine the very broad power -- under the very broad power given decide in each separate case, that's direct in it, in each case on a case by case basis under what policy? Burton A. Zorn: It is 95, yes -- Hugo L. Black: -- decide in each case in all of it this is not this -- the supreme criterion which they have to follow in order to assure its employees the fullest freedom in exercising rights guaranteed by the Act. Isn't that the supreme test? Burton A. Zorn: No, the supreme test on this case, if I may disagree -- Hugo L. Black: I'm talking about isn't that the supreme test that Congress set out so far as the Board's power within -- Burton A. Zorn: The effectuation of self organization, yes. Hugo L. Black: To assure to employees the fullest freedom in exercising their rights, all the rights guaranteed by the Act? Burton A. Zorn: That is correct, Mr. Justice Black. Hugo L. Black: In effect to the employee? Burton A. Zorn: That's correct sir. Hugo L. Black: Well, how can they make a definite decision and say that we always going to consider this is it without regard to -- to anything else? This has to be in it, how can they do that and comply with -- with that, with these? Burton A. Zorn: Well, but that general purpose was limited by the enactment of 9 (c) (5) to stop the Board from doing (Voice Overlap) -- Hugo L. Black: What 9 (c) (5) says in determining whether the union is appropriate for the purposes specified the extent to which the employees have organized shall not be controlling. Burton A. Zorn: That's clear, I think. Hugo L. Black: That's right? Burton A. Zorn: That's clearly right. Hugo L. Black: But does that say it shall not be given any weight? Burton A. Zorn: No, I have not made that argument. Hugo L. Black: It must be given weight then after all how you ever going to get one -- any one case, I have listen to you carefully because I -- I might not have at all hear later in this case. But it looks to me that you have been arguing that if they have held in one city it's got to be citywide as the rule. If they held it's got to be statewide, that's the rule. Why is it not perfectly in line with what the Congress has told?Instead all of the circumstances of each case do not in any instant go only on the basis that the unit, the extent to which the employers have organized don't go on that, don't go on that anytime but go only with basis of all of the facts and all of the circumstances and you have attempted up to date, I have -- I haven't heard any argument shows. Burton A. Zorn: I'm sorry I've failed but may I summarize it to answer your question? Hugo L. Black: Yes. I've -- I've been bothered a little by the Government's side because it seems to me like that it was taking the position. If the Board has power despite the fact that they are commended to decide according to circumstances in each case to establish criteria in which those bind them all of the time, I'm bothered by that argument. Burton A. Zorn: May I try? Hugo L. Black: Yes. Burton A. Zorn: We have not said that the extent of organization is entitled to no weight whatsoever. It's entitled to some weight but it cannot be the basis or the controlling factor in the decision, this is what the statute said. Now, how do we arrive at the question as to whether the statute was right? Hugo L. Black: You say as I understand if you permit? Burton A. Zorn: Yes sir. Hugo L. Black: You said that the Board didn't say that and they never would say that (Voice Overlap) I agree with you for that. You say that I have estab -- I have proof here that that's exactly what they've done and that's what your issue finally comes down to. Burton A. Zorn: And the proof consists of two separate bases. Hugo L. Black: It has to be solely on that? Burton A. Zorn: But the proof consists of two pieces and we meet the Government ahead on. The proof is that the Board is -- the Board must in defending this choice he limited to the grounds, get itself involved. This is a settled doctrine in this Court (Voice Overlap) so we say -- Hugo L. Black: Why should it? Burton A. Zorn: This is what this Court has decided many times, Your Honor, unless they want to change, its fine. (Voice Overlap) the basis on which an administrative agency (Voice Overlap) -- Hugo L. Black: In another case? Burton A. Zorn: -- makes the decision shall be tested on the basis of the reasons asserted by the agency. Now, if I'm wrong about that, I'm wrong about a certain city but I just like to say these two things. We say that judicial review to determine whether or not extent of organization has in fact and in truth and the controlling factor in this decision and the other decisions is supported by two basic propositions. First, that the criteria or the standards of principles announced by the Board are inconsistent with standards which they have announced over the past and second, that when you get a formula of geographic coherence and it is applied with such inconsistency that it makes utterly no sense then you must look behind that to find out what the Board has done, that's my position in and of itself. Hugo L. Black: Now, what bothers me about is maybe it's altogether wrong that I was looking to it, when you say the Board having established the criteria is that to stay right within it but what bothers me about that is it is very much like this broad power that's given to them, it' is very much like the power of a jury to decide in some nebulous and it is nebulous, broad standards like what's good for the person or what was negative. Bringing in your imaginary people and you are saying as I understand that they've got to have stand that would be using every case. Burton A. Zorn: Well, I -- I don't say, don't misunderstand me (Voice Overlap) -- Hugo L. Black: -- the Board has the power, I doubt if the Board has the power either. Burton A. Zorn: I don't say sir that the Board has no authority ever to change a policy of a rule but I do say that with the existence of Section 9 (c) (5) if it when it does that, that that change of policy should be carefully scrutinized to determine what its purpose was and I say further that in this case, the Board has found what it has said in this case and that is that mistakenly or otherwise. It thought it was applying its normal criteria which in fact it was. Hugo L. Black: I fully understand your argument (Voice Overlap) if it's shown -- Burton A. Zorn: Yes sir. Hugo L. Black: It if shown that they did you had controlling consideration under this which you said there should not have violated the law and we should say so. The problem is that you add to that when you make the argument on that pages, consideration is heard and that you want to limit them considerations they've given in this case to considerations they've given in other cases. Burton A. Zorn: You can disregard my comment entirely, Mr. Justice Black, and I think you would come out with the same result because all you need to do is look at the visible results of what the Board has done in these cases to arrive at your own conclusion of what it did. Thank you, sir. Byron R. White: Mr. Zorn I supposed that (Voice Overlap) and if your position is that if you did have a case, two cases, which had absolutely similar circumstances other than the extent of organization that the Board couldn't come out with different results with the two -- in the two circumstances which means -- let's assume that there were two district offices in the north end of Rhode Island and two district offices in the south end. Both offices were organized in the south end and only one of the offices in the north end and as far and both of them were 12 miles away from each other and all of the factors you would think would indicate to be the same result in both of them except that -- but the Board comes out with different results and if it answers you correctly, all the other factors were equal but the extent of organization was not. Now, we're permitted to give some weight, some weight. In this case it happens to be controlling way. You would say that, you would say that the -- in that circumstance you couldn't give even any weight to the extent of organization. Burton A. Zorn: No, I would not. Byron R. White: Well then, you would say that Board could come out with different results in those positions? Burton A. Zorn: I would -- I would answer you two ways, I would say first of all, you would first have to determine because you see I haven't made this argument here because I think it's unnecessary. But you could make the argument based on this Court's decisions in many administrative cases that what -- when the Board acts inconsistently and irrationally in certain cases it may be guilty of such arbitrary conduct that even with this broad discussion and apart from Section 9 (c) (5) this Court could reverse. I haven't made that argument simply because I think it's unnecessary but I think it applies here. But in your case, I think you got to look at the facts of the group of cases because how else under this statute could you ever possibly show what the Board has done? Byron R. White: Well, the trouble is that the Board where there's great mistake, but in other cases or not does not deal -- it has not dealt with the case as a single office that it's concluded to single office and it's an appropriate unit and that -- and apparently it intends to hold that and whatever you might say about the other cases what about this one? Burton A. Zorn: Well, I'd say -- Byron R. White: How about this one what if it says that -- Burton A. Zorn: Yes. Byron R. White: -- and it says I think these are -- this is an appropriate unit. Burton A. Zorn: No, but I say further that there was in this case a request by the company for inclusion of the other seven offices in Metropolitan Providence and I say that since that was rejected you can't decide this case alone on whether this administrative entity inherent theory is a proper test or not. You've got to decide also whether the Board was -- Byron R. White: That the citywide base -- that the statewide basis isn't good? Burton A. Zorn: Whether the Board was consistent and rejecting offices in the Metropolitan area of Providence much closer to get than offices was taken by in another city. I mean you cant -- it's -- it's on both grounds. Hugo L. Black: (Inaudible) but it doesn't seems to -- Congress doesn't seems to authorize the Board to consider this case on the basis of what's best for the company but only on issuing an order which assures the employees to call this freedom. Am I right in thinking is it only (Voice Overlap) -- Burton A. Zorn: You're entirely right Mr. Justice Black in thinking that (Voice Overlap) -- Hugo L. Black: It's rather on unusual. Burton A. Zorn: -- of the organization of employees is one of the basic policies they had but that we don't argue. Hugo L. Black: But as far as the assurance to the employees not to the company? Burton A. Zorn: Well, the Act is not -- but the Board has frequently over the years following the statutory purpose, when it has found a company request to be proper and the union request to be improper granted a company (Voice Overlap). Hugo L. Black: Well, I think this is (Voice Overlap) -- Burton A. Zorn: It should be -- it's that's their way to apply, they should apply it seems to me. Hugo L. Black: But it can in any basis. I have been asking this, are you (Voice Overlap) -- Burton A. Zorn: Of course it can and that has to be -- Hugo L. Black: But it can base it on what's for them is convenient to the company rather than what's best to assure their employees for them not to strike? Burton A. Zorn: It's not really -- not really a matter of convenience Mr. Justice Black. What the Board has done repeatedly over the years is to weigh the two positions of the parties of the employer and the union and this has gone back since the beginning of the Board and still goes on today and determine which of the things best fits within the test which the Board has established. Hugo L. Black: But the test of the statute is, the only test what's best for the employees in aiding them to organize. Burton A. Zorn: Not quite because on test statute -- Hugo L. Black: What I'm trying to get to say and what Voice Overlap). Burton A. Zorn: The test of the statute is a further test and that is what will best effectuate collective bargaining. Hugo L. Black: Well what if it say, where does it make the test with reference to this, maybe it does, I'm not (Voice Overlap) -- Burton A. Zorn: It does, Your Honor. Hugo L. Black: Does that make it -- Burton A. Zorn: That is quite another factor and what the Congress was interested when this Act was passed was in not merely in giving employees freedom of organization and collective bargaining but it was also interested in preserving industrial piece in eliminating industrial strike. Hugo L. Black: I agree to that but I'm talking about with reference to this particular provision which is especially written. What -- what does the Board have a right to consider except what revealed the employees the fullest freedom in exercising their right? Burton A. Zorn: What do you mean? Hugo L. Black: I'm not talking about the general purpose of the Act, I'm -- by familiarity with it is why I was surprise to find that it is written this way when on -- when we inspect. Burton A. Zorn: Well, it does have in it when I thought it had obviously and that is that the assurance of full freedom is also coupled with the fact that these rights a full freedom are granted for the purposes of collective bargaining. Hugo L. Black: Okay. Burton A. Zorn: And the Board in every case makes a finding that whatever unit it decides is appropriate for collective bargaining and my only thought on your question is simply this, that the Board has a right and a duty. Not only to consider desires of employees which is precisely what Congress outlaw in 1947 that it also has a duty to consider which unit aside from the desires of the employees is a unit that will effectuate successful collective bargaining and that is the other branch of its obligation. Hugo L. Black: You read section, the section this way? Burton A. Zorn: I not only read the section this way but I read -- in over the years I have made many -- many of the decisions and that's what the Court has said. Hugo L. Black: All with reference to this section? Burton A. Zorn: Yes. Well, the general section with respect to, the Board as the court has never passed on Section 9 (c) (5) the Board has never met it ahead on. I'm talking about the general Section 9 with respect to the discretion of the Board in finding units appropriate. Arthur J. Goldberg: The Board doesn't criticize the evidence (Inaudible) are going to determine. You say that under 9 (b) well, in connection with this five questions in order to define it clearly and the way you did and that prior to 9 (c) (5) the Board in order to use the employees the fullest freedom the next (Inaudible) said that that organization affected that full freedom and we therefore have to extend more organization doctrine. Burton A. Zorn: Right. Arthur J. Goldberg: And that's carried on to purposes that they have set. Many times these cases involves (Inaudible) that provides them, it says that, this different employees would argue shall be not controlling but rather than the medications come up, rather inquires that. Isn't what you are saying is that the purpose of the Board effected the said area shows that the Board is making seriously room from the full view of this different organization is controlling them and (Inaudible) cannot leave these cases without allowing to do the Labor Board have said the Board has acted to perpetuate as the controlling doctrine instead of organization? Burton A. Zorn: You -- you put that so much better than I did and that was the basis of the decision below as well. Thank you.

John Paul Stevens: The Court will hear argument in Number 01-1437, Branch against Smith, and the cross-appeal of Smith against Branch. Mr. McDuff, you may proceed. Robert B. McDuff: Justice Stevens, may it please the Court: For 40 years, ever since the decision in Baker versus Carr, State court judges, like Federal judges, have played a role in addressing constitutional problems stemming from malapportionment. This was reflected in Scott versus Germano in 1965, and again in Growe versus Emison in 1993 when the Court said not only that State judges play a role, but they are preferred to Federal judges as agents of reapportionment. In this congressional redistricting case from Mississippi, the Chancery Court of Hinds County, acting with the blessing of the Mississippi Supreme Court, stepped into the breach and adopted a plan when the legislature defaulted. That plan has been enjoined by the Federal district court, and the United States Department of Justice has said not once, but twice that it was postponing the statutory time period for preclearance under section 5 of the Voting Rights Act so that even now, nearly 1 year after the plan was adopted and submitted, no preclearance decision has been made. A Federal court order is in place telling State courts they may not hear congressional redistricting cases. Sandra Day O'Connor: Now, did... did Mississippi appeal from the injunction? Robert B. McDuff: They did not, Your Honor, but we did. And we were allowed to intervene in this case to defend the State court judgment, which my clients had a right to seek, and which they did secure redistricting the State of Mississippi. Antonin Scalia: But... but the issue is whether the State was still pursuing the... the redistricting that was the subject of the application to the Attorney General, and whether it was doing so or not depended upon whether the State was appealing from the Federal injunction. If the State accepted the Federal injunction, it no longer was pursuing the... the reapportionment. Robert B. McDuff: I don't... I don't know... I respectfully disagree, Justice Scalia. This is a State court order, and the Attorney General of Mississippi has no right to refuse it or not, and he certainly has no right to undo it. Antonin Scalia: Well, and he also has no right to ignore a Federal injunction-- Robert B. McDuff: That's correct. Antonin Scalia: --unless he... unless he appeals it. He has every right to appeal it. He represents the State, and he chose not to appeal it. Robert B. McDuff: That's correct, but... but unlike the situation... but we... I guess my first answer is, we did appeal it, and so the injunction is-- Antonin Scalia: But you're not the State. Robert B. McDuff: --is subject to being overruled. Antonin Scalia: The problem with that is that you're not the State. Robert B. McDuff: That's correct. But unlike a situation where, for example, an injunction is issued against a criminal law, or regulatory provision that the Attorney General, or the State defendants have some discretionary authority to enforce, and where it makes sense that if they do not want to appeal, no one else should be allowed to appeal if they're not... if they don't care enough about enforcement, this is an order that the Attorney General, and the State defendants are required to obey, assuming Federal obstacles are eliminated. Now, if the Attorney General doesn't appeal for whatever reason, it makes sense to allow the people who secured the judgment in State court to intervene and defend that. Otherwise-- David H. Souter: Why does it make sense under a statute in which the action of the State is by... by definition crucial? Robert B. McDuff: --Because the action of the... the action of the State here is the action of the State courts, and they have issued an injunction. The Attorney General cannot undo that. Ruth Bader Ginsburg: But if we're talking about section 5, the language of section 5 is whenever a State shall enact or seek to administer any voting qualification, et cetera. And because the State is not currently seeking to administer anything, enact, I take it means legislation. Seek to administer could be the executive, but the executive, since it's not appealing the injunction, isn't currently seeking to administer anything. Robert B. McDuff: I think... I think the executive is seeking to administer it just as much as he was back when the plan was first submitted. If the Federal obstacles are removed... the constitutional injunction, and the preclearance obstacle... the State defendants are going to abide by the order of the chancery court, and submit this plan-- Antonin Scalia: But we would... we would not require the... the State or the... the Federal courts to do a vain... or the Attorney... the Federal Attorney General to perform a vain act. What use would it be for him to approve the reapportionment when the State Attorney General is still subject to a Federal court injunction which he has not appealed and therefore cannot ignore? What possible good would it be for the Attorney General to... to approve the... the apportionment? Robert B. McDuff: --To remove the section 5 obstacle as quickly as possible, consistent with the 60-day deadline in the statute, so that once the constitutional obstacle is removed, the plan can be in force. Antonin Scalia: But the constitutional obstacle won't be removed as long as the Attorney General doesn't... doesn't appeal the Federal court injunction. Robert B. McDuff: Well, that... that is assuming that... that my clients don't have standing, and I think we clearly do as parties who secured the State court judgment. Otherwise, you would be in a situation where the Attorney General could unilaterally nullify the State court injunction simply by not defending it. That's one reason my clients were allowed in this case, was to defend the State court injunction they secured. John Paul Stevens: Mr. McDuff, can I ask you what is the status of the State court litigation? Is there an appeal pending there? Robert B. McDuff: There is an appeal pending filed by the State court intervenors challenging the chancery court's plan. John Paul Stevens: And how do you explain the failure of the Mississippi Supreme Court to rule on that appeal? Robert B. McDuff: That... the briefs have been filed. No oral argument is scheduled. I think... I... I don't know, but I think the Mississippi Supreme Court is waiting to hear from this Court what it should do because it is looking at a Federal court order telling it it has no business in congressional redistricting. And the... the-- Antonin Scalia: Well, excuse me. Is our decision going to affect that Federal court order? Robert B. McDuff: --I'm sorry? Antonin Scalia: Is our decision going to affect that Federal court order? Robert B. McDuff: Well, we... we are certainly asking this Court to... to vacate the Federal court order. And-- Stephen G. Breyer: It's a... that's the problem I have trying to figure this out. Suppose... suppose we looked at the preclearance, and suppose I thought that it hasn't been precleared and it should have been. And the reason it hasn't been precleared is the reason that's been discussed, that... that they haven't tried to administer it yet and when... and they... and the Department has 60 days from the time that the State tries to administer it. I mean, I thought that's what the statute says, doesn't it, that they have-- Robert B. McDuff: --It says 60 days after it's submitted, it's-- Stephen G. Breyer: --Yes, enacts or seeks to administer. Robert B. McDuff: --That is correct. Stephen G. Breyer: They have to enact, and this doesn't sound like an enactment. It sounds like something... seek to administer, and they haven't sought to administer it. All right. So then we'd send it back. Then the Department would have to decide whether to preclear it. Well, they may well preclear it. Or what happens next? That's where I'm a little confused. I mean, it... the... the real constitutional issue here... or one of them anyway... is assuming there is the preclearance, then has the Mississippi court acted unconstitutionally in assuming authority to issue a plan, whereas previously, the Mississippi court had said you lack... we lack that authority. And all of a sudden, we have an order here which seems to overrule in earlier cases, and it doesn't even have an opinion. In other words, can you help clarify what we should say in this case on the assumption that we ended up thinking it should be precleared? Robert B. McDuff: I think... I think there are two things we want you to say. First is that the Federal court's constitutional basis for the injunction is wrong, and that Mississippi courts, like courts... like courts throughout the country, do have a right to adjudicate congressional redistricting cases, at least where the legislature defaults. And then, second, we are asking you to rule that as a result of the passage of the 60-day period, the plan has been precleared. If you agree with us on the first issue, disagree on the second, then the... then the matter will be remanded to the district court and the preclearance process-- Ruth Bader Ginsburg: But Mr. McDuff, the-- Robert B. McDuff: --will go forward in the Justice Department. Ruth Bader Ginsburg: --Mr. McDuff, on your first point, which you would like us to decide first, I thought the district court expressly made that a contingent ruling. Didn't it say if we're wrong on that this plan hasn't been precleared, if we're wrong, then we have this alternate constitutional point. They phrased it that way as if to say, we would like the court to understand that our principle ruling is that this plan hasn't been precleared. Robert B. McDuff: That's correct. Ruth Bader Ginsburg: But if we're reversed on that, then we have something else we want the court to know about. So, it seems to me that it was a highly conditional ruling, the kind of ruling, let's say, that a... that a trial court would make under rule 50, when it conditionally rules on a new trial motion. Robert B. McDuff: I don't know if it was a conditional ruling, Justice Ginsburg. It was an alternative ruling, and we are appealing both grounds. And I think it makes perfect sense to deal with them both in one appeal rather than-- Antonin Scalia: Why? It makes perfect sense to reach the constitutional issue when there's no need to do so? I mean, if... if we agree... if... if we disagree with you on the second point, there's no need for us to... to rule on... on the first point. Speaker: Is there? Robert B. McDuff: --Well-- Antonin Scalia: By the same token-- --Whether... whether or not the... the Federal district court used it as a makeweight, there's just no need for us to reach it. John Paul Stevens: Well, there are two questions I had. First of all, was it proper for the district court to decide a constitutional issue which was totally unnecessary to support its judgment? Robert B. McDuff: --The... I... I think it was, and I do think it is necessary to reach that issue because otherwise, we're going to go... if... however you rule on the section 5 issue, the case goes back down. Hopefully the plan is either declared precleared by this Court or later precleared by the Attorney General. The... the district court is simply going to reinstate that constitutional ruling. This case will come back up here on appeal, and we'll be into the 2004 election cycle. Stephen G. Breyer: All right. That's... that's true, but look, there's a case, Wise v. Lipscomb-- Robert B. McDuff: Yes, sir. Stephen G. Breyer: --which you've seen, and in that case, this Court says, in those circumstances... which are these... until clearance has been obtained, a court should not address the constitutionality of the new measure. So, we said specifically, don't address it. Now, what... what are we supposed to do about that? Robert B. McDuff: That... that's correct, Your Honor, but the cases from which that statement emanates, and the only cases in which this Court has been called upon to apply that principle are Connor versus Waller, and United States versus Board of Supervisors of Warren County, which we discuss at the beginning of our reply brief. But those are cases that are very different from this one. In those cases, the Federal district courts substituted constitutional analysis for the preclearance process and... and ordered the use of un-precleared plans. Here the Federal district court enjoined the use of a... an allegedly un-precleared plan and gave an alternative ruling the same way courts do... the... in the same fashion that courts do all the time. And in these circumstances, I think it makes sense to go ahead and deal with both issues on the appeal so we don't have this case bouncing up and down the appellate ladder while, number one, the Mississippi Supreme Court is trying to figure out what to do, and number two, we've got a March 1, 2004 deadline approaching. Stephen G. Breyer: Is there any chance the legislature... which is its job, I take it... will, in fact, enact a plan during that period of time? Robert B. McDuff: I... there's certainly no indication that the legislature will, Your Honor. And... and that's why it is important for... as... as the Court said in Growe v. Emison, for State courts to be able to step into the breach, and deal with the problem without the sort of obstacles that the Federal court has imposed here, first on the constitutional grounds, and then second, on the section 2 grounds because we contend the plan has been precleared. And let me respond to one other thing-- John Paul Stevens: So I... I take it-- Robert B. McDuff: --I'm sorry. John Paul Stevens: --the State court would have to make the same constitutional determination, or the State court isn't free from making constitutional determinations. Robert B. McDuff: That... that's right. The-- John Paul Stevens: In fact, just the opposite. It has to. Robert B. McDuff: --That's right. But if this Court resolves the issue on the... in... in reviewing the Federal district court's injunction, then the State court will not be in the position of having to do that. And the... the... I want to go back to the question of seeks to administer because I think it is very clear that the Mississippi court... the Mississippi courts adopted a plan to be used in elections as long as the section 5 obstacle is used... is removed, and any other Federal constitutional obstacles are removed. And as... as the opinion says... Justice O'Connor said in the opinion for the Court in Lopez versus Monterey County... the second Lopez decision... seeks to administer is simply... it... it's not necessarily a term of discretion. You can either seek to administer or not, but is a... it is a... the seek is a temporal phrase showing that the... the plan should be submitted prior to its administration. And here, the Attorney General doesn't have any discretionary authority, and I think it would be contrary to section 5 if he were able to undo the chancery court's order simply by the fact that he didn't appeal this case when he knew we were appealing. The... in fact, there's... we've referred frequently to the North Carolina preclearance of the plan adopted there by a State court regarding legislative districts. And if you look in the appendix to the NAACP amicus brief, there is the letter of submission sent by the trial judge in North Carolina to the Justice Department where he submitted the plan. The Attorney General didn't submit it. In fact, the Attorney General had opposed imposition of the State court plan during the State court proceedings. That plan was precleared, and it certainly seems to me that if the Justice Department can preclear a plan submitted by a State court judge, it cannot come here in this case, and say that a State court judge... a State court plan from a Mississippi judge is... has been withdrawn, or has been suspended simply by the simple act of... simply by the simple fact that the Attorney General did not take an appeal in this case. That was taken by us. David H. Souter: But that was... that was never an issue in... in the North Carolina case, was it? Robert B. McDuff: I'm sorry? David H. Souter: That was never an issue in the North Carolina case. Robert B. McDuff: Oh, no, there was not an issue, but I'm just pointing out that... I mean... I mean-- David H. Souter: Maybe... maybe Justice shouldn't have taken the... the request. Robert B. McDuff: --The... the... oh, I think Justice should... Justice definitely should consider a submission from a State court judge. Section... section 5 says-- David H. Souter: Sure. But you were making the argument a moment ago that if, in fact, they took the request from the State court judge in North Carolina, they can hardly object here. Robert B. McDuff: --That's correct. David H. Souter: And that's a different kind of argument. And... and since that was not an issue, I... I don't know that they are precluded, or would be precluded from changing their mind now. Robert B. McDuff: Oh, all I'm... all I'm saying, Justice Souter, is I don't think they can come in here and say that the fact that the Attorney General did not appeal here-- Antonin Scalia: No, that's... that's not what they're saying. Robert B. McDuff: --means that the submission was withdrawn or suspended. Antonin Scalia: They... what they did not... what they did not object to is the fact that it was not the Attorney General who had to submit the request here. That's all. Speaker: I mean, in... in the North Carolina case, they were not violating any-- Antonin Scalia: provision of the statute which required, before it could be precleared, that the State be about to administer it. The statute doesn't say that the person, or the... the entity of the State that is seeking to administer it must be the one who applies for clearance. That's not what the statute says. So, all that was at issue in North Carolina is whether the... the administering person has to be the one to seek clearance. And at most, the case stands for no answer to that question. It certainly doesn't answer the question of whether, when the State has no intention of administering it, which is the situation here, and was not the situation in North Carolina, the... the Attorney General, nonetheless, has to reply. Robert B. McDuff: Justice Scalia, I respectfully disagree with the premise that the State in Mississippi has no intention of administering this plan. Once the constitutional obstacle is removed, if it is, and once preclearance is declared, if it is, the State defendants are going to administer their plan... that plan. They are under a State court order to do so. And it seems to me to say that the Mississippi situation is somehow different from the North Carolina situation is to... is to exalt the form over the substance. Certainly in Mississippi the State court judge could have submitted that plan. The State court judge, I guess, could have intervened in the case, in the Federal case, and appealed if the Attorney General didn't. But that would be quite unusual, instead-- Antonin Scalia: Could he have administered the plan? That's-- Robert B. McDuff: --I'm sorry? Antonin Scalia: --That's the crucial question. Yes, he could do all that, but could he have administered the plan? If not, his intention to go forward is no indication that the State is... is seeking to administer the plan. Robert B. McDuff: But... but, Justice Scalia, the... the failure of the Attorney General to take an appeal is no indication that he will not administer the plan once the Federal obstacles are removed. I think we have to assume that he will obey the State court order. Stephen G. Breyer: But does it remove the Federal obstacle if... instead of passing on the hypothetical of whether the Federal ground, which is a alternative ground, et cetera is good or bad... if we just repeated the language from Wise versus Lipscomb, said it's premature to decide this constitutional issue, our cases say not to, but there's an alternative ground here? That would make it clear to everybody, wouldn't it, that the ground on which the Federal injunction rests is the preclearance ground? And then, would the State say, okay, if it's the preclearance ground, we're going to administer it. And then, the 60 days would begin to run, and then you're out from under this strange stalemate. Robert B. McDuff: The... the 60 days, in our view, Justice Breyer, has already run. Stephen G. Breyer: I know that, but if I don't agree with you about that, then would it satisfy what you're really after which is to get out of the stalemate? You see, we would just simply point out that this is an alternative ground and... and it has no real... we're not reaching it because it's... there's this other ground. In other words, I'm repeating what I've said. Robert B. McDuff: Then I... I think... I think-- Stephen G. Breyer: I'm trying to get you out of the stalemate. I'm trying-- Robert B. McDuff: --I... I think that gets us exactly nowhere because the Department has said it is not going to resume the preclearance process as long as the constitutional injunction is in place. So unless it's vacated, the preclearance process-- Stephen G. Breyer: --Are there two injunctions? I thought there was just one injunction and-- Robert B. McDuff: --I'm sorry. There's one injunction. Two grounds. Stephen G. Breyer: --two grounds. So if we suggest that one of the grounds was premature, then doesn't that do the trick? Robert B. McDuff: Well, I think it does... it does get the process ticking again. But the problem is at that point, once it is declared precleared, the Federal district court will impose its constitutional injunction, we'll be back up here. The Mississippi Supreme Court will still be facing that injunction. Stephen G. Breyer: Meanwhile, the legislature will act. Robert B. McDuff: Well, that's... that's wishful thinking. And it-- [Laughter] If it were true, we wouldn't be here I think. Ruth Bader Ginsburg: Is there any clue, by the way, why in all this time-- Robert B. McDuff: I'm sorry? Ruth Bader Ginsburg: --Is there any clue why, in all this time, the legislature has not acted? Robert B. McDuff: No. I think it was the difficulty of pairing two incumbents, and they couldn't agree. They couldn't agree on how to do it because we lost a seat in Mississippi. Let me make one-- David H. Souter: They... they won't have that problem now, will they? Robert B. McDuff: --No, they won't have that problem now. Speaker: So-- Robert B. McDuff: But I still think there's... there's been no indication thus far that any action is going to be taken in that respect. I reserve the remainder of my time for rebuttal. Speaker: --Mr. Feldman. James A. Feldman: Justice Stevens, and may it please the Court: It's our position that the State court redistricting plan was not precleared on either of the two occasions that appellants-- Speaker: Mr. Feldman, let's assume that we agree with everything you say in your brief, and we agree it's not been precleared. Isn't the... will the injunction that's now in place prevent further preclearance? One of the reasons for not preclearing before was there's this injunction standing-- James A. Feldman: --It's-- Speaker: --and that's still an obstacle, isn't it? James A. Feldman: --If it's clear that this injunction is... rests only on section 5 grounds, and not constitutional grounds, that certainly would-- Speaker: The only way to make that clear would be to vacate the-- James A. Feldman: --Well-- Speaker: --the other ground. Is that right? James A. Feldman: --The... what the injunction actually says is something like the injunction will last until, and unless there is a constitutional plan that's precleared. And insofar as it uses the word constitutional, and we know the views of the district court about that, I think that as long as that... that word, constitutional, is there, that... that that remains an obstacle to administering the plan. Speaker: So unless that injunction is vacated, we're at a stalemate. James A. Feldman: At least that part... at least the injunction has to be modified to remove the word constitutional. Antonin Scalia: Well, but that's... that's dictum. I mean, what the district court said about that is... is dictum. John Paul Stevens: No, it's part of the injunction itself. James A. Feldman: It isn't-- It-- Antonin Scalia: --It says until a constitutional plan is... is precleared, but what is a constitutional plan was not before the court. Now you may well know how the district court is going... going to rule on it, but you don't know that the district court will be affirmed in that ruling, or... I don't... I don't see how the... the constitutional ruling is embodied in the injunction. James A. Feldman: --If the Court made clear, I think, that... that the... that this injunction couldn't rest on the ground that Article I, section 4 of the Constitution was violated by the... by the State court plan, then I think it would be ripe for a preclearance. David H. Souter: Wouldn't... wouldn't it also be ripe... wouldn't the time run simply if... if the State moved to vacate the injunction? James A. Feldman: Yes. If a State moved to vacate the Federal court injunction? David H. Souter: Yes. James A. Feldman: In the-- David H. Souter: Because at that point wouldn't it have signified that it was, indeed, attempting to administer the plan? James A. Feldman: --There... well, there's really two grounds on which we think the injunction is... is relevant. There's a narrower ground, which I think it... primarily the... the argument so far has been concerned with, which is that the State was no longer seeking to enforce the plan because it didn't appeal it. And that-- David H. Souter: If it now seeks to vacate-- James A. Feldman: --if the State took action, they're still not appealing it, but I suppose, after this Court's order, if they went back to the district court, and said, in light of this Court's order, we're trying to seek to enforce it again, and if they had the ability to do that, then that... then that would be eliminated. David H. Souter: --Yes. James A. Feldman: There is a broader ground, however, because the... insofar as the injunction is a injunction that's based... rests on constitutional grounds, it's the Department's position that... that the preclearance... the section 5 uses the terms seek to... seek to administer. It says it may be enforced once the Attorney General acts, and it talks about voting changes that are in force and effect. And all of those things point to a contemplation by the statute of a change going to the Attorney General when it's ready to be... ready... ready to go into effect, when there's no present legal obstacle. As long as there's a present legal obstacle other than a section 5 injunction to its current administration, then the Attorney General... it's too early... it's too early to go to the Attorney General. David H. Souter: Okay. Then that goes back, I guess, to the earlier suggestion. If... if this Court indicated that, in fact, the alternative ground was prematurely raised, wouldn't that respond to the... to the second-- James A. Feldman: I think... as I said, I think it's clear that if the... if the Court made clear that this... this injunction rests on section 5 and doesn't rest on the proposition that it violates Article I, section 4 for the... for the plan to go into effect, then it would be ripe for a preclearance at that point. John Paul Stevens: --Of course, we have a doctrine that we don't decide constitutional issues unless we have to. Do you think that doctrine should have applied to the district court in this case because the section 5 ground, as I read the opinion, was... was self... was sufficient to sustain the objections? James A. Feldman: I think... I do think the section 5 ground was sufficient to sustain it. Speaker: And therefore it was really wrong for the district court to reach out and unnecessarily decide a constitutional question. James A. Feldman: I... you certainly... the... the only reason I would hesitate for that, before I'd quite go that far, is district court was faced... if you put yourself in the situation that the court was, with very tight deadlines... and there are... even... although courts should avoid deciding constitutional questions when possible, there may be some extreme circumstances where-- John Paul Stevens: But those deadlines... you've demonstrated in your brief that the... the clearance hadn't occurred. I mean, if... if we agree with your position on the preclearance, the deadlines were not a real obstacle. James A. Feldman: --I... I agree. And actually I... I do think the district court certainly could have said and... and perhaps should have said, this is a constitutional issue. Especially, it's a novel constitutional issue that raises novel questions that haven't been addressed before, and the section 5 ground was sufficient to sustain the injunction. Ruth Bader Ginsburg: But the district court... didn't... isn't that what the district court said when it said this is our alternative holding in the event that on appeal, it is determined that we erred in our February 19 ruling? It seems to me that that's a contingent ruling. If we're right about that it hasn't been precleared, then this doesn't come into play. James A. Feldman: I... I guess only insofar as when you read the actual order of the court, it says a... this... this shall go into... the State may not enforce the State court plan until the State... there's a constitutional plan that's precleared. And if you read that word-- Ruth Bader Ginsburg: But one... one could agree with the court, what it was intending to do and give effect to what it was intending to do, and if we should hold, if we should agree with the court, that there's no precleared plan, then it would be appropriate to vacate the decision to the extent that it rests on the constitutional ground. James A. Feldman: --I... I think that may... that may well be right. I... I don't disagree with that. I'd like to go to, actually the first... the first alleged preclearance which is supposed to have occurred 60 days after the plan was initially submitted to the district court, and that preclearance did not occur... was initially submitted to the Attorney General. Excuse me. That preclearance did not occur because on February 14th, before the 60-day period had expired, the Attorney General sent the State a letter saying, I need more information before I can preclear this plan. That procedure, under which the Attorney General did that, was specifically held valid by this Court in Georgia against the United States, and the Court in Georgia specifically held that that stopped the 60-day clock from running. Later, in Morris against Gressette, the Court held that the Attorney General's substantive determinations under section 5 are not subject to... are not subject to judicial review at all. And therefore, the Attorney General's determination that more information is needed, that the information before him was not sufficient to permit preclearance... to permit him to make the determinations he had to make... also is not subject to judicial review. And therefore, because that whole process was... was approved by the Court in Georgia against the United States, because more information was sought, that that terminated the 60-day clock then, and it did not... the plan was not precleared some days later when... when the 60-day period would have expired. I think for the reasons I said earlier, it also was not precleared at the later period both because the State didn't... on the narrower ground that the State did not appeal the injunction, and on the broader ground that the injunction was there. And the section 5 process is designed so that something that's ready to go... the Attorney General should reach his decision on an act that's ready to take effect. Finally, I'd like to just briefly go to the statutory question of the interaction of sections 2c and 2a(c). With respect to that question, it's our position that the district court, as a remedy here, correctly ordered the districting of Mississippi's congressional delegation, and did not order that they be elected at-large. And that was required by Federal law, specifically by 2 U.S.C., section 2c, which provides that there shall be established by law single-member districts in each State, and that Representatives shall be elected only from districts so established. That command, it seems to us, is unequivocal, and required the district court, when it was faced with the problem of what to do about Mississippi, to create single-member districts. It would... did not have the power-- Sandra Day O'Connor: But you could... you could view it, I guess, if you had to look at it at all... and I'm not sure we do... you could say that 2a(c) applies before a plan has been redistricted in the manner provided by State law, and that 2c applies afterwards. I mean, you could harmonize them. They've been in... in existence, these two provisions, for a very long time, and we normally don't see repealed by implication, or hold that there is such a thing-- James A. Feldman: --I-- Sandra Day O'Connor: --that you can harmonize them. James A. Feldman: --I think generally, but I do not think in general these can be harmonized, or at least within the scope of where it's possible for 2c to... to operate. For... one reason is that the language, Representatives shall be elected only from districts so established, is unequivocal, and, in fact, it shows that the earlier portion of 2c that says, there shall be established by law congressional districts in each State, has to mean established either by a court, or by a legislature, or by anyone who acts. Antonin Scalia: What if it meant just by a court? It would really put a lot of pressure on the legislatures to... to do what they're supposed to, and to enact these districts by law. It would take a lot of... a lot of these cases that... that place the burden upon the district judge to reapportion a whole State would go away. He'd say, if the legislature doesn't ask, all of you guys are going to run at large. Boy, that would... you know-- Speaker: [Laughter] Antonin Scalia: That would not happen. The legislature would, indeed, do the job it's supposed to. John Paul Stevens: Isn't that-- Antonin Scalia: --It... it would make a lot of sense to interpret it that way. John Paul Stevens: Isn't that Mississippi's own default rule? Doesn't Mississippi have that same statute? James A. Feldman: They do have the same statute, which we would view as pre-empted by section 2c. But that was the... the scheme that was in effect in... from 1941 to 1967. The reason why 2c was enacted, and the way to give 2c some effect is that Congress at that time was faced with a situation where there were at least six courts that had threatened to order at-large election of entire congressional delegations in the aftermath of Baker against Carr. And Congress responded to that. The concern specifically was that courts would order at-large elections, and the response was the enactment of section 2c. John Paul Stevens: Thank you, Mr. Feldman. Mr. Wallace. Michael B. Wallace: Justice Stevens, and may it please the Court: It seems that the Court is focusing on the question of preclearance here, and the real problem with the question of preclearance is that the Justice Department has stopped the preclearance process because of the injunction. Now, we believe that the Justice Department acted properly in so doing. They have a regulation that says, we will not consider premature submissions, and this Court said in Georgia that any reasonable regulation will be enforced. Their position is that whenever the State has been told it cannot administer a change, then it cannot be seeking to administer a change within the meaning of section 5, and therefore, this was premature. So they stopped. Now, the question is what can be done about that, and I think, in all probability, the only thing that can be done about that is for the Attorney General of Mississippi to go down the street to the district court and ask them to preclear the change under section 5 because there does not seem to be any other mechanism whereby anybody can force the Justice Department to get moving on a section 5 preclearance. John Paul Stevens: But, Mr. Wallace, don't you agree that with the injunction outstanding, the Justice Department would have the same reason for refusing to preclear that it's already given? Michael B. Wallace: I think not, Your Honor, and I think that's because of the very strange system of divided jurisdiction that Congress consciously created back in 1965 when it said, we will let the District of Columbia deal with statutory questions. We will let the court back home deal with constitutional questions. That's been in the act from day one, and it's given this Court trouble from day one. Ruth Bader Ginsburg: How long does it take if you take the... if you said derail the preclearance procedure before the Attorney General, switch to the D.C. District Court track? How long do those proceedings... section 5 proceedings... in the district court ordinarily take? Michael B. Wallace: I've never been in one, Your Honor. I don't know that I could tell you, but I would think it would take close to a year anyway. Now-- Stephen G. Breyer: Well, then why can't we just do what we'd... I'd suggested anyway... I think others did too... that... that you... you... we'd simply say, look, here's an injunction. It rests on two grounds. Ground one, this plan hasn't been precleared, the Mississippi plan, the court plan. Ground two, it's unconstitutional. You'd say ground two is, A, premature, doesn't really support the issue, it's an injunction... because it's premature, et cetera. And now you'd have a decision that, I guess, from a legal point of view insofar as we were right about that, would just rest on the ground that it hasn't been precleared. And since that's the only reason for issuing the injunction, then the Department, if the State of Mississippi wants to put the plan in effect, would preclear it. If the State doesn't want to put it in effect, well, that's their business. But... but if they are going to put it in effect, then the Department would have to get busy. Michael B. Wallace: --As a practical matter, Justice Breyer, that might get the process moving, because I think I've understood the United States to indicate that they would get moving if that's what the Court did. But under the usual rules of this Court's jurisdiction, it sits to review judgments and not opinions. And the judgment is that... that the... that the district court plan shall stay into effect... shall stay in effect until preclearance of a constitutional plan takes effect. That's true-- Antonin Scalia: Yes, but in affirming that, we certainly can say why we're affirming it. And... and if we say, yes, the injunction is valid for one reason, and one reason only, we do not reach the other... the other reason, and there is no basis for reaching the other reason. Certainly we can say that. Michael B. Wallace: --And if... and if the Court does say that, and if the Justice Department does get moving as a result of that opinion, then that will move the process along. Stephen G. Breyer: So we're in an unusual... I mean, this is unusual because I guess we would be reviewing a reason for the judgment. It's unusual because there's a legislature that doesn't want to reapportion. And the third aspect in which it's unusual is that the Supreme Court of Mississippi, according to some of the parties, has overturned previous cases of that court which said the chancery court lacks the power to enter the plan, and it did it without writing an opinion. It's normal that a court writes an opinion. Now, is there any likelihood or chance that the Mississippi Supreme Court, before this issue comes back to us, if it does, would explain what the reason is for departing from what seems to be a long precedent? Michael B. Wallace: I suspect the Mississippi Supreme Court can take a hint as well as the Justice Department, Justice Breyer. There was no error in this injunction, and ordinarily, the Court would not edit opinions on valid judgments. But if the Court does that, then certainly the Justice Department may move. I think the Supreme Court of Mississippi may move. We moved for a stay at the Supreme Court of Mississippi. That stay was denied. The briefing is finished. There has been no stay order. I presume they will set the case for oral argument in due course. But if they get an opinion from this Court that says, we'd certainly like to know what you have to say, I think I can say with confidence that they will set the case with... for... for argument in due course. So as... as Justice Breyer says, it is a strange case. We think it is a case in which the judgment is absolutely correct, and the... and what the Justice Department has done is absolutely correct under its regulations. John Paul Stevens: But would you say it's absolutely correct if the constitutional reasoning were wrong, and if they say we won't approve a... a Mississippi plan that is in violation of our constitutional holding? Michael B. Wallace: The... as... as Justice Ginsburg has observed, I think that is an alternative ground in the opinion. I do not think that it affects... infects the judgment, but it makes a problem, as Mr. McDuff has noted, because even if there is section 5 preclearance down the road, this district court would enjoin it again. John Paul Stevens: Is it your view that the section 5 ground of decision is sufficient to... to uphold the... the injunction below? Michael B. Wallace: We believe that it is sufficient to uphold the judgment below because there is no error in the judgment, and there is no error-- John Paul Stevens: But if... if that's true, did not the district court violate our rule against deciding constitutional issues unnecessarily? Michael B. Wallace: --I think they did not, although it's a close call. In Ashwander-- John Paul Stevens: Why is it a close call if... if the judgment is clearly correct on the section 5 ground? Michael B. Wallace: --The... the district court-- John Paul Stevens: It seems to me it's only a close call if you think there's doubt about the section 5 ground. Michael B. Wallace: --And that's why the district court set the alternative judgments. I think they thought they were making it easier for this Court. Ashwander doesn't say never decide a constitutional question. John Paul Stevens: It doesn't... says you don't do it if it's not necessary, and it clearly was not necessary if they're right on the section 5 ground, which everybody seems to agree they were. Michael B. Wallace: We certainly agree that they were, and if they're... and if-- Antonin Scalia: The other side doesn't agree they were. Would... would you bet your life that they're... that they're right about that? Speaker: [Laughter] Michael B. Wallace: --I would be... let me turn to that, if I may, Justice Scalia, because we believe that they are... that the Justice Department and the district court were correct on the section 5 ground. And that goes back to the February 14th letter for more information. As the Assistant Solicitor General has said, that's a standard application of Georgia versus United States. When you have... when you need more information to decide a section 5 issue, then the Justice Department is entitled to stop the clock and ask for more information, and the clock won't move again until they get more information. This is a... a straightforward application of a regulation that this Court has already approved. The district court so found, believed that the request for more information was absolutely valid, and therefore said, there has been no approval, there is no plan in place, and for that reason, we must put in a plan of our own. Ruth Bader Ginsburg: Mr. Wallace, there is something unusual about that request for information. It seems to have been triggered by the district court. I'm looking at page 100a of the appendix to the jurisdictional statement where the district court is commenting on this opinion, this opaque opinion, of the Mississippi Supreme Court that says the chancery court has authority, and then says... this is the end of the first paragraph on the page... that at the very least, the Attorney General of the United States will consider the implications very carefully and might perhaps request more information. I'm not aware of the... of district courts telling the Attorney General how the preclearance process should run. Is this standard operating procedure? Michael B. Wallace: By no means is it standard, Justice Ginsburg. But what the district court was doing in this case was deciding whether or not there would be enough time for the preclearance to be completed before the qualifying date. The intervenors were suggesting we did not need a Federal trial, we should wait for the Justice Department to finish its work. The Justice Department already had before it a complicated submission from the... from the Attorney General of Mississippi, which begins on page 228... 221a of the appendix to the jurisdictional statement, and that presented not only the... not only the congressional redistricting plan itself, but also the decision of the Supreme Court of Mississippi to overrule 70 years of precedent and allow trial courts to do redistricting. So those two issues were already before the Justice Department when the district court wrote. But all the district court wrote... said is, we think we better get busy and try this case because this looks like a real hard submission to us, and we're not sure that they're going to be able to decide this case before our qualifying date. So it's unusual, but it's certainly well within the... the scope of what the district court was being asked to do. And I think they properly pointed out problems. And... and with the help of the district court... the help, indeed, of the submission that Attorney General Moore had already made, I think the Justice Department properly saw that there were questions that needed to be asked. They asked those questions, and that stopped the 60 days from running. Stephen G. Breyer: We also have to reach your issue, don't we? Even if we agree with you on that, we still have to reach the cross-appeal issue, don't we? Michael B. Wallace: I... I think you do. Stephen G. Breyer: Or do we? Michael B. Wallace: I think you do because in... because once it is conceded that the... the district court had to impose a remedy in 2002, then the question arises of what that remedy should be. And it was our position in the district court, and it is our position here that the district court should have enforced the law of the State of Mississippi, as Justice Stevens has observed, says that you must have at-large elections, and an act of Congress dating back to 1941 that says you must have at-large elections in these circumstances. That's section 2a(c)(5) of Title II. We ask for that to be enforced, and that's an issue that I think must be reached in this case regardless. I think the United States has the only argument for not enforcing the 1941 act. They claim that it is absolutely incontrovertibly inconsistent on its face. For the reasons that Justice O'Connor has stated, we think it is not inconsistent on its face. We also point back-- Antonin Scalia: No court has ever done it before-- Michael B. Wallace: --No court-- Antonin Scalia: --in all of the years that courts have been operating under this act. Michael B. Wallace: --This Court did it under almost identical statutes 70 years ago in Smiley and Carroll and Koenig. Antonin Scalia: 2c didn't exist then. Michael B. Wallace: There was a 1911 act that said basically the same thing. The 1911 act says you shall elect Representatives by districts, but at the same time it says, but if districts have not be redistricted, then any new Representatives will be elected at large. And that's-- Stephen G. Breyer: To get your... to get your result, you have to read, there shall be established by State law a number of districts, et cetera. And... and, in fact, it's pretty hard to read it that way, for me it seems, because this thing, there shall be established by law a number of districts, i.e., not at-large, was enacted by Congress in response to courts that had threatened... courts, not legislatures... that had threatened at-large elections. And so they were quite unhappy about that in Congress, and they passed this law saying there shall be established by law a number districts. It seems to me their object was certainly court districting, wasn't it, as well as legislative districting? Michael B. Wallace: --As difficult as it is to read the mind of Congress, Justice Breyer, I think that while they were clearly unhappy, they were unable to agree in any detail on what ought to be done. And even on section 2c, there was... there were people who stood up in both houses of Congress and suggested that this law would not be enforced in States... in court proceedings, that it was being... that it was addressing itself to legislatures. Antonin Scalia: It was repeating the 1911 law that you just mentioned? Michael B. Wallace: There it-- Antonin Scalia: Why... why did they... why did they pass it if it didn't do anything but... but say what the... what the 1911 law already said? Michael B. Wallace: --I think it's... I think it is difficult to know why they passed it, there being no reports-- Antonin Scalia: Well, you've got to give me some plausible reason. I mean-- --Legislative history helps, by the way. Speaker: [Laughter] Antonin Scalia: I gather the legislative history you've just told us is, as usual, on both sides of this thing. Is that right? Speaker: [Laughter] Michael B. Wallace: --We believe it is, Your Honor. As... as was noted in the Hanson decision in the D.C. Circuit, I think there was gamesmanship on both sides in both houses. Gamesmanship is a word that comes from the Hanson case. Ruth Bader Ginsburg: But, Mr. Wallace, one thing isn't, I think, debatable and that is since 2c is on the books, no court has ever resorted to whatever... was 2a, whatever. Since 2c is there, that's the one that the courts have used, is that not so? Michael B. Wallace: It is... I don't know that they have enforced 2c. I think most of them have believed that they were acting under this Court's oversight which tells courts always to read... always to do single-member districts when they can. But it's certainly true, Justice Ginsburg, no court since 1967 has ordered at-large elections in... in redistricting cases. But we believe what... if you look at the rules of construction, and at what Congress actually did, without trying to speculate on what they were trying to do, they enacted language that had been before this Court in 1911 and was... and was construed in 1932 to allow at-large elections. Antonin Scalia: I assume-- David H. Souter: --Except-- Antonin Scalia: --Go on. David H. Souter: No. Except for one fact, and that is now we have a districting statute which... which is the later one in time. The... the districting command and the at-large command are no longer of... of even weight. The districting command is later in time and therefore, to the extent that there's any conflict, that's got to get some precedence. Michael B. Wallace: That would... and that is a difference in 1911 because those two parts of the act were enacted at the same time. David H. Souter: Yes, yes. Michael B. Wallace: But if they could be construed consistently in 1911, then I think they can be construed consistently in 2002. And if they can be construed consistently, it doesn't matter which one was enacted first. Antonin Scalia: Except that there would be no possible reason for reenacting it if they're... if they're going to be construed consistently, just as they were when they were both enacted simultaneously. Michael B. Wallace: The... the difficulty of figuring out what Congress thought it was doing on this single piece of legislation tacked onto a private immigration bill is very difficult, Justice Scalia. I recognize it. But as we noted in our brief, which did discuss the legislative history, they had thought about this for 2 years and specifically considered repealing the 1941 act, and they didn't do it. They came back and did something else. And we think under standard rules of... of construction, that means the 1941 act-- John Paul Stevens: Mr. Wallace, do you agree with the... with Mr. Feldman that in any event the Mississippi statute is out of the picture because that's pre-empted no matter which way we go on this issue? Michael B. Wallace: --I think it would be hard to argue that Congress impliedly repealed a 1941 act and didn't intend to pre-empt a State law that said the same thing. I've tried to come up with that argument, Justice Stevens, but I don't think I can make it. [Laughter] So-- Antonin Scalia: What do you... what do you answer to the... the fear that one has to have that redistricting by having all the elections at large is precisely what those who were interested in diluting minority vote would like? Michael B. Wallace: --Well, first of all, Your Honor, the... the answer that I have is that an act of Congress is not subject to the Voting Rights Act, and would be enforced on its face. But the other answer I have is this. We have a long history over the last 20 and 30 years in Mississippi of coming up with remedies which will protect the rights of minority voters. The most common remedy since Gingles is to do single-member districts, but it's not the only remedy. And there are remedies where you can elect people at large and because of the way the election is held, all people running together, not requiring majority votes, not having... not having anti-single-shot requirements, those have worked in Mississippi. Minorities have been elected in white jurisdictions in multi-member races by using those sorts of procedures. Congress didn't tell us what sort of procedure to use in an at-large election, and in Young v. Fordice, this Court made clear that whatever procedures you use would have to be precleared. I don't think the legislature will act for all of the reasons we've seen, but the district court would certainly use those remedies. They've used them before. Minorities will be protected. John Paul Stevens: Mr. Wallace, can I go back to the constitutional issue that the district court decided in this case? Your... your adversaries say that you do not defend the reasoning employed by the district court, even though you defend their judgment. Do you think that's a fair comment on your position? Michael B. Wallace: I think I defend the reasoning of the district court as far as it went. I draw a distinction between this case and Growe that they... they simply said that in Growe, the Supreme Court did not consider this issue, which is true, and therefore we look at the chancery court. It's not the legislature. It can't act. There is a distinction... another distinction between Growe and this case, which... which the district court did not dwell on and we dwell on in our briefs. In Growe, there was a Federal claim before the district court... before the State court. And under the Supremacy Clause, ordinarily a State court must litigate Federal claims, and this Court recognized their authority to do so in Growe. Here, for whatever reason, the plaintiffs in the... in the chancery court who are intervenors in this Court did not assert a Federal claim. They made it quite plain, we are proceeding only under State law. We do not want to proceed under Federal law, and that under U.S. v. Term Limits simply doesn't exist. There is no Federal... there is no State law claim for congressional redistricting. So that's the difference between Growe and this case, and this is... that's the grounds on which we defend it. John Paul Stevens: You mean there is no State law requiring redistricting at all? Michael B. Wallace: There is... there is no State law... first of all, there is no State law requiring redistricting. There are statutes that talk about how the legislature proceeds, but there is no substantive law that says redistricting shall take place. John Paul Stevens: So as a matter of State law, the Mississippi legislature is under no duty to... to redistrict? Michael B. Wallace: It is under no duty to redistrict, and could be under no duty to redistrict because the redistricting requirement comes only from the United States Constitution. The authority to redistrict comes from the Elections Clause, and the State of Mississippi cannot impose on their legislators any requirement having to do with congressional redistricting. A decision was made by the Framers over 200 years ago that legislators are the people to regulate congressional elections, and if they fail to do it in their job of representing the people, then Congress will do it in its job of representing the people. Stephen G. Breyer: Why can't a State just say we require our legislature under State law to conform to the Federal requirements by having a plan by January 15th by going to the chancery court if you don't have a plan, et cetera? Michael B. Wallace: Because at that point, Your Honor, it... it... the... perhaps the legislature could do that. Stephen G. Breyer: And if the State of Mississippi says, well, that in effect is what they did, don't we have to take their word for it? Michael B. Wallace: No, I don't think you do, Your Honor. First of all, perhaps they could delegate authority. If the legislature said this problem is too hard for us, we want to delegate it to State courts, then that... that issue would be tested like any other delegation. Stephen G. Breyer: In a State court, and here we have an unexplained judgment without an opinion of the Mississippi Supreme Court which seems to say that's what it is. It doesn't say, but that's the holding of it. Michael B. Wallace: But it... but when you are dealing with Federal constitutional guarantees and provisions, you do not always take the State courts as... as gospel even on State law. The district court here said there is no delegation, and as Your Honor knows, there was no explanation of why the writ of prohibition was denied. It really doesn't set much of a precedent for anything, but the district court, which is familiar with Mississippi law, says there is no delegation in this case. We have looked at Mississippi law, and nothing has been delegated. So the question of whether a legislature could delegate power to the courts is not here. What we have before us is a case where the legislature has not delegated power to the courts. It has simply done nothing and when it does nothing, the States in that circumstance are powerless to act if we go back to the acts of Congress, and we think we enforce the at-large statute from 1941 as the district court should have done. If there are no questions, I thank the Court. John Paul Stevens: Thank you, Mr. Wallace. Mr. McDuff, you have 5 minutes left. Robert B. McDuff: Thank you, Your Honor. Justice Breyer, the State of Mississippi does want to put the plan into effect. That was the order of the Mississippi Supreme Court, however brief it was, saying the chancery court's plan will remain in effect until... unless superseded by a timely plan of the State legislature. The Attorney General submitted the plan for preclearance under order by the chancery court. He has done... he has not withdrawn the preclearance submission. Speaker: The statutory language is not... is not whether it's in effect or not. It's whether he's seeking to administer it. That's the problem. Robert B. McDuff: And... and there's nothing about the absence of the appeal here, particularly where we are taking the appeal, that suggests he's not seeking to administer it, Justice Scalia. And let me mention one other thing along those lines. The language is enact or seek to administer. Now, the lesson of Growe v. Emison, at least we think, is that a State court stands in the shoes of the legislature when the legislature defaults on redistricting, and certainly if the legislature had enacted this plan, and the... it had been enjoined by the Federal court for whatever reasons, and the Attorney General had not taken an appeal, but legislative leaders had or intervenors had, I don't think we would say that the preclearance submission was thereby withdrawn. It seems to me the State court is in no different position, and we shouldn't say that the Attorney General's failure to appeal here would withdraw the submission where it wouldn't in the legislative context. The... and... and the plan has been precleared in our view, if not the... by the first 60 days, certainly by the time of the second 60 days, where the Justice Department said, we're not going to continue to review this plan because of the constitutional injunction. Well, there's no language in section 5 that stops the 60-day period from running on that ground. That... it is a statute that admits of no exceptions. There is no regulation that allow... by which the Justice Department says, we will not continue to... to consider a... a plan that has been enjoined on constitutional grounds. And in fact, the Solicitor General has not even said in his brief that that is the regular practice of the Department. Here there are compelling reasons why it is important for the 60-day period to be removed even if there's a constitutional injunction. Often these cases are decided under severe time constraints. If a constitutional injunction is imposed, State officials may try to remove it as quickly as possible and restore the plan in time for the election. If the section 5 obstacle is delayed in the meantime, the... it... it, in effect, prolongs itself by feeding off the constitutional injunction, and even if the constitutional injunction is vacated, the State still has to deal with this now-postponed section 5 obstacle that will not be removed in some situations in time for the election. Let me say one other thing about the constitutional ruling, the fact that it was an alternative ground. We think there is doubt about the section 5 ground, as we've suggested here, and particularly given the importance of resolving these cases so that elections can go forward without continued Federal court interference, I think it is crucial for this Court to rule on the constitutional ground, as well as the preclearance ground here. The rule of Connor, and the rule of the Warren County case are not jurisdictional rules. They're supervisory rules imposed by this Court to ensure the orderly processing of the section 5 issue when it's... when it's in a case in which other issues are involved. Here the orderly processing of this litigation, and the creation of the situation where Mississippi can conduct its elections in 2004 without continued confusion of the type that we had at the last election, that interest favors resolving the constitutional issue now, at the same time the section 5 issue is resolved. And so for all of these reasons and the reasons set forth in our brief, we respectfully urge that the Court vacate the injunction of the district court on all grounds. John Paul Stevens: Thank you, Mr. McDuff. The case is submitted.

Warren E. Burger: Mr. Biebel, you may proceed whenever you are ready. Paul P. Biebel, Jr.: Thank you very much, Your Honor. Mr. Chief Justice, and may it please the Court: This case was originally argued before this Court on October 13, 1982, and the question of the applicability of the Aguilar-Spinelli standard to this case where an anonymous letter was involved. However, on November 29, 1982, this case was restored to the calendar for reargument to consider the additional question: whether the exclusionary rule as enunciated in Mapp and Weeks should to any extent be modified so, for example, not to require the exclusion of evidence obtained in the reasonable belief that the search and seizure was consistent with the Fourth Amendment. We are back before the Court today to consider this additional important issue. Before I started my argument I would simply like to indicate that our argument in a nut shell is this: Determinations of probable cause are practical, factual judgments of probability. It is the function of the magistrate or the judge to make decisions prior to a search. Because of the factual nature of this determination, because of the respect for the magistrate's function in this regard, and because of society's interest in avoiding the exclusionary rule's harsh costs, these determinations should be given great deference on motions to suppress. Evidence should not be excluded if any reasonable person could have concluded that there was probable cause on the basis of the totality of the circumstances and judged by the practical and factual considerations of everyday life. In short, if there's a reasonable basis for the finding of probable cause the exclusionary rules should not apply. Any analysis of the exclusionary rule, we believe, must consider the context in which the exclusionary rule was born. Around the turn of the century there was a great concern about flagrant and egregious police misconduct. In cases like Weeks in 1914 and Silverthorne Lumber Company in 1920, you had situations where persons were arrested and while they were in custody the police went to their homes or went to their businesses and searched without probable cause of any sort and without warrants. And obtained through their appropriated papers and effects evidence that was used against them. In Rochin versus California in 1952, this Court's conscience was shocked when the police took Mr. Rochin to the hospital and had his stomach pumped in order to obtain the morphine capsules which he had swallowed after the police had forced their way into his house without a warrant. And, finally, in Mapp versus Ohio in 1961 which reversed Wolf versus Colorado, of course, and applied the exclusionary rule to the states, you had a situation where the police attempted to enter Mrs. Mapp's house with her consent. Upon the advice of her attorney she refused that consent. The police a few hours later forced their way into the house, searched the entire premises and found four pamphlets and a few photographs, all allegedly pornographic. Each of these cases which ultimately led up to Weeks... lead up to Mapp, involved flagrant acts of police misconduct for which this Court indicated the exclusionary rule ought to apply. But the exclusionary rule which was meant to deter such serious misconduct by police has come to mean much more as it's been applied by trial courts and review in courts around this country. The new rule... the rule now applies to evidence... to exclude evidence at trial no matter what the error, large or small, committed by police and by magistrates. Now, if the primary intent of the exclusionary rule is meant to deter police misconduct... and this Court has said that on may occasions starting with Elkins in 1960... then the world simply does not work in a situation as here where it's hard to see what the police did wrong. We argued in our initial briefs that we didn't believe the Aguilar-Spinelli two-prong test even if applicable to our case was violated because of the extensive corroboration of the letter and because of the determination of probable cause made by Judge Lewis when he issued the search warrant. But even if this Court were to find that the Aguilar-Spinelli test was violated, we would nevertheless contend that in this instance the exclusionary rule should not be applied because the anonymous letter coupled with ample corroboration amounted to probable cause under the definition as historically enunciated by this Court. William H. Rehnquist: Did you argue this before the Illinois Courts, Mr. Biebel? Paul P. Biebel, Jr.: What was argued before the Illinois Courts was the Aguilar-Spinelli standard, Your Honor. And we argued that in that instance the Aguilar-Spinelli standard was met. I-- Sandra Day O'Connor: And not the exclusionary rule question? Paul P. Biebel, Jr.: --The exclusionary rule is really here for the first time, Your Honor. It was not mentioned in oral argument the first time before this Court. We were focusing in on Aguilar-Spinelli but in a sense we were focusing in an indirect fashion on the consideration of probable cause. What we are doing in our approach today is looking at that probable cause aspect of this case in a closer way. Lewis F. Powell, Jr.: In general while you are talking about what happened to Lowe, the brief of your opponent suggests that the Constitution of Illinois has an exclusionary rule and that this case was decided on the basis of it. That might come first, logically. Paul P. Biebel, Jr.: Your Honor, there is no doubt that the Supreme Court of Illinois established the exclusionary rule in 1923 in People versus Brocamp. Thurgood Marshall: That was even before Wolf in Colorado, wasn't it? Paul P. Biebel, Jr.: Yes, it was after Weeks, before Wolf. Thurgood Marshall: And certainly long before Mapp? Paul P. Biebel, Jr.: Long before Mapp, Your Honor. That's correct. But, this Court has defined that rule in People versus Demorrow in 1974 to follow the standards enunciated by the Supreme Court of the United States. The analysis that was made in this case, as a matter of fact, in the Aguilar-Spinelli issue, took into consideration the federal guidelines that took place. So, Illinois does track the Federal Fourth Amendement law with regard to the exclusionary rule and follow... has followed it closely. We believe that that is consistent with whatever the Court would do today. There's no doubt that the law of search and seizure has become complicated and confusing. And one of the more confusing areas involves the application of the Aguilar-Spinelli standard. Professor Lafate has 140 pages in his treatise on hearsay evidence with regard to this problem. Because it was confusing we have cases like People versus Bell where a district court held that the affidavit with regard to an eyewitness identification didn't support the credibility and reliability of that eyewitness in case... and consequently that evidence was suppressed. The Fifth Circuit said that's simply wrong, that Aguilar-Spinelli ought to be limited to informant situations. In our case, too, we have an obvious confusion with regard to Aguilar-Spinelli because both the police and the judge felt that the letter could be utilized in order to determine whether probable cause exists or not. To hold in this case that the exclusionary rule applies where the police made a diligent and a reasonable effort to fulfill their responsibilities is in effect to place form over substance. The essence and the analysis of whether the search warrant should issue is whether or not there's probable cause. All three Illinois Courts considering this issue talked in terms of probable cause but they analyzed it in light of the two-pronged Aguilar-Spinelli test which we discussed the last time we were before this Court. However, we suggest in this case that this Court ought to consider stating affirmatively that they're going to return to the unadorned probable cause standard which was enunciated in Carroll and in Brinegar. In Brinegar, this Court stated that when you're dealing with probable cause you're dealing with probabilities. These are not technical considerations. They are factual and practical concerns of everyday life in which reasonable and prudent men, and not legal technicians, act. Put in another light, this concept of probable cause merely requires an objectively reasonable assessment that it's more probable than not that the search warrant covered evidence of the crime. This basic probable cause standard is a realization that police and magistrates deal in factual contexts in which they simply don't have all the answers, but nevertheless may be required to act if they believe there's probable cause. Mr. Justice White put it well in his dissent in Stone versus Powell where he said, making arrests in circumstances in which the police officer feels he has probable cause is precisely what the community expects of him. Neither police officers nor judges issuing warrants need delay until unquestioned proof is accumulated. The officer may be shirking his duty if he does so. That same philosophy has been reiterated in Draper where this Court said the police would be derelict in their duty if they didn't follow up on leads. Harry A. Blackmun: That's the first time you mentioned Draper. All your remarks up to this point have been Aguilar and Spinelli. Have you unhooked from Draper? Paul P. Biebel, Jr.: No, we haven't unhooked from Draper at all. We certainly discussed Draper at length the last time, Your Honor. And we feel that the Draper analysis, which is consistent with the Carroll-Brinegar analysis which takes into consideration the totality of the circumstances, really what we're talking about today you've got to look at the whole picture. We think that Draper amply supports our position in this case as to the analysis to be used. John Paul Stevens: Do you contend, Mr. Biebel, that you can look at any circumstances after the warrant issued? Paul P. Biebel, Jr.: We believe the probable cause determination is made by the circumstances which were given to the magistrate, or in our instance, the judge at the time he considers whether or not to issue a warrant. John Paul Stevens: So, then, in this case the fact that the car came back to Chicago after the warrant was issued was not relevant. Paul P. Biebel, Jr.: There was a presumption that the car was on its way back to Chicago. John Paul Stevens: Well, but, you didn't know it till it got back to Chicago-- Paul P. Biebel, Jr.: Didn't know it-- John Paul Stevens: --Yeah. Paul P. Biebel, Jr.: --But, in view of the fact and circumstances-- John Paul Stevens: All you knew was that it left Florida, actually. Paul P. Biebel, Jr.: --That's right. And, due to the facts and circumstances you had at the time, we believed that there was enough evidence to indicate. John Paul Stevens: So, whatever information the police obtained after the warrant was issued you do not ask us to consider, that's all I'm asking. Paul P. Biebel, Jr.: That's right. We believe that probable cause is established on the basis of what they knew when the judge issued the search warrant. Since probable cause means only a probability and not unquestioned proof, and, since many situations which confront police officers are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men acting on facts which lead sensibly to conclusions of probability as this Court mentioned in Brinegar-- Sandra Day O'Connor: But, whose mistake are we looking at here, the magistrate's or the police? Paul P. Biebel, Jr.: --Within the... within the standard that we are talking about here, it could be argued and the Supreme Court said that the magistrate perhaps in applying the Aguilar-Spinelli two-prong test made a mistake in this conclusion of probable cause. We would contend that-- Sandra Day O'Connor: And do you contend that the Court, if it reaches the question here of the good faith exception, should focus in on some good faith exception of the magistrate? Paul P. Biebel, Jr.: --We're saying that our position is somewhat different than the solicitor's in this regard. And what we're saying is that within the context of cases like this that we're talking about which are basically factual cases. The solicitors is talking in a broader scope which, of course, his role as amicus would do. We're saying within the factual circumstances that we have here, we think that the analysis ought to be back to a totality of the circumstances analysis. And the review of that should be a reasonable basis review. William H. Rehnquist: Well, if... if that's your position I'm surprised that you answered Justice Steven's question the way you did. If you're talking about totality of the circumstances, reasonable basis, I would think that a far less sweeping change then you're urging would simply be to say that the police may consider, after developing facts, that when... between the time of the issuance of the warrant and the search or seizure that might not have been available to the magistrate. Paul P. Biebel, Jr.: I think... I think your point is well taken. I think the law as it stands now would seem to indicate that the facts and circumstances have to be that which leads up to the issuance of the warrant but certainly if you look at the facts and circumstances in our case it would certainly indicate that a round trip... a non-stop trip from Florida occurred in those, you know, a great deal found in the car. So, facts and circumstances certainly would lend support to the finding of probable cause that Judge Lewis made in this case when he issued the search warrants. We're saying that even though there may have been a mistake, that that shouldn't make any difference in this case. If you take the case of People versus Hill which was cited by this Court in 1971 you had exactly that situation. The police went to Mr. Hill's apartment and they arrested a man that resembled Hill. He said his name was Miller. He showed identification. The police didn't believe him. He said he didn't know anything about weapons. There appeared to be a gun in the house. They arrested Miller who they thought was Hill, searched the apartment. It was prior to Schimel, and, consequently, was a proper search. And, they found evidence indicative of the guilt of Hill. This Court said that even though there had been a mistake as to who had been arrested there was nevertheless probable cause because the police reasonably believed that the man arrested was Hill. The Court cited Brinegar's standard, and, said that what we're looking at here is a factual and practical rather than a legal technical view... legally technical view, and, consequently, that mistake shouldn't make any difference in the finding of probable cause which is actually the determination of probabilities. Because this is a practical consideration, the issuance of a warrant is entitled to great deference as this Court has stated in cases such as Jones and Ventresca. And, consequently, since there is deference paid to the Court the review of the finding of probable cause is in effect a review of the finding of fact, and, therefore, should be reviewed on a reasonable basis standard rather than demobile review as you would have with questions of law. This, we would observe is the same basic standard that courts use in determining whether or not probable cause exists on appeal. As this Court-- Sandra Day O'Connor: Counsel, if the purpose of the exclusionary rule was, as you suggested earlier in your remarks, deterrence of improper police conduct, then how does application of a good faith exception to a magistrate's decision in issuing the warrant further the deterrence of the police? Paul P. Biebel, Jr.: --What we're basically saying, here, is that in these cases the deterrence, yes, but, comes in this way, if it may please the Court, that the police activity in this case was reasonable. It was thorough. It was done over a short period of time. That is basically the deterrence... I'm sorry, the good faith aspect of this case is basically what the solicitor is putting forward. What we're saying is in these types of cases that what we've got to look at is the factual context in which the probable cause finding is made, and if there's a reasonable basis for it. And many cases, I might add, involved this exact question on motions to suppress, was the evidence sufficient to show probable cause. What we're saying is that even though we're asking the Court to mutilate what it said before, we think the laws become confused in this area. And we think the Court ought to clearly establish what the role of probable cause is in search warrants, what the standard is, and what the role of... what the basis of review ought to be. If that's the case, then, a lot of these aberrant decisions which have come down in the search and seizure area I think would be changed if those considerations were made in light of the standard we're asking the Court to enunciate in this case. Getting back. The standard in criminal cases is not whether the reviewing Court feels that the defendant is proved guilty beyond a reasonable doubt, but, rather where there was substantial evidence to show that as this Court pointed out in Woodby versus the Immigration and Naturalization Service in 1966. And, in 1979, this was reiterated in Jackson versus Virginia. Mr. Justice Stewert issued the opinion in that case in somewhat different language where he said, the issue was whether any rational trier of fact could have determined guilt beyond a reasonable doubt. Using that basic philosophy of deference for the factfinder, we apply that to this case involving probable cause. This Court said, for example, in Jones versus United States in 1960 that the standard of review with regard to probable cause is whether there is a substantial basis to believe that the narcotics were probably present in the apartment. Now, by using the substantial or reasonable or rational basis the focus becomes not what the reviewing judge thought, but what a reasonable, a rational police officer or magistrate could have believed when he made the determination of probable cause. And if that determination is probable, it ought to be respected by the Court. Warren E. Burger: Haven't a number of cases added another factor, as seen by a policeman in light of his experience, not in the light of the judge's experience. Paul P. Biebel, Jr.: That's right, police officers are are on the streets. They obviously are professionals in what they do and that's different from what we all do. And, we think that what they've learned in experience in the street has a great deal to do with whether or not they believe there's probable cause which exists in these cases. John Paul Stevens: Well, what do you do with the Nathanson case in which the officer was confident that there was probable cause, but the magistrate disagreed... I mean the magistrate, based on what the officer's conclusions was enough. Would you... are you asking us to reexamine that case? Paul P. Biebel, Jr.: I don't think that Nathanson needs reexamination, Your Honor, because all it was was a conclusory statement of probable cause. There was not-- John Paul Stevens: By... by the police officer? Paul P. Biebel, Jr.: --By the police officer. There was nothing-- John Paul Stevens: And, to this day, we presumedly believe he had probable cause. Paul P. Biebel, Jr.: --That's right. We have much more than that here. We've got evidence, facts and all the supporting evidence to the light of which indicated-- John Paul Stevens: You're not contending, in other words, that the good faith of the police officer is enough? Paul P. Biebel, Jr.: --I don't think the subjective police officer's good faith is enough, that's correct. Michigan versus Tucker declared that the defendant is not entitled to a perfect trial. And, consequently, you can't require police officers to make no mistakes whatsoever. The pressures of law enforcement simply don't permit that kind of expectation. Importantly, I would point out that Michigan versus Tucker also talked about the deterrence rationale of the exclusionary rule and assumed the police acted in willful or at least negligent ways when the... when this rule is to apply. If there's good faith in the actions of the police officer in that case, that is the absence of any malice, then we would say the rule shouldn't apply. When this deterrent rationale we've talked about here is considered in conjunction with the reviewing standard that we've said that probable cause ought to have, we find that it's clear in this case that the motion to suppress should not have been granted in this case. First of all, there's no evidence whatsoever the police acted in a willful and negligent way which is the kind of action that the exclusionary rule was meant to deter. Sandra Day O'Connor: Was there any inquiry under that aspect in the Court below? Paul P. Biebel, Jr.: There wasn't any inquiry, Judge. I think that in reading the record that we see we can find that is a conclusion that can reasonably be drawn. Their actions in this case, I think, can only be characterized as thorough and professional. They had an anonymous letter which said that Mr. and Mrs. Gates were drug couriers. The letter was received on May 3, 1978, and it said that Mrs. Gates was leaving for Florida that very day. It said that Mr. Gates would be going a few days later. The police had a very difficult job to do, and that was to determine whether the letter had any validity at all. They didn't know, for example, whether anybody by the name of Gates lived in Bloomingdale, Illinois. And so they had to check with the secretary of state to find out if there was anybody by the name of Gates in Bloomingdale. They did. And, they found out that Lance Gates lived there, but on a different street than the letter said. They updated that information through a confidential informant who had financial information, who said that the Gates had moved and indeed lived on Greenway Terrace like the letter said. They checked with the Chicago police department who ascertained that a man by the name of Gates was leaving for Florida two days later on Eastern Airlines, just like the letter said. They checked with the phone company. The phone number the man had given in his reservation for the airline checked out as an unlisted number to Lance Gates on Greenway Drive in Bloomingdale. They then went to the drug enforcement administration and had an agent at the plane who had a description of Gates, and saw a man answering that description saying he was Gates get on the plane. They had an agent at the other end of the trip, waiting, observing Gates get off. He spent an hour in the airport and went to meet his wife. And went to a room where a woman was registered in his wife's name, which proved out was Susan Gates. They observed that he stayed in Florida for about ten or ten and a half hours. And there's no evidence he left the motel at all. And then drove back on the interstate to Chicago, presumably toward Chicago. The police went on the basis of that information which was all consistent with the letter. And all done over a day and a half or a two-day stretch and asked a judge to issue a warrant on the basis of probable cause. The judge said that he felt there was probable cause in this case and issued a warrant for both the car and for the house. This is clearly not the kind of activity the exclusionary rule is meant to deter. This was thorough professional police work over a day and a half or two-day period involving three police agencies, the Illinois Secretary of State, the phone company and a confidential informant. The the imposition of the exclusionary rule in this case for purely technical reasons would deter police officers, it seems to us, from doing their job. And, certainly deter police officers from going to get warrants because if the warrant is not going to be given the kind of respect that this Court said it should have from Jones and Ventresca, then the warrant process is really meaningless from the point of view of the police officer and under those circumstances he may resort to warrantless searches which, of course, we... this Court has frowned upon. We think that there is a problem with the probable cause standard. The courts have issued aberrant opinions in this regard. They have used artificial standards, Aguilar-Spinelli, whatever, they used artificial standards in this regard. We will say that the study of these aberrant opinions which we have cited in our reply brief are such to indicate there is confusion in this area. We would ask Your Honors to take this basic probable cause standard that you've talked about in years past and apply it in this situation and give due deference to the determination of probable cause made by the magistrate in this case. If there are no further questions, we respectfully would reserve whatever time we have left for rebuttal. Thank you very much. Warren E. Burger: Mr. Solicitor General. Rex E. Lee: Mr. Chief Justice and may it please the Court. This Court's question as stated in its order of November 29, is keyed to the officers' reasonable belief. As so stated the question has been answered by this Court's precedents which make it quite clear that the exclusionary rule necessarily applies only where, and, I'm quoting from Michigan versus Tucker, the police have engaged in willful or at the very least negligent conduct. It is elementary law that the willful and the negligent occupy different parts of the legal and behavorial universe from that which is reasonable. So that by very definition the question has been answered by this Court's decisions. The conduct of a law enforcement officer in Weeks and Mapp as Mr. Biebel has told us was flagrantly abusive. It was intentional. Because it was intentional it was susceptible of being deterred. The present case is at the opposite end of the spectrum from Weeks and Mapp. The police officers' conduct in this case was not flagrant. It was not intentional. It is the kind of conduct which even if technically violative of the Fourth Amendment involves only disagreements among judges over subtle and elusive issues of law. This is simply not the kind of case to which the exclusionary rule was intended to apply or which achieves its deterrence objectives. And under those circumstances this case is controlled by a firmly established principle, established by this Court in a consistent line of decisions reaching back for at least fourteen years which teaches that since the paramount and probably the sole purpose of the exclusionary rule is to deter unlawful police conduct, the rule applies only to those situations where its deterrence benefits outweigh the costs of suppressing highly probative evidence. This Court's precedents reject the notion that the exclusionary rule applies to any violation of the Fourth Amendment or that it must be applied whenever there is any possibility of deterrence however slight. The answer, the Court said in Stone versus Powell, is to be found by weighing the utility of the exclusionary rule against the costs of extending it. Now, let's apply that task. John Paul Stevens: Mr. Solicitor General, let me just ask one question. Your brief doesn't cite the Nathanson case. Rex E. Lee: No. John Paul Stevens: How do you put that into your scheme of things. Rex E. Lee: Under our scheme, once a warrant has been obtained, if the warrant had been issued in that case, then in all except the most unusual of circumstances, and we do hold open the possibility that there could be some unusual circumstance, that should be a virtual categorical reasonable kind of police type conduct, and therefore, one to which the reasonable belief modification would apply. Now, in the event that the warrant did not issue, not in that case, then you would have to judge it under the more rule of reason type approach to ask whether there was or was not a reasonable belief. John Paul Stevens: I must confess, I'm not clear. Do you say we should overrule the Nathanson case or follow it? Rex E. Lee: I think it should be followed in the circumstance. John Paul Stevens: Even though there was... I don't quite understand why. Rex E. Lee: Well, whether there... whether this-- John Paul Stevens: Because there was no misconduct, no negligence or willfulness there. Rex E. Lee: --No. In the event that the Court would conclude that the conduct of the police was reasonable, and I think it very likely that the conduct was reasonable in that case, then the modification should apply. John Paul Stevens: In other words we should overrule the case? Rex E. Lee: That is right. Not as rationale, but, it's... the actual holding of the case. John Paul Stevens: If the same facts arose again we should decide it differently. Rex E. Lee: That's right. William H. Rehnquist: What happened in Nathanson? Did the police officer go to a magistrate and the magistrate turned him down? Rex E. Lee: That's my recollection is that they did not get the warrant in that case. John Paul Stevens: Then they did get the warrant in the Nathanson case. They did get a warrant? Yes. Mr. Lee, what happens under your approach in this case to improper determinations, even flagrant ones, by the magistrate? Rex E. Lee: Let me address that question-- Sandra Day O'Connor: Determinations that are completely wrong and unsupportable. Now under your view, it would be perfectly all right for the police officer to take such a warrant and follow it. Rex E. Lee: --Not necessarily perfectly all right, Justice O'Connor. Let me make two comments in that respect. One is that the principal focus should be on the conduct of the police rather than on the conduct of the magistrate for two reasons. The first is that insofar as deterrence is concerned this Court's decisions have made it rather clear that it is the police officers with whose conduct we are to be concerned. On the assumption-- Sandra Day O'Connor: So there is a secondary interest in making sure the government itself isn't involved in wrongdoing. Rex E. Lee: --That is correct. That is correct. And for that reason as we set forth in our brief, we hold open the possibility that in some future case there could be conduct in which it... not only the conduct of the police, but also that of the magistrate might be taken into account in determining whether the totality of governmental conduct, both police and magistrates, might result in the modification which we urge not being applicable. But those would be unusual circumstances for this reason. On the assumption which underlies necessarily the exclusionary rule that there is a linkage between the deterrence of the police and the unavailability of the use of the evidence at the trial, there is at least a logical linkage because the police are part of, in one view, the overall law enforcement effort. The linkage is much more loose and indeed there is some question as to whether it even exists when you focus not on the law enforcement officer but rather on the magistrate. The magistrate's responsibility is not to convict. The magistrate's responsibility is... he is not part of the overall law enforcement process. Rather his responsibility improves the accommodation of both society's interests and also the individual's interests. And as a consequence, it simply is not true that the deterrence of the magistrate fits in the same category as does deterrence of the police. I'd like now to turn to the application of this Court's truth suppression balancing against deterrence of improper police conduct to the facts in this case. First of all on the cost side, Mr. and Mrs. Gates were indicted on the charge of possession of marijuana. Illinois has some evidence in its possession that is rather relevant to whether they are guilty. The Illinois police in executing the search warrant found 350 pounds of marijuana in the Gates' trunk and more incriminating evidence in their home. The only question is whether this highly relevant and probative evidence is to be kept from the jury. Surely judicial integrity suffers serious damage when facts known to the judge, the lawyers on both sides and to the defendant are withheld solely from the only participants in the courtroom who need it the most. On the deterrent side of the scale assuming arguendo that the drugs and other items were received in violations of the Fourth Amendment, it is difficult to perceive any adequate deterrent effect on future police misconduct from suppressing this evidence. The reason is that the police did in this case exactly what any reasonable police officers should do, what our society wants them to do and what this Court has said on many occasions that they should do wherever possible. They obtained a search warrant so that the probable cause judgment is made by one whose governmental obligation includes the protection of the constitutional rights of the individual. William H. Rehnquist: General Lee, are there any statistics showing by what percentage of times a magistrate turns down a request for a search warrant? Rex E. Lee: If there are, Justice Rehnquist, I'm not aware of them. Consider if you will, the course which the present law requires the policeman to steer when he is operating as he usually is within that indistinct Fourth Amendment boundary between the lawful and the unlawful. On the one hand we require him not to be too aggressive and very properly so lest individual Fourth Amendment rights not be violated. It is equally important however that he not be overly timid lest criminal activity go unpunished, undetected, or worst of all, unprevented. That kind of obligation to steer between the scylla of his law enforcement obligation and the charybdis of the Fourth Amendment is probably unavoidable. But what is not unavoidable is the consequence that we impose on him if by hindsight we discover that he has made even the slightest technical deviation from the perfect course. If we turn our backs on the evidence that he has obtained just because he has not been successful in forecasting judicial decisions, then that is not only freeing the criminal because the constable has blundered. That is freeing the criminal because the constable is something less than omniscient. Thurgood Marshall: Well, you can't just blame Mapp, you have to blame all of those Illinois cases. Rex E. Lee: And indeed-- Thurgood Marshall: That were decided before Mapp, don't you? Rex E. Lee: --And, indeed, Justice Marshall, it is not terribly profitable to place the blame. And indeed the nub of the solution to the problem is contained within this Court's decisions, at least a dozen of them, which have made it very clear that the proper approach in this instance is to take into account that kind of dilemma that the police officer faces. And ask whether, in fact, he is going to be deterred by excluding this evidence in this particular instance. And by definition, if we believe what this Court said in Michigan versus Tucker, and I submit it is absolutely correct, that it can only be to deter either negligent or willful conduct. Then by very definition, this Court's answer has to be given in our favor. Thurgood Marshall: General, how can you deter the policeman? What other method do you have? Rex E. Lee: Well, there are other methods of course, Justice Marshall. Thurgood Marshall: Can you name one that was ever used, ever? Rex E. Lee: There are of course the possibilities of tort remedies and many trials to be held, after the trial. And those kinds of issues would have to be taken into account if we were urging the abolition of the exclusionary rule itself. We are not. That issue is not before the court. It is simply... it is fairly a close question as to whether the exclusionary rule itself is justifiable. And that has excited debate both scholarly and judicial. But this case presents a much easier question. And it is in those instances where by very definition, being keyed as it is to reasonable belief, the deterrent effect varies somewhere between the non-existent and the very minimal, then the balancing test that this Court has set down in such cases as Calandra and Janis, Stone, and many others, operates to permit the evidence. John Paul Stevens: Mr. Solicitor General, you're talking entirely, as I understand your argument, about deterrence effect on the police. Is there any mechanism or do you think there should be to deter magistrates from violating the explicit words of the Fourth Amendment, no warrant shall issue expect on probable cause. What deterrent should be applied? Rex E. Lee: There are two deterrents. One is, of course, judicial review of the magistrate's decision. John Paul Stevens: Well, if you think the magistrate's decision is not supported by probable cause, should the judge then set aside the warrant. Rex E. Lee: In appropriate instances that would be one of the remedies. John Paul Stevens: But I thought your whole argument is that even though there is no probable cause here the warrant should stand. Rex E. Lee: That brings me to another question that I do want to discuss. And that is, in appropriate instances where the reasonable belief modification might be dispositive of the particular case, but nonetheless, the reviewing court might conclude that it is appropriate to review, to not go immediately to the reasonable belief modification issue but rather consider first the substantive Fourth Amendment issue, either the propriety of the warrant or the meaning of the Fourth Amendment in that context. John Paul Stevens: It's going a little too fast for me, Mr. Solicitor General. Whose reasonable belief are we talking about? Rex E. Lee: Let me answer that one. I think in the great majority of cases we are talking about the reasonable belief of the police. However-- John Paul Stevens: I am talking about this case. Rex E. Lee: --In this case we are talking about the reasonable belief of the police. I see no indication whatever that Judge Lewis acted improperly. We are not ruling out the possibility that it could be taken into account in some cases. We think that ought to be resolved on a case to case basis. John Paul Stevens: Well, assume for a moment... what is your position. Was there or was there not probable cause for the warrant? Rex E. Lee: In our view there was probable cause for the warrant. John Paul Stevens: Then how do we reach all these other issues? Rex E. Lee: If you reach that conclusion and you decide that you want to base your decision on that issue then of course, that can be done. But I had inferred from the fact that the case was set down for reargument, that there was a purpose in in searching out this additional issue. And, this issue, of course, also can be a basis for deciding the case in the future. John Paul Stevens: Well, now, let me ask it this way. Assuming there was not probable cause arguendo for the warrant, would you say that the magistrate's action was nevertheless proper? Rex E. Lee: Yes, yes. John Paul Stevens: Then, you're saying that it's proper for a magistrate to issue a warrant on less than probable cause. Rex E. Lee: Certainly... excuse me, proper for what? 0 [Generallaughter.] John Paul Stevens: For a magistrate to issue a warrant on less than probable cause. Rex E. Lee: No, certainly not. But, what we are saying is that on the facts of this case, there certainly was probable cause for Judge Lewis to issue the warrant that he did. John Paul Stevens: Well, I understand you said that. But if you also assume because the case is being reargued and all, that there was not probable cause for the warrant. Under that assumption did the magistrate act properly or improperly? Rex E. Lee: Improperly, could not issue a warrant on less than probable cause. Let me just deal briefly-- Warren E. Burger: Then there's another step for the policeman to take. The policeman has the warrant in his hand. He is not a lawyer. Rex E. Lee: --Under the-- Warren E. Burger: It was presumptively valid at that time, was it not? Rex E. Lee: --That is correct, that is correct. There will be additional opportunities-- John Paul Stevens: Let's be sure I understand. You're saying that whenever a warrant issues, the police officer's justification is justified in going forward with the search. Rex E. Lee: --In the great majority of instances that will be true. We don't know whether there will be exceptions or not. Certainly if there has been a judgment by a judge-- John Paul Stevens: Well, that... that's all this has been in the hypothesis if you've got a warrant. What, if any, would be a situation in which the officer should not execute the warrant? Rex E. Lee: --I don't know if there would be any. I think that those should await the further development of-- John Paul Stevens: But you clearly are overruling the Nathanson case. That is clear. Rex E. Lee: --I think that's correct. There will be other opportunities for this Court to decide Fourth Amendment cases even if it should rule and in this case as... as in our view the Court should. In the first place there are alleged Fourth Amendment violations involving a pan of practice of official conduct can often be challenged in a civil suit or declaratorium injunctive release. For example, in Torres versus Puerto Rico in which this Court held unconstitutional a Puerto Rican statute making it... authorizing police to search the luggage of any person arriving in Puerto Rico from the United States could have been resolved in an action for declaratory judgment relief by a regular traveler to Puerto Rico. Similarly under section 1983, suits can be dropped against municipalities for constitutional torts resulting from implementation of local ordinances, regulations, policies, or even customary practices. In addition, there is at least some likelihood that some states would decline as a matter of state law to adopt a reasonable belief modification to their own state exclusionary rules. And the ruling of the courts of those states on underlying Fourth Amendment issues could be reviewed by this Court. And, finally even in the prosecutions themselves, we see no credential or constitutional impediment to the courts deciding the substantive issue rather than going immediately to the remedial issue. We would call in this respect to the Court's attention the case of O'Connor versus Donaldson which is not cited in our brief, 422 U.S. 563, in which the Court did exactly that in a civil damage suit. It reached the constitutional issue first, and then remanded for determination whether there was a good faith immunity defense available to the defendant under the circumstances of that case. Closing, within a fairly short time after Mapp versus Ohio came down and consistently ever since then the Court has consistently identified instances in which the exclusionary rule does not apply because its truth seeking costs out weigh its deterrence benefits. Those individual holdings have been sufficient in number and sufficient in their consistency that it is now apparent that they constitute more than just parts of a whole. That there is, in addition, a whole principle itself. It remains only to declare the existence of that principle which is clearly applicable to this case where the action of the police officers was reasonable. Under those circumstances the judgment of the Illinois Supreme Court should be reversed and the case remanded to that Court. Warren E. Burger: Mr. Reilley-- James W. Reilley: Good afternoon, Mr. Chief Justice and may it please the Court. Any decision by this Court, directed at the question asked of us on November 29, to modify the Federal exclusionary rule can have no effect on the Illinois statutory exclusionary rule which constitutes inadequate and independent state ground for the decision of the Court below. Approximately-- Warren E. Burger: Why didn't the Court decide it on that ground exclusively, then? James W. Reilley: --I believe that at that time the issued was not raised, Mr. Chief Justice, therefore, it was kind of not... unnecessary for the Court to even mention something that was so obvious. The statute that I referred to was adopted twenty years ago and is included in the appendix to our original brief, Appendix 1A, and incorporated by reference into our brief on reargument. If I may briefly read the pertinent parts of that statute to the Court. It is entitled, Motion to Suppress Evidence Illegally Seized. And it reads briefly as follows. A defendant aggrieved by an unlawful search and seizure may move the Court to suppress as evidence anything so obtained on the ground that the search and seizure with a warrant was illegal, because the warrant is insufficient on its face or there was not probable cause for the issuance of the warrant. It goes further and substantively states if the motion is granted the property shall not be admissable in evidence against the movant at any trial. There is a further part of that statute which requires the motion to be made only before a court with jurisdiction to try the offense. In Illinois, that would be a full circuit court judge in a felony situation. And it requires further that the judge who enters the order make findings of fact and conclusions of law so that the order and judgment may be reviewed by a higher court. Based upon the statute, the trial courts in Illinois must test the facial sufficiency of search warrants against a probable cause standard and nothing less. The statute allows in a brief party to make a motion contesting a warrant's validity to a trial court in an adversary setting. It commands that if the motion is granted that the evidence shall not be admissable against the defendant at a trial. The Illinois appellant courts in construing this statute have viewed it as giving a defendant the right to move the court to suppress unlawfully seized evidence and recognizes this statute as the basis for pre-trial motions to suppress in Illinois. The case that indicates that is in an appellant court opinion, People versus Lebon, at 299 Northeast 2nd 336. The Illinois Supreme Court, in the opinion by Justice Schafer, has recognized this statute as the codification of the exclusionary rule first announced in People versus Brocamp which was mentioned by I believe Mr. Biebel. The decision of the Illinois Supreme Court in 1923, nine years after Weeks and forty years before Mapp and as such is the statutory exclusionary rule in Illinois as was indicated in Brocamp. That case was People versus Vanderalston at 349 Northeast 2nd, page 16, a 1976 opinion. The Illinois appellant courts in construing this statute have stated that this statute necessarily implies that the hearing judge has the authority to overturn the finding of the issuing judge on the probable cause question. That case indicating that is People v. Martin which is cited in our original brief on page 25. There's a substantial quote from Martin in that particular page. And that such a review over the issuing judge's decision to issue the warrant is necessarily proper and necessary. A case construing that is People v. Tatman in 1980, again an appellant court decision of 406 Northeast 2nd, page 619. Further, on reviewing a trial court's ruling on a motion to suppress illegally seized evidence the appellant court now reviewing the trial court's determination has a duty to affirm the trial court's decision unless the decision is manifestly erroneous. That decision is People v. Smithers at 394 Northeast 2nd, 590, in 1979, Illinois public case. Petitioner urges this Court to adopt the standard such that if the issuing magistrate made a mistake in his determination of probable cause, the evidence seized pursuant to the warrant should nevertheless be admissable. Petitioner is thus requesting this Court, not the Illinois Supreme Court when they argued there, to ignore the Illinois Constitution, to ignore the Illinois Statute and to ignore the Illinois Supreme Court's opinion in Brocamp 60 years ago. Further, petitioner's suggestion that search warrants deficient on their face should not be overturned flies in the face of this Court's language in Franks v. Delaware in dealing with the ex parte nature of the warrant process itself this Court and the dissent even indicated that it makes a good deal of sense to review search warrants issued by magistrates because of the ex parte nature and also because of Chadwick v. City of Tampa. Magistrates need not be trained lawyers. Warren E. Burger: Do you agree, Mr. Reilley, that a warrant once issued on the question for this is presumptively valid? James W. Reilley: I think a police officer has no choice once the warrant is issued because the warrant's language commands that the officer shall search the person and place named. I don't believe he has any discretion at that point. If he feels the warrant's invalid his feeling is irrelevant at that point since the magistrate already signed it and he is, as a matter of fact, obligated, I believe, to follow the signature of that search warrant because it commands him to do so. Prior to, as I indicated earlier... prior to the adoption of the statutory exclusionary rule in Illinois the Supreme Court adopted the exclusionary rule nine years after Weeks in Brocamp, again which is cited in our brief. The Brocamp decision was followed by many others including Peoples v. Castree which is cited in this Court's appendix in the Elkins decision. At that time there was a reference to cases that states that excluded and did not exclude evidence both before and after Wolf and before and after Weeks. Because of the Illinois exclusionary rules independent and prior existence to this Court's decision in Mapp v. Ohio, the question of whether the federal exclusionary rule should to any extent be modified in this case makes any such decision advisory because such a decision would have no effect on the statutorily and judicially mandated requirement in the State of Illinois that evidence seized without probable cause be excluded based upon the constitutional language which tracks the Fourth Amendment, the statutory language and the decisions. In summary, any modification of the rule can have no effect on the Illinois constitutionally judicially declared and legislatively enacted exclusionary rule. This Court in Cooper v. California made the statement which I feel is appropriate with regard to this state ground argument. A decision by this Court, of course, does not affect the state's power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so. Considering this jurisdictional question, I also urge the Court to read that portion of the brief submitted by the State Public Defender of California and the National Association of Criminal Defense Lawyers dealing with 28 United States code 1257, certiorari jurisdiction only to the extent that the language indicates that the Court will entertain a question over the rights or privileges which are specially set up in a state court. It's the respondent's contention that the State of Illinois never raised this question at any level in the state proceedings. That the State of Illinois is or should be aware of the fact that there has been an exclusionary rule in the State of Illinois for 60 years. That a judge has no choice if he finds no probable cause, under the law of the State of Illinois he must suppress the evidence. There is no good faith or reasonable belief exception. The statute is very clear on its face and we believe, the respondents believe, that the statute controls in this case. The petitioner's brief tells this Court, as I believe counsel indicated, that they're not asking for a good faith exception. They agree that the exclusionary rule should apply if the mistake is a question of law. I think there is no doubt about the fact that the determination of the existence or not of probable cause is a question of law. Certainly, it may be a mixture in that you have to look at facts, you have to look sometimes at hearsay declarations, but all in all the determination of the existence or not of probable cause is a question of law. So therefore, under counsel's own statement in his brief, if that is true then the exclusionary rule should apply. Counsel indicates that he believes that the exclusionary rule or the question of probable cause is a question of fact. Certainly, that cannot be true. If you look at Franks v. Delaware, again you look the language of this Court, seen in deciding that Franks should now apply a principle of going behind the search warrant getting to the integrity of the statements made to determine if there's an intentional or reckless misstatement. The Court in the majority opinion discuss the fact that there is no difference between looking at the sufficiency or facial sufficiency of the search warrant or to go behind the warrant and determine if there is something wrong with the integrity of the warrant. In other words, the exclusionary rule should apply in both circumstances. The case that I mentioned a moment ago, People v. Martin, which was cited in the respondents' original brief at page 25, is important for another reason. The other reason is that apparently the State of Illinois in that decision tried to do in the state court what the petitioner is now trying to do in this Court. And I believe the language is appropriate to repeat at this point. The substance of the state's argument on appeal is that Judge Stiegment's finding that probable cause to issue the warrant did not exist, was merely a substitution of his views for the findings previously made by Judge Munsch in issuing the warrant. The state would have us rule that once a magistrate issues a search warrant which he finds to be based on probable cause another trial judge may not overturn that decision in ruling on a motion to suppress. The Illinois appellant court stated then, we cannot agree with the state's argument. Such a holding would immunize the reexamination of the warrant process and determine the ruling upon a motion to suppress. Counsel never urged that in the Illinois courts. He's now urging this Court perhaps to overrule the statutory framework that all judges in the State of Illinois work under. That is very simply stated a standard of probable cause based upon the judgements of reviewing trial judges and later appellant judges reviewing under that manifestly erroneous standard that the Court has adopted. I think it's important to, at this time, look at the question that is really before this Court. We are dealing here with the warrant process. We are not dealing with the situation, such as Hill v. California where an officer reasonably thought that the person he was arresting looked remarkably like the defendant who he had probable cause to arrest. We are dealing with a very delicate Fourth Amendment warrant requirement. I believe it's important now to direct certain comments to that issue. The Fourth Amendment talks about reasonableness. The Fourth Amendment has a warrant clause which specifically requires that probable cause be the standard, that the warrant be signed by a neutral and detached magistrate, and that there be specificity in the warrant. By definition, a search warrant issued upon less than probable cause is per say unreasonable under the Fourth Amendment. To permit the introduction of evidence seized pursuant to an officer's inaccurate reasonable belief that he acted in compliance with the Fourth Amendment would establish a lesser standard than probable cause, best described as we did in our brief a reasonably unreasonable search. The Fourth Amendment standard of probable cause would become diluted and in effect would become whatever the officer thought it was. Dunnaway v. New York spoke to the question of probable cause and indicated there was a long history of testing the standard of probable cause against the standard of reasonableness as required by the Fourth Amendment. Dunnaway also said that the exclusionary rules should be based upon an objective rather than a subjective test. The key part of the warrant I believe is reasonableness. It makes no sense to ask that an exception to the rule be adopted when the word reasonableness is already included in the Fourth Amendment. And this Court has, with regard again to the warrant process, has dealt with the question of reasonableness in cases such as Ventresca in which the Court will give more credence to a judge's determination which has been upheld upon review in lower courts. And allow a little bit of leeway because we all understand that police officers are not legally trained. Therefore, the warrant process has already a built-in degree of sway between left and right, perhaps five degrees, to allow that reasonableness to already apply. Again, as I indicated earlier, the warrant process is ex parte. It necessarily implies that there are no adversary conversations to convince or not the magistrate to sign or not sign a search warrant. Common sense indicates it is basically a police officer who presents the search warrant to the issuing magistrate, and it is based upon the statements of the police officer that the magistrate makes his decision. I don't believe we are talking about the good faith of the magistrate when we talk about the question posed by this Court. Certainly, the magistrate made a decision. He made the decision based upon whatever training and whatever belief he had. However, the purpose for the review process under the Illinois statute and under this Court's determinations in Aguilar and Spinelli is to determine if the magistrate's decision to sign the warrant was in fact consistent with the standard of probable cause as applied to search warrants. I believe the question was asked on the argument of my opponents whether Nathanson should be overruled. I think, consistent with the argument of my opponents, this Court should therefore overrule Aguilar and Spinelli. Spinelli was a gambling case. Aguilar was a drug case. There was nothing egregious about that type of situation. Based upon the warrants in Aguilar and Nathanson were very very vague and did not describe probable cause to the sufficient standards that the trial court and the appellant court and this Court thought were proper. The exclusionary rule in search warrant cases does not apply merely to egregious conduct. It applies to the basic statement of the Fourth Amendment that no warrant shall issue but upon probable cause. And, if this Court or a reviewing court feels there is no probable cause, then the exclusionary rule applies. William H. Rehnquist: Isn't there a certain, at least partial irony in your position, Mr. Reilley? The law is supposed to encourage police officers to go and get a warrant rather than simply go ahead on probable cause without... what they think is probable cause without a warrant. And, yet, under the rule that you're advocating and I think many of the court's decisions undoubtedly support you the... if a police officer goes and gets a warrant he has to put in black and white once and for all his view of what facts amounts to a probable cause. And it's very easy to simply review it as the moment it was presented to the magistrate. But if he simply goes out on a basis of probable cause, it's a much more fluid situation where he can come into court two weeks later and testify what he thought was probable cause, and perhaps put a better face on the evidence that he has. James W. Reilley: Well, this Court's statements as you indicated, Mr. Justice, is that there is a preference for search warrants. That there is a preference for the police officer to take whatever facts unless one of the exceptions applies, for example, in an emergency or exigent circumstances, to take the facts to a magistrate, have the magistrate review them in a neutral and detached fashion to determine whether or not the officer is correct in his opinion at that time. And I believe... and, of course, the statements of the officer are then memorialized on the four corners of the affidavit in support of the search warrant so that a reviewing court may review them later. I agree that sometimes warrants may not be necessary, but this Court has already set out and delineated several exceptions to the warrant requirement which do not apply in a circumstance such as this where you're talking about searching a home and searching an automobile. But an automobile, not in the context of Ross or Changis but the automobile in the context of parked on the driveway somewhat in the respect of Coolidge, because of the way the facts happened in this case. The police didn't follow that car back from Florida. They waited for it to arrive on the driveway of the residence of the Gates'. William H. Rehnquist: In your experience have you ever known of a magistrate to refuse a request for a search warrant? James W. Reilley: Yes, I have. Yes, sir. William H. Rehnquist: Does it happen often in Illinois? James W. Reilley: It has happened in my experience on several occasions when I myself was a prosecutor about 12 years ago. William H. Rehnquist: Do you remember what sort of rate of acceptance you had-- James W. Reilley: Well, at that time I think there was a learning process of the standards of Aguilar and Spinelli going on in Cook county. And once that learning process developed a little further the rate became less and less because everyone was kind of learning together, how to apply it in the narcotics court in Chicago. So yes, there was that degree of turning away by judges and magistrates who were familiar with the standards of this Court. I believe that counsel's argument in terms of this search warrant is asking the Court totally to overlook what you said in Aguilar and Spinelli. And they argued the first time that this Court should overrule those standards. But now they're saying that if the magistrate makes a reasonable mistake and signs the warrant, but his mistake was reasonable, then the warrant should be good. They are totally asking this Court to avoid review, and they're totally asking this Court to avoid what is consistent with the Jones decision of saying hearsay can be the basis for a search warrant. They are forgetting that when they write the brief. If we're going to use the direct observations of a police officer, then we can dispense with the requirements of Aguilar and Spinelli to a degree. But if you're going to use hearsay, and in this case even more than hearsay, you're using a letter, the substance of which is contained... the police officers do not know who the writer is. The normal affidavit for a search warrant, at least the policeman knows who it is and he can establish the reliability of that informant by various statements about his past conduct. Warren E. Burger: --To what extent did the subsequent events bear out the accuracy of the anonymous letter? James W. Reilley: By subsequent to the search warrant being signed? The only thing that happened subsequent, if I recall correctly, is that once the car left West Palm Beach, Florida, and started heading in a northerly direction, the only other event that took place was that 23 hours later the car pulled up on the driveway. There was nothing else observed by the police. They ended their surveillance in Florida and did nothing until the car actually arrived. There was nothing else that was done. I assume Your Honor is not referring to the fact that they stopped them and then they opened the trunk and found the marijuana. That, of course, happened, but that was long after the warrant was signed. But there are no other events and we argued before and we argued in the Supreme Court of Illinois that the activities that they observed were innocent. As a matter of fact, not consistent with the letter. The letter writer said that Susan Gates would drop the car off and fly back home. Lance would drive it back by himself. Well, that did not happen. And I believe that we discussed the possibility of a self-verifying detailed for comparing Draper to this case. But that particular detail was critical. That was the area where the marijuana was supposed to have been placed in the trunk and if one would think logically that the letter writer said that Lance would drive it back by himself. Well, the letter writer was wrong. That fact was not verified. In fact, it was totally contradicted by the facts of the case. So therefore, there was nothing that was done after the warrant was signed that would in any way, shape or form add to the credibility or reliability of it. Lewis F. Powell, Jr.: Mr. Reilley? James W. Reilley: Yes, sir. Lewis F. Powell, Jr.: This case involves police reliance on a search warrant. What would you think of a case where the police relied on the validity of a statute that subsequently was held invalid? James W. Reilley: Well, this Court has directed to that question and I fully agree that that would be a different circumstance. Lewis F. Powell, Jr.: Entirely different. James W. Reilley: Entirely different. I cite as this Court has discussed in DeFillippo and the language of the conduct in the Peltier decision regarding the border search or roving boarder patrols. I feel that-- Lewis F. Powell, Jr.: Would you... would you think it appropriate to modify the exclusionary rule when police do rely on a statute subsequently held unconstitutional? James W. Reilley: --I believe, this Court has already directed their attention to saying that a policeman acting reasonably on a statute of a state that he was told was a proper statute by the legislature of that state, that reversing that decision as to that case is not going to deter police officers, because they're acting in conformance with the law of the state that is established specifically by a statute. And I believe this Court has indicated that. That makes sense. However, the legislature was wrong, apparently, if this Court feels that the statute was unconstitutional later. I see a difference, however, in that type of a situation. Lewis F. Powell, Jr.: In Stone against Powell, the Ninth Circuit Court of Appeals, a habeas case, invalidated the arrest of an individual, I think it was in another state, perhaps Arizona, where the warrant subject to the ordinance upon which the policeman had acted subsequently was declared invalid. So I take it you would agree that the Ninth Circuit Court of Appeals made an error in that case. James W. Reilley: Well, only based upon this Court's decision in DeFillippo. Lewis F. Powell, Jr.: Right. James W. Reilley: The petitioner in his reply brief makes reference to a case called On Lee v. the United States regarding the use of informants. And since we're on that subject I wish to comment on On Lee. On Lee dealt with the use of informants as witnesses at a trial. And the question there was whether they should testify. And if so, what credibility should the trier of fact give to the testimony of an informant. I don't know what relevance that case has to the case before this Court. Of course we're talking about informants, but we're talking about them in the context of Aguilar and Spinelli, which makes sense when you're reviewing a hearsay statement to determine what seems to be logical. If the hearsay declarant is a reliable person that can be believed, and what he says comes from some personal knowledge or comes from hearsay observations or statements by someone else, the On Lee case has nothing to do with that type of credibility. They say also U. S. v. Matlock, stating that this case applies to a search warrant procedure and judge's decisions to give whatever right he wants to an anonymous letter. The Matlock Court was dealing with the use of hearsay statements at a motion to suppress in a trial Court. That again, has nothing to do with the weight to be given to an anonymous letter, the source of which is unknown to the police, the magistrate, and everyone else. The recent cases... getting to the question of the non-application of the rule... in respondent's opinion, the recent cases of Havens, Janis and Calandra do not support the position of the petitioner and the solicitor general in that the Court had stated in those cases that there was no possible deterrent function that could arise from the lack of use of... for the use, rather, of unlawfully seized evidence in, for example, a grand jury setting. A grand jury setting being totally without an adversary situation; an investigatory body, the police officer's function or the police officer's deterrence really not effected by that type of a situation. Since, obviously, if an indictment arises from the grand jury, that evidence could not be used at a trial. However, the mere perfunctory function of a grand jury to indict and to formally charge someone, the deterrent effect would not be violated. Similarly in Havens the gentleman who was stopped at the airport who denied later at trial that the tee-shirt which was found in his suitcase had the pieces cut out of it which contained the cocaine in his partner's suitcase, when he got up and lied before a jury and said that tee-shirt wasn't his, although it was suppressed in a lower Court, this Court ruled rightly that he should be impeached by that because the fact finding and truth finding process of a trial makes more sense. Again in Janis the use of suppressed evidence in a federal civil tax case also makes sense. And as the Justice asked me, Stone v. Powell, in a habeas review, if the state had given a full and fair hearing to the Fourth Amendment question all the way up the state's highest Court, then there is no need to review it in a habeas corpus proceeding. That again does not destroy the deterrent function. I distinguish in the brief, and I say again that the cases such as U. S. v. Williams, which everyone seems to be relying on to ask this Court to adopt an exception, can be distinguished totally... again a non-warrant case... that's the difference. Williams, the larger majority felt there was probable cause in that case. And it's understandable if one reads it that the officer who made the arrest, Mr. Marconey, knew the arrestee because he had arrested her before. And, I believe it was a reasonable mistake a fact and that's what the Court held. However, I believe, he had probable cause as did the larger majority in the Williams court. The Court has already indicated several exceptions to the warrant requirement incident to a valid arrest, plain view cases, auto search cases, inventories, border searches, consent searches, exigent circumstances, and, even, in Terry v. Ohio there was a carved out exception under certain circumstances of articulable suspicion. It seems to us that the petitioner and the solicitor general are asking the Court to carve out another exception to make, if a good faith test is the basis for an admittedly no probable cause warrant, then, what good is the warrant process itself. They indicate a warrant can be lacking in probable cause, but still good anyhow if the officer thought it was. I don't believe the Court is going to adopt such a standard in light of the language of the Fourth Amendment itself. As this Court said in the United States v. Ross last year, good faith is not enough to constitute probable cause. That faith must be grounded on facts within the knowledge of the officer which in the judgment of the Court would make his faith reasonable. It's not just the judgment of the officer. It has to be reviewed because of the ex parte nature of the warrant process itself. There are defenders of the rule, I believe, the... one of the most important defender was a little six page brief filed by Mr. Johnston, the prosecutor in Polk County, Iowa. If one were to want to ask about statistics, and I don't necessarily believe in the empirical studies and I know this Court has indicated in its opinions that there may not be any that are really viable. But Mr. Johnston said as a prosecutor that the rule has served no serious impediment to prosecuting the guilty. The rule has fostered police professionalism. He cites in his brief in 1980 over 6,487 cases prosecuted in his office, only thirteen of which were dismissed and only nine of those involved narcotic cases. That's two out of a thousand that were dismissed because of the exclusionary rule. I think that is probably the most meaningful statistic that I've ever seen. As a prosecutor, he feels that the Mapp case was a firm admonishment, that even a worthy law enforcement end cannot justify an unconstitutional means. He feels that police are better trained since Mapp. He says the result of any exception would be a signal to law enforcement to take the forth amendment not so seriously. I know the Court is familiar with the statements of others who have testified before or written letters to the senate subcommittee on the exclusionary rule. Steven Saks is another example, the attorney general of Maryland says there is much more corporation between prosecutors and agents of law enforcement as a result of the exclusionary rule. The bottom line is the prosecutor and the policeman want to convict if the evidence can stand up in court. So, it would be as stated by Judge Stern, it would be a slander on the police, and a slander on the FBI and the district attorney and the United States attorney, to say that they would not follow this Court's decisions when they know that the exclusionary rule would apply if they did not. Even Professor Ball, a proponent of good faith, concedes that the rule has accomplished increased police training and awareness about their responsibilities. Commissioner Murphy, after the Mapp decision said there was a total reconstruction in his police department in New York as a... from the top down to the foot patrolman as a result of the Court's decision. To what weight the Court will give it I do not know, but we cite in our brief a footnote 10A and obviously this as 10A came as an afterthought only because the quote came in a newspaper shortly before the brief was completed. The detective who authored the affidavit in this case was quoted in a Chicago newspaper as saying, if he knew then what he knew now about the exclusionary rule he would have better corroborated the information. This Court need only look to the array of a amici briefs filed in this case on behalf of the petitioner and on behalf of the respondent as evidence of the fact that the rule does in fact deter. Thirty-four states have either filed or joined in the filing of amicus briefs in this case. The International Association of Chiefs of Police have filed. The National District Attorneys Association has filed as well as an array of amici on behalf of the respondent. That indicates, I believe, that there is attention drawn to this only because of the effect of the exclusionary rule itself, the deterrent function. Perhaps the amici on the petitioners side are complaining because the rule works too well. If such a modification were adopted, even on an objective rationale, the practical effect in police departments will be that instead of strict compliance with decisions of this Court police will err more in favor of every questionable conduct and not even in close cases, thus making their own law. The police will really be telling the Court what the Fourth Amendment means. Review will be extremely tedious because of the standard of being objective will require someone to develop criteria against which the standard can be measured. Thus, Fourth Amendment law will be reduced to a series of Ad Hoc decisions instead of on a categorical basis so that law enforcement officials can have workable rules. And that conduct, of course, was shunned upon in the Dunnaway decision. The Fourth Amendment body of law cannot be Ad Hoc decisions. It must be a categorical body of law so that the institution of police, not just the individual police officer, can understand what this Court says is proper under the Fourth Amendment. This Court should not modify the exclusionary rule in this case. The warrant process contains sufficient leeway in the context of reasonableness in its definition of probable cause. Any lesser standard will encourage police not to comport their conduct to the standard of probable cause. The cost of keeping the rule in terms of freeing some defendants is small in contrast to the overall benefit to society of keeping law enforcement in check and maintaining the delicate balance between individual freedom and the effective law enforcement. Unless there are some questions, I have no further comments. Warren E. Burger: Very well, thank you. Mr. Solicitor General, excuse me, Mr. Attorney General, there is only one minute remaining. Do you wish to make any use of that? Paul P. Biebel, Jr.: Thank you, Your Honor. The issue from our perspective involves an analysis of this case according to a probable cause standard. We feel that when historical definition of probable cause is taken into consideration which envisions all the facts and circumstances presented to the Court and to the police, we feel that a judgment in this case would be different. We feel that artificial rules often get in the way and cause situations where there are aberrant opinions which come down which defy common sense because courts feel compelled to imply hypertechnical evaluations of the rules of this Court. Mr. Reilley talks about the Amicus Brief and the county eye of a prosecutor who indicates that he's had very few cases involving suppressions. That may well be true. But we have one here and we have a serious case, here. We have people who are undoubtedly drug couriers, the evidence of which has been suppressed. Three hundred and fifty pounds of marijuana, seven hand guns and rifles in their house and large amounts of drug related evidence in their house. Even though the cases... even though there may be some dispute as to the amount of cases, the point is they do involve serious situations in many instances. And, this is certainly one of them. We feel that the price that the rule exacts in this case, the exclusionary rule exacts, is simply too high. This Court has ruled. Thank you very much. Warren E. Burger: Thank you, gentleman. The case is submitted.

John G. Roberts, Jr.: We will hear argument first this morning in Case 15-1391, Expressions Hair Design v. Schneiderman. Mr. Gupta. Deepak Gupta: Mr. Chief Justice, and may it please the Court: This case is about whether the State may criminalize truthful speech that merchants believe is their most effective way of communicating the hidden cost of credit cards to their customers. By design, New York's law suppresses the message that you pay more -- Sonia Sotomayor: I'm sorry. I -- I -- you're two groups of -- of Petitioners. One wants to just give a cash price without any information about the surcharge, and the other, I thought, wanted to give two separate prices. So not everybody doesn't want to give truthful information about the surcharge. Deepak Gupta: No -- well, they do, Your Honor. They all want to do the same thing. They -- they -- I think what you're referring to is that some of them are doing different things now. One of the Petitioners, Expressions Hair Design, is engaging in dual pricing, they're charging two different prices, one for cash, one for credit, but they are trying as hard as they can to describe that as a -- as a discount so that they comply with the law. The other Petitioners right now are refraining from dual pricing altogether, because they don't want to run the risk of -- of failing to comply with this regime. But if we win this case, all of the Petitioners would like to charge two different prices for cash or for credit, and they would like to be able to characterize the price difference as a surcharge for using a credit card. Sonia Sotomayor: That's not what I understood, but your adversary can tell me. Elena Kagan: Mr. Gupta, what -- what speech precisely do you think is being restricted? Deepak Gupta: The -- the message that when you use a credit card, you're paying more, and to be more precise, I think if you look at Joint Appendix 103 through 104, you'll find there the supplemental declaration of Expressions Hair Design where they say exactly what they'd like to do. And if you look at the yellow brief, it's page 1 of the yellow brief, we have a chart. And what we'd like to do, ideally, is describe the pastrami sandwich as $10, and then tell you that it's going to cost a certain percentage more, 2 percent more, to pay with a credit card. Elena Kagan: Well, I guess that's why I said like what speech precisely, and you said the message that you're going to pay more if you use a credit card. Deepak Gupta: Right. Elena Kagan: But, you know, as -- this -- this statute is not written in terms of speech, it's -- it's written in terms of imposing a surcharge. And -- and let's say that somebody -- let's say that there is a merchant and the merchant charges the list price for something as a dollar and the person comes up to the cash register and offers a dollar bill. Deepak Gupta: Uh-huh. Elena Kagan: And -- and the cashier says, oh, no. For you it's 95 cents because I impose a surcharge for people who use credit cards; right? Deepak Gupta: Uh-huh. Elena Kagan: Now, would that violate this law? Deepak Gupta: I -- you know, I don't know, and what -- part of the difficulty is -- and the reason, we have a vagueness challenge -- Elena Kagan: You don't know? How would it violate the law? Deepak Gupta: I don't think -- I don't think it would. I don't think it would. And certainly the State hasn't taken that position -- Elena Kagan: You don't think it would. Deepak Gupta: I don't think it would. Elena Kagan: Even though you're describing something as a surcharge. Because -- the reason it wouldn't violate the law is because the conduct is, you know -- it -- it fits the law, right, that essentially you're not imposing a surcharge on credit card users. Whatever you call it, however you describe it, you're not imposing a surcharge on credit card users. Deepak Gupta: Well, I think the way this law works is that you can engage in precisely the same conduct. You can charge the two different prices, one for cash, one for credit, and what -- what runs afoul of the law is describing the price difference one way as a surcharge versus a credit, and you know that -- Elena Kagan: See, that's what you keep -- you -- you said that again -- Deepak Gupta: Right. Elena Kagan: -- and I think my hypothetical was designed to show that that's just not right. I mean, I can imagine ways in which you might say that this is restricting speech, but that's not it. Because as long as the price listed is the higher price, is the price that a credit card company has to pay, as long as that's true, you can describe it any which way you please. And you can describe it in terms of impose -- of -- of imposing a surcharge or charging credit card customers more, and it still is not going to violate this law. Deepak Gupta: I -- I don't think so, Justice Kagan, and I think in your hypothetical -- the -- it -- in your hypothetical, the merchant hasn't telegraphed to the consumer at the same time the two prices, right? That's not what our clients want to engage in. If -- if New York wants to continue to enforce this statute against deceptive practices or false advertising, we have no problem with that. This is an as-applied challenge, and the merchants in this case want to engage in truthful speech. They want to disclose more. They want to -- Stephen G. Breyer: They want to do more. They want to impose a surcharge. Deepak Gupta: No. No -- Stephen G. Breyer: Then what's the problem with saying -- you -- you don't -- you're too young to know what the OPA was. Deepak Gupta: I think -- I think so, Justice Breyer. (Laughter.) Stephen G. Breyer: It's called the Office of Price Administration. Deepak Gupta: Right. Stephen G. Breyer: Ken Galbraith ran it for awhile. And they would -- what they would do, he said is they'd go around and they'd smell what the right price was. Deepak Gupta: Mm-hmm. Stephen G. Breyer: And after they said that in World War II, you couldn't charge a higher price. Would you have come in and said, Ken Galbraith says you can only charge $13 for this item. It violates our free speech. Deepak Gupta: Absolutely -- Stephen G. Breyer: Because we want to charge $15. Deepak Gupta: Absolutely not, Justice Breyer. Stephen G. Breyer: And very well what this statute says is, you can't impose a surcharge. Very well, you can't. Deepak Gupta: Right. Stephen G. Breyer: And you want to. Stephen G. Breyer: What's that got to do with speech? I grant you, all business activity takes place through speech. Deepak Gupta: Right. Stephen G. Breyer: So explain to me what it's got to do with speech. Deepak Gupta: And I agree, if you look at this statute, it doesn't scream First Amendment probably -- Stephen G. Breyer: Not only doesn't it scream it, I want to know -- Deepak Gupta: Right. Stephen G. Breyer: Unless you want to say whenever a businessman is regulated in what he can do, or she -- Deepak Gupta: Mm-hmm. Right. Stephen G. Breyer: -- that violates the First Amendment or at least potentially because they do it through speech. Deepak Gupta: Right. But this is a regime that says you are allowed to call it a surcharge, you just can't call it a discount. And the enforcement -- Stephen G. Breyer: I don't see that in the statute. My statute that I'm reading says you can't charge a surcharge. Deepak Gupta: Well -- Stephen G. Breyer: But you can charge a discount. Now, I know, Paul MacAvoy, I hate to bring up these long-gone names, but he was an economist with whom I wrote a book. And he would have said what you said, that, well, a discount and a surcharge are the same thing economically. Deepak Gupta: Right. Stephen G. Breyer: But we live in a world that not everybody is an economist, and many people think it's quite a different thing, and there are a lot of studies in this thing that the -- you know, that said it was a different thing. That's what they can't do. Deepak Gupta: Certainly -- right. Certainly consumers react to the way price information is communicated -- Stephen G. Breyer: Not in the way -- you have the regular price. If you go above the regular price, it's a surcharge. If you go below the regular price, it's a discount. Deepak Gupta: But in this case, both sides agree the way the regular price is -- is defined is in relation to how you communicate that. Look at page 28 of the red brief. They define regular price based on how it's communicated. I think both sides come to this case with two propositions that they agree on. We all agree that the regulation of prices, the kind of price regulation you're talking about, Justice Breyer, is economic conduct that doesn't implicate First Amendment concerns. We also agree -- we also all agree and know from Virginia Board that communicating price information to consumers is protected by the First Amendment and is at the heart of the commercial speech doctrine. Samuel A. Alito, Jr.: Can I go back to -- Deepak Gupta: Plus -- Samuel A. Alito, Jr.: -- Justice Kagan's hypothetical. It doesn't address the situation where dual prices are posted, but it addresses a situation where there is a dual-price regime. Some consumers are going to pay more; some consumers are going to pay less. Deepak Gupta: Right. Samuel A. Alito, Jr.: And in her hypothetical, she says the sticker price is the higher price. And then when the cash purchaser comes to the cash register, the purchaser gets a pleasant surprise. No, you are going to be charged less. But I thought your argument was that this -- if that is the correct interpretation of the statute, and -- and I don't really know what the statute means and we don't have a definitive interpretation. But if that is the correct interpretation of the statute, what New York State has done is to force the merchant to say -- to post a particular sticker price -- namely, the higher sticker price -- as opposed to the lower sticker price. So that is mandated speech. Isn't that your argument? Deepak Gupta: I think if New York -- it's not mandated speech in the sense they haven't told us precisely what to say. Samuel A. Alito, Jr.: Well, under that interpretation, if it's okay to post the higher price and nothing more, and if the higher price is the credit card price, they are -- they are forcing the merchant to speak in a particular way. Deepak Gupta: I think what they are doing is -- they are -- they are forcing the merchant to speak in a particular way in the sense that you have to characterize the price difference a certain way in order to comply with the statute. Elena Kagan: Mr. Gupta, this exchange -- I mean, I think that these are two very different theories of what makes this a speech restriction. And I guess the reason I asked my question was because Justice Alito's theory does not appear to be your theory, and I want to know which theory we're really talking about here. Justice Alito's theory is that when the legislation says you have to post the higher price, that that in itself is a restriction on speech. And that's an interesting argument, and maybe he's right about that. I don't know. Now, your brief took a different position. Your brief essentially said the problem is that this -- this -- this legislation affects the way a cashier or somebody in a store -- just affects -- it affects the way they describe transactions generally, you know, and the cashier is going to be worried that she can't say to the customer, you charge more if you use a credit card. And I guess I wanted to know, which theory is your theory? Deepak Gupta: I think our theory is what you just described. Elena Kagan: The latter one. Deepak Gupta: But I think Justice Alito is not wrong that if -- it would certainly implicate First Amendment concerns if the -- if the State were to say, here is how you have to display your prices. But that would be -- it could be, theoretically, a disclosure regime; right? And that's what the solicitor general has posited, a disclosure regime -- Sonia Sotomayor: Counselor, can I -- I'm -- part of -- I'm a little bit like Justice Alito and less than Justice Kagan. I'm not sure what you or anybody is saying about this statute or what it means, but not because it's necessarily vague. I just don't see anything about speech in the statute. Deepak Gupta: Well -- Sonia Sotomayor: The statute simply says, "No seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means." To me, it's very simple: One price for everything. Deepak Gupta: Well, Justice Kagan -- Sonia Sotomayor: You walk in and -- forget about -- I don't know where they get the discount from or that the statute permits that, because what it says on its -- to me, on its plain terms is one price. And you told Justice Breyer that that was okay. Certainly would be -- I'm hard-pressed to see if that's the interpretation given to what I view as the plain meaning of the statute, that that would be unconstitutional. Deepak Gupta: But this is not a statute that functions in a vacuum; right? And in the other States that enacted statutes at the same time, some of them put in their text a surcharge is okay; a surcharge is not okay -- Sonia Sotomayor: New York didn't. Deepak Gupta: -- a discount is not okay. New York didn't, but it -- but everyone has agreed that it has been interpreted in parallel with those statutes. And -- Sonia Sotomayor: Well, this is a really nice agreement, except the State below had two different interpretations. Deepak Gupta: But the -- but the State has never wavered from its interpretation that framing the price difference as a -- as a discount is perfectly permissible under this regime. And you don't have to take my word for it and look only at the text of the statute. You can look at the way it's been enforced. So the statute was enacted in the 1980s. A few years thereafter, there was the first reported criminal prosecution under that statute. And in that case, a gas station owner had the posted prices, cash and credit. But the -- what -- what caused the criminal prosecution is that the cashier made the mistake of describing the price difference as a nickel more for using a credit card rather than a nickel less for cash. It was that speech and that speech only that triggered the criminal prosecution. And the prosecutor in that case and the judge all agreed that's what the statute meant. Sonia Sotomayor: And you tell me that that's what the State is going to tell me, that if they post credit card price 2.10, cash price $2, that if the cash -- if the person comes to the cashier and gives them a credit card, the cashier is going to say, you know you're paying a surcharge of 10 cents; you're going -- you're going to be prosecuted for that? Deepak Gupta: Well, the State can try to run away from the enforcement history, but I think it would be very difficult to run away from the most recent enforcement history. The State went after 50 or so merchants in 2008 and 2009. There were sweeps. You have, in the Joint Appendix, declarations from merchants who were caught up in that sweep, lawyers, the trade association head. And what happened in all of those cases was that somebody called up on the phone from the attorney general's office pretending to be a customer, and they said, what are your prices? And those merchants said, well, it costs, you know, say, $10 to buy the heating oil and then, you know, this many cents more to pay with a credit card. And that was the only speech that they engaged in. They -- they disclosed their prices. There's nothing deceptive about that. And they were -- they were -- they were targeted by the attorney general's office. And then they asked the attorney general, how do we comply with this statute? And you'll find that at Joint Appendix 107. The attorney general's office didn't say, disclose the total credit card price. They said, you have to frame it as a discount. You can charge more all you want. And I think that shows that this speech is regulating nothing -- John G. Roberts, Jr.: Now, does your -- Deepak Gupta: -- this statute is regulating nothing but speech. John G. Roberts, Jr.: Does your argument depend upon the fact that there is no difference from the consumer's perspective if he sees this product is $100, come in and buy it, and then he gets to the cash register and there's a surcharge, no, it's $103, and it's $100, he goes to the cash register, pays cash, and they say, well, happy you, it's $97? And is your argument that a consumer sees no difference in those two situations? Deepak Gupta: No. Our -- our -- John G. Roberts, Jr.: Can you agree with the -- the State that that is -- could be to some extent misleading as far as the consumer -- Deepak Gupta: I think -- John G. Roberts, Jr.: -- is concerned? Deepak Gupta: I think it's really important to understand that this is an as-applied challenge. And the only thing we are challenging is the application of the statute to merchants who want to simultaneously prominently disclose both the cash price and the credit card price, but want to frame the credit card price as a surcharge. Anything else is not within the scope of our as-applied -- John G. Roberts, Jr.: Well, under your -- Deepak Gupta: -- challenge. John G. Roberts, Jr.: Under your -- under your argument -- I just want to understand. I understand you say, well, that's -- it's not this case. But under your argument, how would you analyze the -- the hypothetical that I posed? Deepak Gupta: I think if the State wants to have a regime where they think it's a deceptive practice because you aren't telling people the -- the higher price or the -- the price difference at the same time, and that people are hoodwinked or there's bait and switch, they are perfectly free to do that. It's odd that there's a criminal regime in this case, and false advertising law certainly makes it possible to do that anyway. But if the State wants to enforce this statute that way, we have no problem with that. They can continue to do that. If you look at Joint Appendix 144, you'll see an example of a bait-and-switch scenario like that. The odd thing there is that the State didn't invoke its Section 518, the no-surcharge statute. They enacted the false advertising statutes, which suggests that this statute has something else in mind. And -- Samuel A. Alito, Jr.: I'm going to say when I first read this statute without knowing anything about the background with the Federal statute or reading the briefs or the Second Circuit opinion, I interpreted it the way Justice Sotomayor did, that it mandates a single price. Now, that may be a -- an uninformed interpretation, but I feel somewhat uncomfortable about ruling on the constitutionality of this statute without knowing how the court of appeals, New York court of appeals would interpret the statute. So why shouldn't we certify that question of interpretation to that court before we plunge into this First Amendment issue? Deepak Gupta: Well, the State of New York didn't ask for certification below. Believe it or not, you know more about the New York statute than you know about any of these statutes. And the other courts that have confronted the Florida statute, the California statute, they had no problems striking them down without an enforcement history. They all have been understood to mean the same thing. And -- and I think, you know, what you said -- what this Court said in Sorrell is that plaintiffs in a First Amendment challenge have a right to prompt adjudication despite ambiguities in State law. And so this Court used to abstain in First Amendment challenges where there is some ambiguity in State law. I think the -- the modern trend in this Court's cases has been to take a crack at it. And, you know, you have the enforcement history. You know what the statute means on the ground. If you had a content neutral statute and the State were enforcing it consistently in a content discriminatory way, you wouldn't say, well, we don't know what the statute means, you can't challenge that. In effect, when you bring an as-applied challenge, you're bringing a challenge not just some words in a statute book, but also to the way that the statute is being enforced. And the injunction in an as-applied challenge would look the same whether you conceptualize that as a challenge to the statute as written or to the State's enforcement policy. Either way, we want an injunction that says -- Stephen G. Breyer: Well, now, this is exactly what's worrying me. The State, you say, told some merchants that they cannot say that they have a surcharge. Is that what it is? Is that the problem? Deepak Gupta: You can -- Stephen G. Breyer: But they did say, you can do exactly the same thing? Deepak Gupta: Exactly. They said you can charge -- Stephen G. Breyer: Did they say, do exactly the same thing -- Deepak Gupta: Yes. Stephen G. Breyer: -- or did they say you can have a discount? Deepak Gupta: They said you can charge more all you want. Stephen G. Breyer: You can charge more all you want. Deepak Gupta: You just have to call it a discount. Stephen G. Breyer: Did they say call it a discount? Deepak Gupta: Yes. Stephen G. Breyer: So what we are doing here is we are taking all the principles which are important of a First Amendment case and we are going to apply them speedy determination not as applied, you know, across the board. There are lots of protective things. And we are diving headlong into an area called price regulation. It is a form of price regulation, and price regulation goes on all over the place in regulatory agencies. And so the word that I fear begins with an L and ends with an R; it's called Lockner. And there we go. Using the First Amendment as a tool to get at price regulation that enforcers will sometimes say the wrong thing. Okay? So that's a very general question. But if you want to know what's worrying me, that's it. Deepak Gupta: Justice Breyer, I understand the concern. I think it's a serious concern, but it's not a concern at issue in this case. And that's because this is not price regulation. This is the regulation of how prices are communicated. And I think that the Joint -- the declaration in the Joint Appendix shows you that. When the State says to someone, you can charge more all you want, you just have to call it something different, that's not price regulation. That's the regulation of how prices are communicated. And I think here's the test, Justice Breyer. If you want to figure out -- because we all agree that Virginia Board is the law, right? Communication of price information is protected by the First Amendment. But we also all agree that price regulation is economic conduct. So you ask, can you come into compliance with the law simply by changing what you say without changing what you charge? And that is the scenario here. That's exactly what the State told those merchants. They said, you don't have to change what you charge, charge the same thing. Change what you say. Elena Kagan: Mr. Gupta, you're putting really a lot of emphasis on a few cases in which prosecutors describe the law in a certain way. But the law as written doesn't really do any of the things that you're saying. I mean, Justice Alito is right. The law as written actually can be read -- and Justice Sotomayor said this before -- as just requiring a single price. Now, that's something that none of the parties here say, but if you just look at the law, that's what the law says. Deepak Gupta: Right. Elena Kagan: Let's take that out of the picture. Even then the law can say, the only thing that we are requiring is that you list the higher price. That's the only thing that we are requiring. And then you can describe what you're doing any way you like. You can use the word "surcharge." You can use the word "more." You can use the word "less." You can use the word "discount." It doesn't matter. So long as you list the higher price, you're in the clear. And that, too, is very different from what you're saying, maybe from what the prosecutor said. But just the way you read this law, it just doesn't give -- I mean, what these prosecutors say don't match what the law says. Deepak Gupta: Well, the law -- Elena Kagan: The law says, you know, this is all about listing, you know, conduct; what you can charge. Deepak Gupta: But the law also means what it means on the ground. And we have -- the State agrees we have a credible fear of prosecution if we -- if we say what we want to say. So there's no dispute about that. The Document 51 in the district court, they conceded that if we say what we want to say, we could be prosecuted tomorrow, that shows there's a case in controversy about whether we can be prosecuted for -- for truthful speech. Elena Kagan: Well, New York is saying in its brief that that's not the case; that you can say what you want to say; that you can call this a surcharge; that you can communicate in the way you want to communicate as long as your listed price is the -- is the credit card price. Deepak Gupta: But that makes it impossible. I mean, that makes it impossible to frame the price as a surcharge, because that -- that normalizes the credit card price. It makes that the baseline price, and that effectively defines away a surcharge. And that's been the purpose of this -- Sonia Sotomayor: So you think the Federal law was unconstitutional as well. Deepak Gupta: I think the Federal law was unconstitutional, too. We don't have to win that fight to win this case. Ruth Bader Ginsburg: Were there any prosecutions under the Federal? Deepak Gupta: There were not. And the reason is that the Federal Trade Commission, the Federal Reserve Board and the consumer groups all opposed that regime because they thought it hid the cost of credit from consumers. There was never any enforcement, but you can look in the blue brief at pages 11 through 15. We've tried to lay out how that regime worked, and I don't think it is the way the Solicitor General has characterized it. You cannot find any regulations from the time that the Federal regime was in effect that said, all you have to do is list the highest, you know, credit card price. That would look like a disclosure regime. Ruth Bader Ginsburg: As far as discounts are concerned, is there some protection that the merchant can offer a discount? Deepak Gupta: That the merchant can offer a discount; in other words, can they do that under this statute? Is that -- Ruth Bader Ginsburg: No. I thought that there was some legislation that permitted -- Deepak Gupta: There's Federal legislation that says that it is a violation of the statute to have private ordering that forbids a discount and that's why what you had, Justice Ginsburg, were contract rules that made it illegal for merchants to frame the price difference as a surcharge. Those contract rules were rescinded in 2013 in the face of antitrust scrutiny, and that's what led to this litigation. If there are no further questions -- Elena Kagan: I'm sorry. You said something very interesting. Deepak Gupta: Yes. Elena Kagan: You said if you take the statute, if you understand the statute to just mean that the listed price has to be the credit card price, that looks like a disclosure regime. Could you explain that? Deepak Gupta: Sure. I think a disclosure regime would look very different. It wouldn't be a hidden accidental disclosure regime. It would tell you exactly what it was requiring; right? And you wouldn't have any confusion and then you would have to probably analyze that under Zauderer, and you'd ask a few questions: Is it specifically priced -- precise that merchants have some warning or guidance? Is there some evidence that it's furthering some anti-deception interest? We do math all the time. We -- we know that we can add the sale -- sales charge as a percentage of the service charge on a restaurant menu. Nobody thinks that that's a problem for consumers to do math. So why in this one place are they requiring the total price? Could it be because they want to suppress the message that merchants want to get across? Is it unjustified or burdensome? Is it impossible for merchants, if they have to frame only one price, to do it this way or is it going to dissuade them from getting their message across -- John G. Roberts, Jr.: Thank you, counsel. We'll afford you a minute for rebuttal. Deepak Gupta: Okay. John G. Roberts, Jr.: Mr. Feigin? Eric J. Feigin: Thank you, Mr. Chief Justice, and may it please the Court: I want to focus on what I take to be the core of the First Amendment dispute between the parties, which I think centers around a merchant who, for example, wants to label a soda as costing $1.95 with a 5 percent credit card surcharge, and the question is whether the State can require the merchant to specifically identify a price of $2.05 before charging a customer who wants to use a credit card that amount. A law like that is very similar to a law that simply regulates pricing or requires a merchant to honor their offers to make or enter into a contract of the sort that we normally wouldn't think is subject to any First Amendment scrutiny. We nevertheless think that the requirement that everyone seems to agree is imposed here is best viewed under this Court's precedence as a speech regulation because, in effect, it's prescribing how the merchant communicates an otherwise lawful pricing scheme. But to the extent that New York's law, like the Federal law, simply requires a disclosure in dollars-and-cents form of any higher credit card price in circumstances where the merchant has decided to display the lower cash price in dollars-and-cents form, it's a perfectly valid consumer disclosure law under this Court's decision in Zauderer. We -- Sonia Sotomayor: Mr. Feigin, could you get more concrete for me? Take the list of four ways that they would like to advertise in the reply brief. Which ways do you think -- or would the New York law potentially or actually make any of this conduct illegal? Eric J. Feigin: Your Honor, I don't think I can answer that question as to the New York law. I -- Sonia Sotomayor: Why? Eric J. Feigin: Because I think we lack a definitive interpretation from the New York court of appeals. I think much of dispute between the parties, as the first 25 minutes of questioning revealed, involves what the New York law actually does under particular circumstances. I can answer that question on the assumption that the New York law tracks the former Federal law, which, the only thing the Federal law actually did once you trace through the definitional sections was to require, as I said -- as I was saying earlier, disclosure in dollars-and-cents form of a higher credit card price when the merchant has decided to post a cash price. Sonia Sotomayor: Fine. So look at this -- if that's what this law means, which of these four ways of advertising would be permissible and which would be unpermissible? Eric J. Feigin: Option A, where it's a $10 cash price, $10.20 credit price, would be fine. Option B, where it's $10 cash price, 20 cents surcharge per item added to credit card purchases, would not be permissible. You'd have to actually disclose in dollars-and-cents form, it would be 10.20. Sonia Sotomayor: 10 -- you would have to say $10.20. Eric J. Feigin: Correct. And I'd like -- Sonia Sotomayor: So that's regulating speech; it's not regulating price, because it's the same price whether -- I can do that math. Eric J. Feigin: The -- that is why we think that this is better viewed as a speech regulation under this Court's precedence. But let me explain why I think it's a reasonable disclosure. Sonia Sotomayor: Finish this -- all right. Eric J. Feigin: Option C, Your Honor, which is $10, 2 percent surcharge, would be the same as Option B, you'd actually have to say $10.20. And then Option D, which is $10.20, 20-cent discount for cash purchases, is fine because you're disclosing to the consumers the highest possible price that they would have to pay in dollars-and-cents form. Elena Kagan: And -- and your understanding of why it is a speech regulation, it -- is because it affects the way you list prices; is that right? Eric J. Feigin: That's right, Your Honor. So a law, for example, that simply required a merchant who made a particular representation that the price of this item is $1.95 and required that merchant to honor -- and that was all the merchant said, didn't say anything about surcharges at all, and the law simply required the merchant to honor that price when the consumer gets to the cash register, that's an economic regulation. That's just a regulation that is regulating pricing or contract offers, but the -- the law here, I think everyone agrees, does something a little bit more. In Options B and C that I was just discussing with Justice Sotomayor, you can have a price tag that does reveal a -- the existence of a surcharge expressed as a mathematical formula and the law would say that's not good enough, you have to actually list it as a price. Anthony M. Kennedy: Well, but -- Eric J. Feigin: If I could, I'd like to address what's constitutionally permissible -- Anthony M. Kennedy: -- what is your position as to the constitutionality of prohibiting Options B and C in the pastrami sandwich example on -- Eric J. Feigin: Well, Your Honor, first of all, I wouldn't characterize it as prohibiting Options B and C, but simply requiring an additional disclosure. It has to finish off the math problem for the consumers and tell them that the credit card price is $10.20. The reason that's permissible constitutionally under Zauderer is that -- I think it's important to keep in mind the legislatures are legislating against a backdrop, whether there isn't necessarily any specific requirement at all to even disclose the existence of the surcharge. And I think the two -- John G. Roberts, Jr.: That's a very -- that's a very patronizing approach. I mean, you're saying in B when it says it's $10 cash, it's 20 cents surcharge, that they've got to do the math and say, by the way, that's $10.20? Eric J. Feigin: And let me explain why, Your Honor. I think there are two good reasons why that has to be done. First, if you're -- or why it's reasonable for -- Anthony M. Kennedy: I thought it was $10 and 2 cents, but I'll think about that while -- (Laughter.) Eric J. Feigin: I think there are two reasons why it's reasonable for a legislature to decide that if it's requiring -- Anthony M. Kennedy: Yeah, right. Eric J. Feigin: -- a disclosure of the facts that the credit card price is going to be higher, it can require that disclosure to be made in dollars-and-cents form rather than a mathematical formula. First, the price -- John G. Roberts, Jr.: Oh, no, I thought you were telling me that they -- that it's not enough. Even if it's in cash, if they say that's a 20 -- 20-cent surcharge, that violates the statute. Eric J. Feigin: Your Honor, if all they said was $10 price and 20-cent surcharge -- John G. Roberts, Jr.: Right. Eric J. Feigin: -- and they don't say $10.20 credit card price, that, as we understand it, would be a violation of the Federal statute. But let me please explain why. Anthony M. Kennedy: Now, if -- if that -- if -- if B or C as stated are a violation of the New York statute, in your view, is that a violation of the First Amendment? Eric J. Feigin: It is not, and I think for two reasons. Anthony M. Kennedy: Even though this is truthful information. Eric J. Feigin: All that's required -- Your Honor, it's not prohibiting them from saying what's in Options B and C. It's requiring a further disclosure in dollars-and-cents form. I think there are two reasons why Congress or the New York legislature could permissibly require the disclosure to be made in dollars-and-cents form. First, that's the most easily digestible form in which people receive prices. It allows for easy comparison of prices and doesn't require the consumer to complete a math problem. Second, I think this directly -- John G. Roberts, Jr.: Hold on -- now, hold on. You're saying that the -- the American people are too dumb to understand that if you say $10 plus a 20-cent surcharge, they can't figure out that that's $10.20. Eric J. Feigin: And the second reason, Your Honor, I think addresses that concern directly. (Laughter.) Eric J. Feigin: Which is that there is -- which is that there is an administrability concern here. John G. Roberts, Jr.: There's an -- Eric J. Feigin: An administrability concern. Once you start allowing mathematical formulas, you can get into a debate about when the formula becomes too complicated for your average consumer. You can imagine -- John G. Roberts, Jr.: It's too much to say $10 plus 20 -- I -- I suppose it's a mathematical formula, but it's for second graders. Eric J. Feigin: Well, Your Honor, let me see if I can -- first of all -- Elena Kagan: Well, isn't the idea, Mr. Feigin, that if you said 32.46 plus 2 percent, then you really are requiring people to do some work and you'd rather just have them know that it's -- see, I can't do it that fast. (Laughter.) Eric J. Feigin: Well, Your Honor, you might also -- you can see that -- John G. Roberts, Jr.: I agree that percent -- that -- that's Point C, that's not B. I agree that a percentage is more complicated. Eric J. Feigin: Well, you -- John G. Roberts, Jr.: But 20 cents and $10, that's not too complicated unless you're taking a very patronizing and condescending view of the capabilities of the American consumer. Eric J. Feigin: I think, Your Honor, under Zauderer, Congress -- or the New York legislature is entitled to draw clear lines. I think it becomes more complicated if you show up at the store and you want to buy 17 things than if you're just buying the one thing, that increases the complexity of the math problem, and it would be much harder to write a law that allows certain formulas, but not certain other formulas. You could imagine a store that says, if you buy an -- here are our prices in cash. If you buy an item in credit, we're going to charge you a surcharge equal to the -- a percentage that is the fifth digit of pi. John G. Roberts, Jr.: Yes, yes. I -- I'll give you that -- Eric J. Feigin: There's a subset of the population -- John G. Roberts, Jr.: -- that takes a little longer to figure out. But you're saying that it violates the law if it says $10 plus 20 cents. Eric J. Feigin: I think, Your Honor, they're entitled to have a bright-line rule. You could have a price that's a little bit -- that creates a harder math problem of the sort that Justice Kagan supposed. And again, you could also be buying many items at once. You could have only a certain amount of money that you want to spend and have trouble figuring out what you're going to be able to fit under that budget -- Elena Kagan: Could I -- I feel it -- I'm sorry. Eric J. Feigin: -- and it makes for comparison pricing much easier. Elena Kagan: Can I ask you a different question? It -- it does -- this does not look like a disclosure requirement. It just -- I mean, one way to understand this is exactly what you said. It -- it requires disclosure. Whether everybody needs that disclosure, whether only a few people need that disclosure in the $10.20 case, but it requires disclosure to make sure that everybody is on the same page in terms of knowing prices. But if you look at the language of the statute, it just doesn't look like that. And -- and if we're going to say that something is a disclosure requirement and so subject to a lesser forum of First Amendment review, shouldn't the State be making clear that that's what this is? Eric J. Feigin: You're -- may -- may I answer -- John G. Roberts, Jr.: Sure. Eric J. Feigin: -- Mr. Chief Justice? Your Honor, I think the best thing for the Court to do here is, the Federal law was clear. I think you can use the Federal law as kind of a baseline for discussing the issue, remand to the Second Circuit and allow for the New York court of appeals to have a definitive interpretation of the law, because there's clearly some dispute about what the New York law does. John G. Roberts, Jr.: Thank you, Counsel. Mr. Wu? Steven C. Wu: Mr. Chief Justice, and may it please the Court: The plain text of New York's statute refers only to a pricing practice and not to any speech. The statute prohibits a seller from imposing a surcharge on a customer who elects to use a credit card. For sellers that list a single price as nearly all sellers do, the application of the statute is straightforward. The seller may not add to its listed prices and instead must adhere to those prices if a customer decides to pay by using a credit card. Samuel A. Alito, Jr.: Could I just ask you a preliminary question about the division of litigation authority in New York State? Does the attorney general or the solicitor general have the authority under New York law to bind all of the district attorneys in the State to an interpretation of this statute? And has the attorney general issued a -- an official interpretation so that all of the district attorneys will be required to -- to enforce this in the same way? Steven C. Wu: So the attorney general and the district attorneys are separate authorities under New York law. In this case, however, the relevant district attorneys for the counties where these Petitioners are located are parties to this case -- Samuel A. Alito, Jr.: Yeah. But, see, that's a -- Steven C. Wu: -- and have expressed their endorsement. Samuel A. Alito, Jr.: That's a problem for me. How many district attorneys are there in New York State? Steven C. Wu: There -- there are -- there are many. Samuel A. Alito, Jr.: There are many. So you tell us how you interpret this, but how do we know how all of these other district attorneys are going to interpret the statute? They may interpret it differently. Steven C. Wu: Well, I don't think fundamentally there should be a debate about the -- the statute here. And -- and it's because a plain reading of the text here means reading what it means to impose a surcharge. Elena Kagan: But, you know, there does seem to have been a debate about what this statute means. Because I look at some of this enforcement history and I think -- I don't really understand why this violates that law. And, in fact, you've walked away from some of that enforcement history in your briefing and said, look, the cashier can call it whatever she wants to call it as long as the listed price is the credit card price. But that is contradicting some of this enforcement history where a different understanding of this law was used. So how do we deal with that? Steven C. Wu: Justice Kagan, I disagree that we are walking away from the enforcement history here. See, I think if you actually look at what the enforcement history looks like, especially from the attorney general's office, that it confirms sort of the plain reading of this statute in a single-price scheme. And the heating oil company example, I think, is the clearest one. In each of those cases, when the investigator from our office called up and asked, what is your price, they were given a single dollars-and-cents answer. And on page 106 of the Joint Appendix they asked Parkside Oil, how much is a gallon of oil? And they said, $3.45. And it was only when the investigator said, I'd like to pay by a credit card, that at that point the oil company representative said, I'm going to impose a surcharge of an extra 5 cents per gallon set on top of the previous price. And I think that pricing practice reflects the commonsense understanding of the word "surcharge," which is an additional fee or charge on top of a baseline that the seller itself has -- has established. Anthony M. Kennedy: But under your view, if the heating oil people had said, it's $103 if you pay by credit card; if you do not pay by credit card, pay by cash, it's $100, that is lawful? Steven C. Wu: That's -- that's correct. I mean, if the heating oil representative -- Anthony M. Kennedy: Then it's a matter of how the pricing structure is communicated -- Steven C. Wu: Well -- Anthony M. Kennedy: -- in the speech. Steven C. Wu: Well, I mean, let me respond in this way, which is, of course the definition or the determination of whether there's a surcharge will look back to the seller's original pricing practices, because that's the meaning of a surcharge, is a difference from some previously conveyed price. But the First Amendment doesn't prohibit the State from using a previously conveyed price as a baseline for a price regulation. As -- as the United States has acknowledged, a regulation that just said you shall adhere to your previously conveyed prices or even previously advertised prices is a perfectly understandable economic regulation that would be conduct. Anthony M. Kennedy: But suppose -- suppose in -- in the heating oil example they said, it's $103, but cash is $100, and that's because we impose a surcharge. Would that be lawful? Steven C. Wu: That -- that would be fine. I take that to be similar to Justice Kagan's example about the $1 charge for a cup of coffee with -- with a -- with a description of it as a surcharge. And the statute does not prohibit that scheme because, at the end of the day, the listed price, which is in that case conveyed over the phone, is the same as the price charged to a credit card customer. But -- Sonia Sotomayor: Is your answer to the reply brief examples the same as the solicitor general's office? And do you have a concern the way it does that the statute could be read more broadly? Steven C. Wu: So we -- our answers are the same as to the four examples there, and we do not think it is read more broadly. I mean, one thing that is crystal clear from the lighter side of history here is that New York intended to carry out the same policies and same purpose as the Federal statute that had just lapsed, and the same history is present in all of the other States that have adopted a similar surcharge issue. Samuel A. Alito, Jr.: Then why didn't New York -- I mean, New York adopted this against the backdrop of a lot of consideration at the Federal level. Why did it not adopt the Federal definitions? Steven C. Wu: I can't answer that question because nothing in the legislative history explains why they did not. Ruth Bader Ginsburg: What did the other -- Steven C. Wu: But -- Ruth Bader Ginsburg: -- the other States that picked up after the Feds didn't renew the statute, what did the other States do? Steven C. Wu: At -- Ruth Bader Ginsburg: Did they do what New York did or did they copy the Federal statute? Steven C. Wu: Well, the vast majority of them did not adopt the Federal definition. As far as I'm aware, only Massachusetts adopted the Federal definitions. And there are some exceptions where some of the statutes actually have a separate definition of a surcharge, which is just the plain meaning definition that we have adopted here, which is in addition to a previously disclosed or regular price. And so all of these statutes are really -- should be, we think, read similarly here. Samuel A. Alito, Jr.: Well, if I had the authority to interpret the New York statute, which I really don't, and I saw that they copied part of a prior statute, but they deliberately omitted other parts of the prior statute, I would be tempted to infer that they had a reason for omitting the definitions. And that was that they didn't want to be bound by that, so they wanted something different. Steven C. Wu: I don't think there's anything in the history that would support that interpretation, Justice Alito. And I would just say part of the reason that they may not have felt it necessary was because just as the Federal statute originally did not have these definitions for a period of many years, the legislature may have believed that the ordinary meaning of a surcharge is obvious enough that they didn't need the clarifying definitions of the -- of the Federal statute. Stephen G. Breyer: Go ahead. Are you finished? Steven C. Wu: Yes, sir. Stephen G. Breyer: All right. Help me. I may be the only one that needs this help, but I do have this Lockner problem. One, if this -- if I were a legislature -- legislator, I would have voted against this statute. I think it does hide the cost. That has nothing to do with this. Two, I think that the reason we're having so much trouble is because it's so difficult, but not impossible, to distinguish between surcharge and discount. And if you want to distinguish -- and they are different -- words are very helpful. They're evidentiary. But what we're after is not the words. They're evidentiary of something. But that's all almost we have. Three, the fact that you have the questions you've had and both sides of the bench have had such trouble with this, to me, is strong evidence that the Court should stay out of this under normal First Amendment standards. Because if we don't, we are going to discover all kinds of price regulation all over the place that suffers to greater or lesser degrees from this kind of problem, and you'll have judges all over the country substituting for regulators and others in trying to regulate. That's where I'm coming from. Now, you tell me how to do it. Steven C. Wu: Well -- Stephen G. Breyer: That is, you tell me, given precedent, et cetera, what should we overrule? Or what should we narrow? If, as I believe is true, these regulatory areas are areas that not normal First Amendment, "tough, you can't do it" principles apply -- weakened forms might because it applies everywhere in a sense. But it used to be rational basis. It used to be rational basis. But water has flowed over that dam or under that bridge or whatever, and so I want to know your best thinking on what you would do in terms of trying to write a rule of law that would favor you. Steven C. Wu: I'm going to give two responses to that. I mean, the first goes back to the text of the statute and recognizes that this statute is not phrased in any way that touches on what we would ordinarily think of as a speech. In contrast to, for example, the statute in the Milavetz case, which talked about regulating the advice that a -- that relief agency would give to a potential client. Sonia Sotomayor: We're talking -- Steven C. Wu: This talks about the imposition of a surcharge. Sonia Sotomayor: I can't look at this statute and rely on its words or make a judgment on its words because nothing of what you're saying it applies to is said on the face of this statute. Steven C. Wu: Well -- Sonia Sotomayor: You're asking me to take a lot of steps, which is start with the language of the statute, ignore it, and go to a Federal statute and apply its definitions. How many of them, you haven't quite told me. How you differ, you haven't quite told me. And -- but I'm going to assume the Federal definitions apply, even though none of them are used here. So I'm -- I'm very confused why you're starting your answer to Justice Breyer by saying, look at the statute and see what the words of the statute are doing. Steven C. Wu: Well, if I could get to that in just one second and finish the answer to Justice Breyer's, because I think given the way the statute is phrased, the easiest way to dispose of this case is to recognize this as a direct price regulation that this Court in 44 Liquormart and other cases have held is not subject to First Amendment scrutiny. Ruth Bader Ginsburg: But it doesn't set a standing price. It doesn't set any price at all. It lets the merchant set the price. And the question is how that price is described. So I think it's quite different from OPA ceiling prices, which says you cannot charge more than the ceiling price. Here, the sky is the limit as to what the -- the merchants can charge. New York is not regulating what the price of the goods are. Steven C. Wu: But the way to understand the statute -- and I think this answers Justice Sotomayor's question as well -- is that once the seller has chosen that price, which I agree they have a free choice about, then its ability to change that price for someone who uses a credit card is constrained. And I think this is easiest to understand in the scope of a single transaction. You walk into a store, they give you a menu with a list of pries for their food. Those prices are in large part unadorned by any conditions about when those prices apply. And you know, in the course of that transaction, between when you sit down and when you pay the bill that those prices will be the prices charged to you even if at the end of the transaction you take a credit card and pay for it. Sonia Sotomayor: No, I don't, because I know I have to pay sales tax. Steven C. Wu: Well, you might have to pay sales tax. Sonia Sotomayor: And every -- and every State I have to figure out what that sales tax is and I've got to do the math in my own head. Steven C. Wu: That's -- that's correct. And -- and there are a lot of price adjustments that sellers could impose. You could have coupons, member discounts, et cetera. But I think those actually support our point here, because what do those price adjustments apply to? And at the end of the day, New York's position under the ordinary definition of a surcharge, is all of those adjustments apply to the regular or starting price -- price of a good or product. Elena Kagan: I mean, here's the narrow way in which this seems to affect communication, speech. I'm a seller. I set my prices. I say I want to charge cash customers a dollar and I want to charge credit card customers $1.05. All right? Now, if I put my list price as $1.05 and then the cash customers get a happy surprise, that seems fine. But if I put my list price as a dollar and then the credit card companies get a not-so-happy surprise, that can't be done. So it does affect the way a seller communicates which price he's going to say is the regular price, is the list price. So why isn't that a speech regulation? Now, you might say, as the solicitor general does, it is a speech regulation, but it's only a disclosure regulation and subject to a lower standard. But you're saying it's not a speech regulation at all. And I want to know why, given that it is affecting which price you choose to say is your list price. Steven C. Wu: So even if it does affect what a seller does in that case, it's only because the list price is being used as evidence to support whether an imposition -- whether a surcharge has been imposed later. And it's perfectly permissible under the First Amendment for conduct to be defined in relation to previous acts of speech. You know, conduct can be initiated evidence or carried out through speech and the First Amendment doesn't bar a State from regulating it in that way. And I'll just use a couple of examples that I think make this clear. Under a statute that says the seller shall adhere to a previously advertised price, that regulation, which the United States says is an economic regulation, would be susceptible to the same analysis. If somebody wants to charge $100, they know that what they have to do is list $100 in their advertisements or in their stores. They can't list $98 or $95 or $90. And a similar example comes from this Court's decision in Rumsfeld v. Fare, which recognized that part of determining whether law schools had improperly excluded military recruiters from campus might be looking at the contents of emails or notices or other evidence of the underlying conduct of exclusion. And that's the only way that a seller's prices are being used here. It's being used as the benchmark to determine whether the seller has engaged in the unlawful conduct of increasing a previously disclosed price. Now, why this is clear under the statute, getting back to Justice Sotomayor's question, is in part because of the posture of this case. We have a set of Petitioners here who are bringing, as their counsel has acknowledged, an as-applied challenge. And if you look at the conduct that they want to engage in here, there is no ambiguity about what they think is the baseline or regular price. All of them want to -- Anthony M. Kennedy: But suppose that a business makes a point of its reputation is -- is meeting all prices. We meet prices. And there is a business that's very close to another State and the other State allows cash, has -- has an option where all surcharges are permitted and surcharges are -- are disclosed. Then the State -- the seller in this State says, you know, we will charge the lowest price, we will meet the price, but we add 3 cents for credit cards. And because that's difficult to enforce, all of our prices are increased by 3 percent for everybody because of the difficulty of applying surcharges in some cases. Is that valid? Steven C. Wu: I think it probably would be deemed to be a credit card surcharge in that case. Obviously, no court has addressed that specific question. It's not presented by any of the Petitioners here. And I don't mean to be evasive about it. I think that's an important point because in an as-applied challenge, the relevant question is whether the statute can be applied to what the Petitioners want to do. And none of them want to engage in these complicated pricing schemes. All of them say -- Anthony M. Kennedy: The question of Justice Breyer says that -- that this is so complicated, doesn't that indicate the statute is vague? Steven C. Wu: It -- it does not, because under the vagueness doctrine under the Due Process Clause, as long as there are a core set of cases that people can understand, that's enough to sustain it. And especially when it is clear how it would apply in the -- in the context of the plaintiffs' own allegations. And here again -- and this is clearest from page 101 and 102 of the Joint Appendix. What the Petitioners here want to do and what they will do the moment the statute is invalidated is to list a single set of prices, a single set of prices for each of their goods and services and then collect an additional man on top for -- for a surcharge. Now, it might be the case that other Petitioners or other plaintiffs would engage in more complicated pricing schemes. But the proper way to resolve those questions is in future as-applied cases if and when they arise. And -- and one of the things that we can say from the enforcement history is it's deeply unclear whether those cases will arrive. Sellers first have to engage in those pricing schemes -- Sonia Sotomayor: So they hold this in an as-applied a challenge -- I hope your adversary will confirm this -- that they want to do these four things that's in the reply brief, one or the other. If we say these are okay, whatever else the law means we're not reaching because this is an as-applied challenge. If -- if we say they're okay or the New York State court of appeals say it's okay, it's okay; right? Steven C. Wu: Yes. I think that's -- Sonia Sotomayor: But you're saying more than this. You're saying this is how they advertise it, but that there's a further disclosure law that when a customer calls up the gas station, the gas station can't do any one of these four things and potentially other things, too; right? Steven C. Wu: I don't think that's our argument. And I should clarify I do think some of these schemes are not okay in the sense that you couldn't impose a credit card surcharge under some of these boxes. But if I'm understanding your question correctly, we are not saying -- Sonia Sotomayor: I'm saying if we say it's okay. I know you're not claiming it is. Steven C. Wu: But -- but one point I want to respond to is the idea that what somebody says over the phone here can affect the underlying price structure. I mean, we treat the phone calls, including the phone calls in the enforcement history here, as just evidence of what the underlying prices are in the same way that a printed placard itself, although an active communication, would itself be evidence of the underlying prices. And there's no dispute here that when the heating oil representatives were describing their company's prices, they were describing a price scheme that they had settled upon -- Samuel A. Alito, Jr.: Does this apply -- Sonia Sotomayor: I'm sorry. Samuel A. Alito, Jr.: Does this apply to all merchants? Anybody who sells anything? Steven C. Wu: It -- it does. There are limited exception for government entities who are not deemed to be sellers. Samuel A. Alito, Jr.: I mean, suppose some kids have a lemonade stand or they're washing cars and they say a glass of lemonade, $1 and then somebody comes up to them and says I'd like to buy that with a credit card. It might happen today. I have -- I have never seen anybody younger than me buy anything with cash. But that would be a violation if they put the $1 there on the assumption that everybody is going to pay cash for their lemonade. These are tech savvy kids so they can -- could process a credit card purchase if they wanted to? Steven C. Wu: The statue has no exemption for kids selling lemonade. (Laughter.) Steven C. Wu: I think -- I think prosecutorial discretion would almost certainly be exercised in that -- in that situation. Stephen G. Breyer: You can think of examples which I can't. In areas like energy, people who make their own energy who use time-of-day metering, there could be lots of regulatory rules that affect how an energy company presents the pricing of this element or that element included. Now, if I think that in all these areas the correct First Amendment standard is rational basis, nothing stronger, how then do I distinguish the cases which you've talked about how you -- what you say in respect to price because after all, even if it's just evidentiary, this statute does affect what people say as to price. So if in fact I need a legal distinction here to get at what I think the First Amendment is driving at, what's your best effort? Steven C. Wu: Well, they affect only what you say about price as an incident to preventing you from engaging a certain pricing practice in the first instance, and I think this is the distinction this Court has drawn in cases like Virginia State Board of Pharmacy. I mean, that's a case about price advertisements, but the understanding there is that the advertisements are describing an underlying price that would be applied. For instance, if a consumer walked into a pharmacy and wanted to buy a prescription drug. And -- and this case is about that consumer transaction. The descriptions of the prices are incidental to the regulation of the underlying consumer transaction and the price that the seller may impose here. And -- and I think the point about the other regulations that may apply is also an important one in a -- in a couple of respects. I think the most important point of these other regulations is that they demonstrate that there are multiple ways in which the legislature or Congress can address what happens to a default or regular price, and they all operate in tandem. The legislature could, for instance, say, you can't do a credit card surcharge as here. They could also say, you can increase your prices at a car rental agency if you add an additional driver, or if you have a car seat. And all of these would operate on the same underlying price structure. The starting point for all of these, as we've argued in our brief, would be the seller's regular or baseline price. If we -- Ruth Bader Ginsburg: If we -- if we agree with the government that this is because it affects how the merchant characterizes his price, would you also take the position that the government takes that it's justified as a disclosure law? Steven C. Wu: We -- we think that it can be, and -- and -- and in part that's because we agree with the government, with the Federal Government, about the compliance options under this statute. It is true under both the New York law and the Federal law that the way a seller complies with the statute is to display a dollars-and-cents price that it later charges the credit card customers. Ruth Bader Ginsburg: Can you explain to me how it's a disclosure requirement to suppress the actual cost of the credit card purchase? Steven C. Wu: Well, it's not suppressing the actual cost of the credit card purchase. It's only preventing -- well, I'll -- I'll say two things. At most it is preventing one way of conveying a credit card price, but the better way to look at it, as the government explains, is that it's just requiring a different price -- the higher dollars-and-cents price for credit card customers to be displayed. Elena Kagan: Mr. Wu, you think, is this not true, that the dual pricing scheme is legal; is that right? Steven C. Wu: That's correct. Elena Kagan: That was something that the Second Circuit did not decide, said it was abstaining on. It seems to me that that's quite relevant to this question of whether this is a disclosure requirement. Because if the dual pricing scheme is not legal, it is really hard to characterize this as a disclosure requirement. Would you agree with that? Steven C. Wu: I think that it would be. But -- but I think it's important to recognize also why the Second Circuit abstained on this question. It didn't so because it rejected our interpretation of the law which would allow dual pricing. It did so because it found that the statute was readily susceptible to an interpretation that would allow dual pricing because of the clear indications that New York intended to follow the Federal statute, and so it wouldn't adopt an interpretation that would raise constitutional problems. And although -- although we think this Court could adopt our interpretation of the -- of the State law, it would also be fair to recognize that there is no reason to deviate from the Federal statute on this front. But -- but I also want to respond to one other point that Justice Ginsburg had raised, which is whether this suppresses information about credit card costs, and -- and it does not in this important sense: Nothing about the statute prevents a seller from educating consumers about credit card costs, informing them about it, talking about it. Many of the Petitioners here do do so. Brooklyn Pharmacy, for instance, has told its customers not to use credit cards because of the additional costs that they impose, and they remain free to do so under this statute. And in an important sense, that speech is actually a better and more direct way of advocating about credit card costs than the mere imposition of a surcharge. Your Honor, Expressions Hair Design, for instance, wants to impose a flat 3 percent surcharge without apparently any further speech here. And the difficulty with that as a message about credit card costs is, one, it doesn't explain why the surcharge is being imposed; two, it doesn't say that it's being imposed because of a specific thing, there's a merchant interchange fee that credit card issuers charge; and, three, it says nothing about the amount of the interchange fee. A flat 3 percent fee actually that bears no relationship whatsoever to the actual costs, which range from 1.1 to 2.7 percent, that sellers actually infer when they pay. Sonia Sotomayor: There is nothing about the scheme that addresses that. The scheme has no disclosure requirement of what was your actual credit card charge versus what you're charging. The scheme does nothing to help that situation. Steven C. Wu: If I could answer just this question. John G. Roberts, Jr.: Sure. Steven C. Wu: That's correct, but I think this supports our point. The scheme does not affect anything that sellers may say about their credit card costs. The very narrow thing that it does is to put an imposition of a surcharge in the consumer transaction, and that's what's the classic economic conduct regulation. John G. Roberts, Jr.: Thank you, Counsel. Mr. Gupta, a minute. Deepak Gupta: Thank you, Mr. Chief Justice. The solicitor general agrees with us that this is a restriction of speech, but posits that the only thing that's left on the table is a disclosure rationale that New York abandoned in the courts below and is barely pressing here, and the problem with that is that this is a criminal speech restriction. And so if your merchant is faced with compliance, they've got to know, if -- if you think this is a disclosure regime, what are we supposed to say? And typically a disclosure regime doesn't leave you in the dark about what you have to say. The government tells you precisely what to say. And Zauderer recognized this problem. It said that there are serious constitutional problems if you have a disclosure regime that does not tell the merchant precisely what to say. Zauderer isn't a free pass. The government has hypothesized a regime that could exist, but if it did exist, it would still be subject to some First Amendment scrutiny. And you would have to ask of that regime the question that Chief Justice Roberts asked, which is, do we think people are too dumb to do math and why in this one context do we think that? Could it be that it had something to do with suppressing the cost of credit cards. Thank you. John G. Roberts, Jr.: Thank you, counsel. The case is submitted.

William H. Rehnquist: We'll hear argument now in No. 86-1904, Arizona v. Youngblood. Mr. Gustafson, you may proceed whenever you're ready. Is it Gustafson or... it's Gustafson, isn't it? John R. Gustafson: Gustafson. William H. Rehnquist: You've Americanized it. John R. Gustafson: Mr. Chief Justice, and may it please the Court. This case concerns whether the Fourteenth Amendment requires dismissal of a state criminal conviction for the alleged failure of police to properly preserve and to test certain materials obtained from a rape victim. The Respondent was convicted by a jury of crimes involving the rape of a boy. The Arizona Court of Appeals found that the Respondent was denied due process because of police inaction in two areas: first, that police did not perform certain tests on materials they had obtained from the rape victim. These materials were properly preserved as they were refrigerated. And secondly, the police did not refrigerate the victim's undergarments that they had obtained when the victim went to the hospital. The lower court found that these inactions on the part of the police constituted a due process violation requiring reversal of the jury's verdicts and dismissal of the prosecution. It is the State's position that the lower court has substituted speculation about the evidentiary value of these materials for the constitutional standard of materiality and in doing so, has obviated the role of the jury as the trier of fact. The circumstances regarding the collection of the evidence in question are as follows. On October 29, the 10 year old boy was kidnapped and raped. Omitting the details of the crime, he was taken to the hospital shortly after the offense. At the hospital the boy was treated for his injuries and, in addition, the treating physician used what is known as a sexual assault kit. It's a device. It's a device... it's a kit that collects evidence from different areas. But in this particular instance, the physician used a swab, swabbed the boy's rectum, made a microscopic slide of the contents of the smear, gave it to police who refrigerated it. And that was the proper thing to do. At the time, the police also gathered the boy's undershirt and his underpants. Those were placed in a bag and placed in property, and they were not refrigerated. About nine days after the gathering of that evidence, the police criminologist examined the microscope slide obtained at the hospital. He found that there was spermatozoa present on the slide, but found only a small portion of it. Sandra Day O'Connor: Mr. Gustafson, did the defense ask for any Brady materials in this case? John R. Gustafson: No, and they don't need to. Under the Arizona Rules of Criminal Discovery, we're obligated to give that to them. We have to-- Sandra Day O'Connor: What does the record show, if anything, that the State disclosed to the defense about the existence of the swab and the clothing? John R. Gustafson: --The record shows... there's an absence in the record on this part. The police disclosure-- Speaker: xxx-- John R. Gustafson: --Excuse me? There's an absence in the record-- William J. Brennan, Jr.: --Absence, sorry. Thank you. John R. Gustafson: --The police disclosure or the State's disclosure in this case is its formal police reports which are given directly to defense counsel. Sandra Day O'Connor: The police report shows that there was a rectal swab and some clothing of the victim? John R. Gustafson: Yes. Now, what's clear is that 10 days after his arraignment... we will bring this to December 20... there was supposed to be a preliminary hearing which wasn't held. That is at the time that the State had to issue its disclosure. William H. Rehnquist: Mr. Gustafson, could you speak up a little bit? John R. Gustafson: Okay. Yes. Antonin Scalia: xxx Crank the thing a little higher. You're a tall Scandinavian there. We-- John R. Gustafson: But I cannot say at the exact time that they knew about the existence of... because there was a continuing process of disclosure. Sandra Day O'Connor: --Did the defense ever ask to examine these items to do their own testing? John R. Gustafson: No, they did not. The-- Sandra Day O'Connor: Why didn't the State conduct tests on the clothing for the blood group do you suppose? John R. Gustafson: --The... they eventually... to put it in a nutshell, they were put into property and no one asked the police criminalist to examine them for over a year. They were not examined. William J. Brennan, Jr.: When you say they were put into property, what do you mean? John R. Gustafson: An evidence locker. William J. Brennan, Jr.: An evidence locker? John R. Gustafson: Yes, in a paper bag. They were not refrigerated or anything like that. Police collected at the scene, put in a bag and placed into evidence. After the police criminologist examined the microscope slide, which was nine days after the crime, some six weeks or five weeks after that examination, the Respondent was arrested. His mental competency was called into question. The case was stayed for about eight months pending the resolution of that. Discovery still continued during that period of time. The State then asked on October 15 to obtain samples from the Respondent for comparison. That was denied by the trial court. When the case first came to trial, which was in December of 1984, the defense called the criminologist who did not examine any of the evidence, either the rectal swab slide or the underwear. He testified only regarding... in general matters about the existence... what might or might not be found upon these materials. The defense at trial used this to create... as an attempt to create a reasonable doubt in the jury's mind. The police criminalist had... had tested the rectal swab shortly before trial and determined that it did not have-- William J. Brennan, Jr.: That was a year or so after-- John R. Gustafson: --It was. William J. Brennan, Jr.: --it had been refrigerated, wasn't it? John R. Gustafson: That's correct. It was a year after. William J. Brennan, Jr.: And I gather there were some signs after that test that perhaps, if it were accurate, the accused would be exonerated, wasn't there? John R. Gustafson: There wasn't... contamination wasn't shown on the sample that was refrigerated. The defense expert stated... eliminated... since it was refrigerated, eliminated the possibility of bacterial contamination because it had been refrigerated. In fact, at the lower court, the Respondent had asked in his opening brief that the case be remanded for possible retesting of that refrigerated thing. But I don't think it was established that that was contaminated. There was some speculation as to that. At trial the Respondent's position about the testing was this. Since the ABO blood test done on the sexual assault kit determined that there was no blood type on it, that raised two possibilities. It was either that that sample was insufficient when it was gathered, or that the true assailant... this is according to the Respondent... was part of 20 to 25 percent of the population who do not secret their blood type into their other bodily fluids. At that trial the defense expert also questioned about the underwear, essentially that that would be a good place to look, or it... frequently, in his experience, that semen would be found upon it. That trial resulted in the hung jury. Following that trial, the police had obtained a new test, which is called the P-30 test. That test had been used in only... it was of recent vintage and had been used by about 50 percent of the crime laboratories in the country. And the Tucson Police Department obtained that test, and then they tested that sample in January. Again-- William J. Brennan, Jr.: What did they test then? John R. Gustafson: --In January they tested the underwear. William J. Brennan, Jr.: Now, this is more than a year after the-- John R. Gustafson: Yes. William J. Brennan, Jr.: --underwear was first put in the evidence closet, wasn't it? John R. Gustafson: That's correct. Sandra Day O'Connor: Why didn't the State test the swab with the P-30 test? John R. Gustafson: Either the police criminalist... it doesn't appear in the record. Either he was not asked to do so, or in his opinion the sample was just too small to get a result from that test. Now, the... at the second trial, although this was all in question at the first trial... at the second trial, the Respondent used the former trial testimony of his expert. They didn't do any retesting or any testing at all of the evidence. It's the State's position that in a situation like this, we have to look at, as this Court did in California v. Trombetta, to two focus points as to the constitutional standard of materiality. First is whether or not the evidence had exculpatory value that was apparent before it was destroyed; and two, whether or not the defendant had a comparable means, a reasonably available alternative. Now, in the instant case, the apparent value of that evidence is contingent upon technology, the existence of the technology. In essence, the claim that the Respondent made to the jury was that the material gathered was exculpatory because something would not be found within it. What would be apparently exculpatory is the absence of something. In other words, they have to first analyze the substance and then, second, if they get an inclusive result, they have to use another test, which they didn't have at the time... was to determine whether-- William H. Rehnquist: Which test was it that they didn't have at the time? John R. Gustafson: --They didn't have... there's three types of tests that they could quantify. They did not have the P-30 test, which measures a constituent of semen, which gives an estimate as to the quantity of semen. They did not use the acid phosphatase test, which is another measure of the quantity of-- William H. Rehnquist: Okay. But now the acid test they had, but didn't use? John R. Gustafson: --They did not have it. William H. Rehnquist: And the P-30 test they didn't have. John R. Gustafson: That's correct. William H. Rehnquist: Now, when you say they didn't have, what do you mean? That the Tucson Police Department... Pima County Police Department didn't employ that sort of test? John R. Gustafson: That's correct. That's what the police criminalist said they were... his words were: "they were not in practice in our lab. " That's what he stated. Sandra Day O'Connor: Well, Mr. Gustafson, I take it the State, the prosecution, did not offer any of this scientific analysis evidence in trial... at trial. The State just went to trial with the eye witness identification and the testimony of the victim and the physical clothing. John R. Gustafson: They went... they didn't have the test... it was all admitted... the State's... what the State had done with the evidence, the test results and what the defense criminalist-- Sandra Day O'Connor: I thought the State hadn't taken tests and so that wasn't part of the evidence. John R. Gustafson: --They had taken some tests. They had looked on the swab. They had done a ABO blood type. They looked under the microscope. On the underwear, they had later done the P-30 and ABO on that. Sandra Day O'Connor: But they couldn't-- John R. Gustafson: They couldn't-- Sandra Day O'Connor: --get a test result. So, no test results were offered. Is that right? John R. Gustafson: --Yes. Sandra Day O'Connor: It's hard for me to understand, frankly. We're talking about the guilt phase of the trial. Was the clothing introduced? John R. Gustafson: Yes. Speaker: For what purpose? John R. Gustafson: To... it was going to be introduced by either the State or the defendant. I guess the State drew the sting by introducing-- Speaker: Pardon me? John R. Gustafson: --The State basically drew the sting of the attack upon this State's testing of it. The defense was going to raise this issue. So, these items were brought in. They were marked as exhibits. They were shown to the jury, and they were testified to about. Now, no incriminating evidence was gathered from them. Byron R. White: All right. Or from the semen or from the swab. John R. Gustafson: Or from the swab. William J. Brennan, Jr.: Was there any objection? You said the defense was going to offer these in any event? John R. Gustafson: There's two trials in this case. So, the one that resulted in conviction was the second trial. So, the State introduced these-- William J. Brennan, Jr.: Was there objection to the introduction of that evidence at the second trial? John R. Gustafson: --No. William J. Brennan, Jr.: Not to any of it? John R. Gustafson: That's correct. No objections to any of it. John Paul Stevens: Mr. Gustafson, can I ask you a question because it's kind of hard to piece all these tests together? But am I... just see... am I correct in saying two things? One, that if they had preformed the test that showed that the semen samples were the product of a person who was a nonsecretor, that would have been a complete defense for the defendant. John R. Gustafson: Yes. John Paul Stevens: And secondly, what I want to know is did you at the time you had these samples and before the second trial, have tests available that could have been performed to determine that? John R. Gustafson: Between the first and the second trial? John Paul Stevens: No. At any time before the second trial, could you have performed tests which would have determined whether or not the donor was a nonsecretor? John R. Gustafson: Yes, Justice O'Connor-- John Paul Stevens: Yes, it could have done that. And then the case boils down to whether you had any obligation to do that. John R. Gustafson: --Yes. Anthony M. Kennedy: Yes. Well, does the record indicate that those tests would have achieved a valid result if there was enough of a sample to make a conclusion? John R. Gustafson: They would have... it wouldn't be conclusive was the expert's testimony. They could make an estimate based upon the different constituents. Anthony M. Kennedy: And the thing that was being estimated was whether or not there was a sufficient quantity to go ahead and make the test for the blood group? John R. Gustafson: Yes. Byron R. White: Well, what test could you have performed before the second trial that you were referring to Justice Stevens? John R. Gustafson: It's because there's... there were two samples. Byron R. White: What tests could you have performed? John R. Gustafson: The P-30. Byron R. White: On whom? On what? John R. Gustafson: On the sexual assault kit. Byron R. White: I know, but you would have been performing a test on the swab? John R. Gustafson: Yes. Byron R. White: To do what? To determine whether? John R. Gustafson: If there was sufficient quantity of semen present, to then later use an ABO blood type test. Byron R. White: But you would have had to go and have a blood type test. John R. Gustafson: Yes. They had already obtained that and got an inclusive result. The ABO blood type test in the case simply showed no blood type. William H. Rehnquist: I'm confused by your answers to Justice Stevens and Justice Kennedy and Justice White. And it may well not be your fault. At one time you said that the Pima County criminologist said that the P-30 was not in practice in Pima County. John R. Gustafson: That's correct. William H. Rehnquist: But now I thought you answered Justice Stevens that the State could have performed a P-30 test before the second trial. John R. Gustafson: Yes. William H. Rehnquist: Well, how do you reconcile those two answers? John R. Gustafson: They didn't have them... the P-30 test at the time of the first trial. After the first trial, they did the P-30 test. They then... when they get the P-30 test, they test the clothing. They don't test the sexual assault kit with the P-30 test. Then we have the second trial. That's what happened. So, in other words, when I'm asked is there a test that they had that they didn't do, the answer is yes. They had the P-30 that they didn't do on the sexual assault kit. William H. Rehnquist: Why did the State not do it? John R. Gustafson: It was either the police criminalist didn't think there was enough sample there... and he did testify that be didn't think that there was enough there... or that be could go back and try, but it was a very small sample. William H. Rehnquist: So, he rendered his opinion that it would not have been useful in producing evidence. John R. Gustafson: Yes. John Paul Stevens: But as far as that's concerned, even at the time of the second trial, it still was not too late to do the P-30 on the swab. It was too late to do it on the clothing, but it was still not too late to do it on the swab, was it? John R. Gustafson: That's-- John Paul Stevens: The defendant could have done that himself-- John R. Gustafson: --Yes. Speaker: --at that point. John R. Gustafson: Yes. Antonin Scalia: And there was testimony in the trial that said it could still be done on the swab. John R. Gustafson: Yes. The point I think I'd like to make here is that the Respondent did have alternative means by which he could establish this, and that he did not use the tests basically because he had to make a tactical choice about the reasonable doubt argument. His reasonable doubt argument is there is either not enough of the sample there or the true assailant was a nonsecretor and yes, I'm exonerated. If he had used the test, he may very well have found out, as it was indicated, that the samples were too small to be tested. That's the case. And his reasonable doubt argument to the jury' was eliminated. Speaker: The odds are about four to one against, aren't they? John R. Gustafson: I don't-- John Paul Stevens: Isn't it true that only about 20 percent of the population are nonsecretors? John R. Gustafson: --That's 20 to 25 percent. That's correct. John Paul Stevens: So, if you had a... I mean, so the odds would be about four to one that you'd get... that the reason for the no blood type showing up is that the sample was too small. And he elected not to take that chance because he wanted to make his reasonable doubt argument. But why wouldn't the State go ahead and do it anyway because presumably they're interested in knowing the truth? John R. Gustafson: They did as to one... they used the test that they had on the sexual assault kit, and they neglected the underwear. John Paul Stevens: But even by the time you get to the second trial, I would think the State would have an interest in finding the answer to that question. John R. Gustafson: Yes. Sandra Day O'Connor: Whose case do you think it hurt by virtue of the fact that the State failed to do some of its homework, so to speak? Did it hurt the State's case? John R. Gustafson: It hurts the State's case, yes. Sandra Day O'Connor: And the instruction to the jury told them they could use the State's failure against the State? John R. Gustafson: Yes, and they could-- Sandra Day O'Connor: And yet they came in with a verdict of guilty. John R. Gustafson: --That's correct. William H. Rehnquist: Unhum. And you say the defendant was able to perform this P-30 test if he had so desired. John R. Gustafson: Yes. Byron R. White: And if they had read the police reports, they would have known the clothing and the swab were in existence. John R. Gustafson: And I'm not sure at what time that that happens because it's not in-- Byron R. White: Well, I know, but the reports are available to them. John R. Gustafson: --Yes. Byron R. White: And if they had read it, as they could have, they would have known about the swab and the clothing. John R. Gustafson: Yes. Sandra Day O'Connor: Well, I guess they also knew about it because of the first trial-- John R. Gustafson: Yes. Sandra Day O'Connor: --don't you suppose? Were they offered in evidence at the first trial? John R. Gustafson: They were... the... yes. They were discussed in evidence. The clothing wasn't actually admitted into evidence. Sandra Day O'Connor: So, there was no question, but that at the time of the second trial they fully understood-- John R. Gustafson: Yes. Sandra Day O'Connor: --what the State's evidence consisted of. John R. Gustafson: Yes. And at the time of the first trial, the expert was speculating about the clothing, and it was brought out that the police did... had obtained the underwear. The Arizona rule created here... and it's on page 24 of the State's brief... states: "that when identity is in issue at trial and police permit the destruction of evidence that could eliminate a defendant as the perpetrator, such loss is material to the defense and is a denial of due process. " "Dismissal is the appropriate remedy unless the evidence is so strong that a court can say beyond a reasonable doubt that the destroyed evidence would not have proved exonerating. " Now, what the court did in applying this test that dismissal is the remedy unless the evidence would not have proved exonerating is simply to determine for itself whether or not the jury has properly reached its verdict. Since the evidence wasn't in existence and it was speculation about what it was, the Arizona Court of Appeals decided to determine whether or not into the nature of these tests... are that exonerating... some of them... is that they simply examined de novo the jury's verdict on the other items of evidence, the description, the identity. Then, having done that, the court simply was not convinced by itself that the Respondent was not guilty beyond a reasonable doubt, but that was precisely the function of the trial jury in this case. Byron R. White: What if the test the State could have performed, if it came out one way, would have completely exonerated the defendant? And the State just didn't... and the State knew that, and it thought without the test it could convict anyway. So, it just didn't perform the test. Now, that is... that is... that would be questionable under Trombetta, wouldn't it? John R. Gustafson: I don't think it is questionable under Trombetta because I don't think that there is an obligation for the State to test. What's at issue is a right to access the evidence on behalf of the defense... the defendant. In other words, the police cannot destroy it. I don't think that the police are under an obligation to test it. Byron R. White: So, suppose the police has this item which, if it tested one way would exonerate, and it tells the defendant, look, we have this item. We haven't tested it, but we'll tell you that if it comes out one way, you're exonerated; if it comes out the other, you're really... you're really... it will help prove you guilty. And the defendant doesn't test it either. John R. Gustafson: I think there is no due process violation. John Paul Stevens: Mr. Gustafson, this wasn't such a case. This wouldn't have added to your proof of guilt even if it hadn't helped the defendant. It was kind of a one-way street, wasn't it? It would either exonerate or be neutral. John R. Gustafson: Yes. There's different samples involved, but the quick answer is yes. The-- Anthony M. Kennedy: xxx that doesn't change anything? John R. Gustafson: --And if I... if there are no further questions and if I may, I would like to reserve my remaining time for rebuttal. Byron R. White: But if... but if the... but the tests... if the defendant had done it... had run these tests, it might have... if it came out one way, it would have destroyed his reasonable doubt argument. John R. Gustafson: Yes. John Paul Stevens: Which, in effect, enhances the State's case. John R. Gustafson: His reasonable doubt argument? Byron R. White: Yes. You said a while ago it was a tactical choice for him not to test. John R. Gustafson: Yes. William H. Rehnquist: Thank you, Mr. Gustafson. Now, Mr. Davis, we'll hear now from you. Daniel F. Davis: Mr. Chief Justice, may it please the Court: The Court of Appeals did not tell the State of Arizona that they needed to preserve or to test this evidence because nobody had to tell the police of the need to preserve and test this evidence. They knew that if that clothing had been placed in the refrigerator, in accordance with the normal practice of the Tucson Police Department investigating an ordinary sexual assault, that the defense could then test that evidence, and it would be available to them. The defense did not make the tactical decision not to test that clothing. The tactical decision was made for them when the police failed to follow their ordinary routine procedures in preserving that evidence for later testing. Antonin Scalia: You made the tactical decision not to test the swab. John R. Gustafson: No, sir. Test... yes, sir. We did, in fact. Testing the swab under... for the P-30 protein would be a meaningless exercise even today. The police criminalist, Edward Heller, testified that in only about 10 percent of the cases do these rectal swabs ever contain any semen at all. In addition, he had already tested it once by a destructive test to determine the presence or absence of blood markers, ABO specifically, which of the four major blood groups the semen donor belonged to. When questioned about doing further testing, he said, "I suppose it would be possible. " "I don't know. " But if we were to test it today, suppose that today we performed the destructive P-30 protein test and found that on the swab today there is an adequate amount to test. That does not tell us that the amount removed from the swab and tested in the first place was adequate or not. It would tell us that we can no longer perform any further testing because we have elected to do the P-30 protein test and have thereby destroyed the evidence. Had the defense made the tactical decision to perform that test and destroyed that last bit of semen, I would expect that we would be hearing today that it is the defense's fault that the evidence was not preserved. Sandra Day O'Connor: Well, in any event, when did the defense know that the victim's clothing had been obtained by the police and that a swab had been taken? Daniel F. Davis: I don't know the precise date, Your Honor, and I was not trial counsel. However, I do know that it was after December 10, 1983. Mr. Youngblood was arrested December 10, 1983, six weeks to the day after the assault occurred. Mr. Inman testified as a criminalist for the defense and talked about the deterioration of these markers. Sandra Day O'Connor: The defense knew quite early on that these items existed and presumably could have made a demand to have them tested. Daniel F. Davis: On December 10, such a request would have been meaningless. They knew of them at that time, but because these are organic elements, they break down in a matter of two or three weeks. Sandra Day O'Connor: Well, the swab had been refrigerated. Daniel F. Davis: I agree, Your Honor. Sandra Day O'Connor: So, it wasn't meaningless as to that. And it wasn't meaningless for all purposes with regard to the clothing. Daniel F. Davis: Your Honor, with regard to the swab, the testing... we could continue to do testing today, but it is most unlikely that anything would develop from the swab. It is merely the size of a Q-tip. It has already been subjected to some testing. But I agree today that it may be a viable product for testing, but it is most unlikely that there is anything in there worthy of testing. Sandra Day O'Connor: But certainly an objection was made and an argument to the jury that it was... the State should have done this testing, and that there was a reasonable doubt because it wasn't done. Right? So, that worked to the advantage of the defendant. Daniel F. Davis: That's correct. Sandra Day O'Connor: Okay. Daniel F. Davis: Now, as to the clothing which both criminalists agree contains the better semen sample, the larger sample, the better preserved sample, that... testing of that was impossible as of December 10. The ABO blood markers deteriorate over roughly the same period of time as the PGM blood markers which deteriorate over a two or three week period if not refrigerated. If refrigerated, they can maintain their viability potentially for years. The P-30 molecule deteriorates at approximately the same rate of deterioration as both the ABO and PGM markers. Hence, when you test for the P-30 molecule and find very little of it, you can also conclude that you're not likely to find much of the ABO or PGM markers. But the last test that has been mentioned is the acid phosphatase test. That tests for the presence of a much more durable component of semen, but a component which does not provide any way of distinguishing between various semen donors. We could do the test today, but it would tend to prove no fact that's in dispute today. William H. Rehnquist: Is it your complaint, constitutional complaint, that the State failed to test something at a time when it could have been tested, and by the time you found out that that sort of thing existed it was too late to test it? Daniel F. Davis: That is part of our complaint, yes, sir. William H. Rehnquist: What's the other part of your complaint? Daniel F. Davis: That they failed to preserve it so that we could perform the tests. For instance, in California v. Trombetta, the evidence was tested immediately, the breath, and then disposed of. But the results of that test then became the evidence. The semen in this case was not evidence in and of itself, but the results of testing on the semen would be evidence. Had the semen been reliably tested early on, we would have no complaint about its destruction if the reliable test results were available. But because they chose not to do the test, then we insist they must not make that choice for us, but rather merely place the clothing in the refrigerators, as they ordinarily do, so that we can make the decision as to whether to test that clothing or not. Sandra Day O'Connor: What tests do we employ? It seems to me this really isn't as much like Trombetta as it is like just lost evidence. Daniel F. Davis: Well-- Sandra Day O'Connor: The State didn't offer, as in Trombetta, the results of some scientific testing that the defendant then couldn't rebut. Here the State simply failed to preserve, in the fashion that might have been better, a piece of the evidence, but didn't offer any scientific tests as a result because it couldn't do them either. So, it's more like lost evidence, isn't it? And don't we then have to look at the bad faith, if any, of the State? Daniel F. Davis: --No, Your Honor, with that I take some exception. If we were to allow the government to simply destroy evidence that came into their hands and then require that we show bad faith on their part, we would essentially-- William H. Rehnquist: What case do you rely on for the proposition you're now stating? Daniel F. Davis: --Well, in the first place-- William H. Rehnquist: Because Trombetta certainly doesn't support you because it does talk about good faith. What case do you rely upon for the proposition you just stated? Daniel F. Davis: --Well, in the first instance, I think that... in the first place, I think that looking at cases like Valenzuela-Bernal indicate that what we are primarily concerned with is the content or the evidence, whichever way it falls. William H. Rehnquist: But, Valenzuela-Bernal doesn't come close to supporting you. That was where the government deported a couple of witnesses. Daniel F. Davis: They made the conscious decision to dispose of that evidence after determining that the evidence had no probative value for either side, and the defense could not counter that argument. William H. Rehnquist: Now, what case is a holding in your favor on this point? Daniel F. Davis: Well, if... I think that Brady and Agurs and that line of cases. William H. Rehnquist: Well, but they aren't... you don't seriously mean that those are holdings in your favor on this point, do you? Daniel F. Davis: They're not squarely on point. William H. Rehnquist: Well, of course, they're not. So, what case is it that you rely on? Daniel F. Davis: Well, if I may, Your Honor. If we must prove bad faith in the government's conduct in failing to preserve evidence, that is a way around Brady and Agurs because rather than merely not disclosing the evidence, they simply choose to allow it to deteriorate, and in that way they avoid the sanctions of Agurs and Brady and the opportunity of the defense... to present his own defense. Byron R. White: When did you first have the opportunity to know that there was a swab and that there were clothing? Daniel F. Davis: Again, since I did not try the case, I don't know the precise date. Byron R. White: Well-- Daniel F. Davis: It would have to be-- Byron R. White: --Do you... do you at least by the time of the first trial? Daniel F. Davis: --Certainly. Byron R. White: They knew that? And the tests could have been performed then by the defense. Daniel F. Davis: No, Your Honor. By that time the tests would have been impossible. The clothing-- Byron R. White: But if the... do you contest the notion that the clothing and the swab are mentioned in the police reports? Daniel F. Davis: --I assume that they were, and I would assume-- Byron R. White: Well, if they were and they were available to the defendant. Daniel F. Davis: --I will assume that they were. Byron R. White: And if they read them, they knew about the clothing and the swab at a time when tests would be all right. Daniel F. Davis: No, sir. That is where I-- Byron R. White: Why wouldn't that be the case? Daniel F. Davis: --Because the arrest occurred six weeks after the samples were taken. The deterioration of the samples would have occurred in the first two or three weeks following the gathering of the evidence because it was not refrigerated. By the time Mr. Youngblood was arrested, the clothing samples had deteriorated beyond forensic usefulness, and there was nothing left to test on the clothing that could in any way address any of the disputed issues in the case. And that is precisely why-- Antonin Scalia: You had a shot at doing the P-30 sample on the swab. Daniel F. Davis: --Yes, sir. Antonin Scalia: And you didn't even take that shot. Daniel F. Davis: No, sir. Antonin Scalia: So, one really wonders how... you know, how sincere you are about using this evidence as opposed to really using it as an argument to the jury, which is how you did use it. Daniel F. Davis: Well, sir-- Antonin Scalia: You tell us that there wasn't much chance that you'd get anything from the swab, but there was some chance-- Daniel F. Davis: --That's correct. Antonin Scalia: --and you didn't take it? Daniel F. Davis: In order to get anything out of the swab, we would have to test it by some means other than by a P-30 analysis. And the reason for that is because if we knew the amount of P-30 protein on that... the swab today, it would still not tell us anything about the test that was conducted on a portion of that swab years ago because it would not tell us whether an adequate sample had been tested then. And that is really the crucial issue is whether they tested an adequate sample from the swab. Again, when I talk about a remote likelihood-- William H. Rehnquist: Why is that the crucial issue as to whether they tested enough from the swab? Daniel F. Davis: --Well, because the only tests that we have that we can look to are the ones that were performed for the blood markers, for instance, on the swab. And he says I performed a test on some unknown amount of semen at a certain point in time and found that either I didn't test enough or that the assailant was a nonsecretor. To know how much remains on the swab doesn't tell us how much was tested in that first test to help point us in one direction or the other. William H. Rehnquist: But now, this is not evidence that the State used... introduced at trial to incriminate the defendant. Daniel F. Davis: No. Byron R. White: It wasn't incriminating. Daniel F. Davis: No, it was not. Antonin Scalia: Why can't you retest? Is it clear that there is not enough left on the swab to retest? Never mind looking to see if the original test was valid or not. Daniel F. Davis: That was the opinion of the State's criminalist was that there was not enough to retest. Antonin Scalia: I thought he said that a test could be done on the swab. Daniel F. Davis: He said he could go back and retest it-- Antonin Scalia: Yes. Daniel F. Davis: --but he didn't think that there was enough there. Antonin Scalia: He didn't think. Daniel F. Davis: That's right. Antonin Scalia: And that was enough to satisfy you. Daniel F. Davis: Well, it seemed to be enough to satisfy the State. I've not seen anything in the record-- Antonin Scalia: The State didn't have a client they were trying to get off. They thought they had enough evidence to convict your client. You were looking for evidence to acquit him. But just on that statement that he didn't think there was enough, you said, well, there must not be enough and chose not to go back and do any tests on the swab. I can't imagine that. Daniel F. Davis: --But the situation that we're in, we're doing destructive testing. If we'd performed these tests on the swab... if we perform a P-30 analysis on the swab, all that it tells us is that there was enough left on the swab. It does not tell us anything about the guilt or innocence of any person. Antonin Scalia: I don't understand that. It could... if there was enough to do proper testing, it could have shown that your client was not the culprit, couldn't it, if there was enough to do a proper test? Daniel F. Davis: If there was in the amount that had been tested, that's correct. Antonin Scalia: Not in the amount that had been tested. If there's enough left now. Daniel F. Davis: Perhaps... I'm obviously not making myself understood. Perhaps... let's assume that there were 100 units of some measurement of semen on the swab originally. Antonin Scalia: Right. Daniel F. Davis: The first test is conducted. It is to determine the blood markers. Speaker: Right. Daniel F. Davis: And let us assume that they used 20 of these units to perform that test. And they then don't know whether it is an insufficient sample or whether he is a nonsecretor. But we don't know... it was never quantified in the first place. We never knew we had this 100 units. We're doing this hypothetically. I now go back and retest that swab and discover that there are 80 units left. I have now destroyed the ability to test that swab any further, and all it has told me was that if I had not performed this test, that if I had gone back and performed some other test, I might have been able to identify the assailant. Antonin Scalia: I don't understand that. I thought you could go back and not just determine that there are 80 units left, but test those 80 units right then and there. Daniel F. Davis: You test... it depends on the test you're using. Now, the P-30-- Antonin Scalia: The P-30. That's what I'm talking about. Daniel F. Davis: --will only tell you the amount that's there. It will not tell you anything about the assailant. The ABO test, which was the test that was in use at the time, would tell you information about the assailant and narrow him into one of the four basic blood groups or into the nonsecretor blood group. But those are mutually exclusive because they are destructive tests. Antonin Scalia: Why do you ever use the P-30 test in this instance if all it tells you that there is enough to conduct another test that means something? Daniel F. Davis: I'm not sure what it's function is. I don't know why they do it, and I know that... for instance, I suspect that where you have a case in which there is dispute about whether an assault occurred, but the identity is not in dispute, you may perform a test like a... the P-30 test to determine the presence or absence of semen. The other test, the acid phosphatase test, would not give you that information with regard to an ordinary rape situation. Anthony M. Kennedy: Was there testimony that it would be absolutely futile to go to the swab and attempt a test for blood groups? Daniel F. Davis: The only testimony was that he considered it highly unlikely, and that was the police criminalist who had custody of the swab and who had done the initial analysis. And as he indicated, particularly with regard to these sexual assaults... these rectal swabs... you will find... he said that only in about 10 percent of the cases do you find much... do you find any semen to test in a rectal swab precisely because most of the semen has drained out of the body and into the clothing. And so, they gathered the clothing and intended to put it in a refrigerator, but because of some error, they put it in a wooden locker instead. Byron R. White: Well, what if the police had not taken a swab at all? Daniel F. Davis: Well, then we would certainly have a different situation. Byron R. White: Well, yes. But the police could have taken the swab. They could have performed the right test, or they could have preserved it for you to make the tests. Do they have to take the swab? Daniel F. Davis: I would hope that-- Byron R. White: Do they have to take the swab? Is it their constitutional duty-- Daniel F. Davis: --My position is yes-- Speaker: --to gather that evidence? Daniel F. Davis: --that they have an obligation to make... to help... to act as-- Byron R. White: Your answer to my question apparently is yes. Daniel F. Davis: --Yes, sir. Byron R. White: Now, suppose the answer is no. Do you lose this case? Daniel F. Davis: No, sir, because this is a case-- Byron R. White: Because they gathered the evidence and let it fritter away. Daniel F. Davis: --Yes, sir, just as they gathered Broveck's confession in the Brady case and just as they gathered the information about Linda Agurs' victim in her case. This is not a case where we're telling them to do this. They have every incentive in the world to gather this evidence so that they can exclude innocent people from consideration and remain on the trail of the guilty party while the trail is fresh. Sandra Day O'Connor: Well, suppose it's a drunk driving case. And the policeman observes the driver and the erratic behavior and the slurred speech and the bleary eyes and smells whatever he smells, but doesn't take a breath-a-lyzer test. And the defendant says, well, I was a diabetic and that explains my behavior. Now, does the State in these cases have an obligation to take a breath-a-lyzer test? In your view, that would be a constitutional requirement. Daniel F. Davis: Or that he at least have some-- Sandra Day O'Connor: Yes? Daniel F. Davis: --No, ma'am. That he also has an opportunity to gather the sample. So, the police would not in that case. And that is where I would draw that distinction as in Trombetta where Trombetta has access to his own breath sample at a time when it could be preserved. But Mr. Youngblood had no opportunity whatsoever to gather the semen samples in this case. They either must be gathered by the police or they will never be gathered at all. And this evidence is so potentially conclusive that it is... that it is not surprising that the standard police procedure in Tucson, in Pima County and elsewhere-- Byron R. White: Is conclusively exonerating if it comes out one way. Daniel F. Davis: --Absolutely. Byron R. White: And how about the other way? If it comes out the other way, does it help the State? Daniel F. Davis: Oh, it certainly does. It certainly... the State can come in then and they can say, well, we have been able to conclusively establish that 80 percent of the potential semen donors out there could not have done it. It just so happens, though, that the physical description of this defendant matches the description given by the victim and, furthermore, that he is still in that small 20 percent or even narrower category of people who could have committed the crime. Byron R. White: So, it isn't conclusive for the State. Daniel F. Davis: It is today, not with the technology available then. But today, they can narrow it down with these genetic tests to a single person, and the only person who would profit from the loss then is the criminal who committed the crime. Anthony M. Kennedy: Well, but we're talking about the time of trial. At the time-- Daniel F. Davis: I agree. Anthony M. Kennedy: --of the trial, Youngblood was within that 80 percent of the population that is a secretor. Daniel F. Davis: That's correct. He is a type A secretor. And given that, it's... it is of tremendous benefit to the State and it works both ways for the State. It helps them investigate the offense because it keeps them from being brought off the trail with false leads. It helps them to bolster their case when they finally have brought an individual to court by saying we have excluded all of these-- William H. Rehnquist: How broad is this duty? Is the Constitution going to tell prosecutors how they ought to investigate cases? Daniel F. Davis: --No, Your Honor. And this court didn't tell them how to investigate. They knew how material and important this evidence was at the outset, and they intended to gather this evidence precisely for the purpose that we intend to use it for, to prove the innocence of the innocent. William H. Rehnquist: But didn't perform the tests in time to have them relevant. Daniel F. Davis: That's correct. William H. Rehnquist: And you say the Constitution says that conviction must be reversed even though there is no showing of bad faith. Daniel F. Davis: Bad faith, I would submit, is not at issue. We're looking at the right of the accused to defend himself. And what I would look to-- William H. Rehnquist: But we have never held the right of the accused to defend himself extends as far as you're asking us to extend it, to simply having the police preserve every bit of evidence they ever come across in the investigation that might be relevant. Daniel F. Davis: --I'm sorry if I've misled the Court in that way. I don't claim that they should reverse simply because every piece of evidence has not been preserved. And, in fact, I'm not claiming that they should reverse in every case in which semen samples are not preserved. In this case, before the Court of Appeals would entertain our request to reverse the conviction and order a dismissal, we were required to make a strong showing of prejudice. We had to show that that evidence could have helped us. In fact, the first Arizona case that held as a matter of law that the police must preserve semen samples refused to reverse the conviction for precisely the reason that they said there is no harm here. The evidence of guilt is overwhelming. Byron R. White: So, what... so, what's your standard? What did the court below say? Might have? Would have? Daniel F. Davis: No, sir. The court below first said that we must-- Byron R. White: Yes. Daniel F. Davis: --make a strong showing of prejudice-- Byron R. White: Well, they ruled for you. Daniel F. Davis: --Because we made that strong showing of prejudice. Byron R. White: Yes. Well, what do you mean by strong showing? Daniel F. Davis: They required that we first show that there is a genuine issue of misidentification and that this evidence could have in all likelihood-- Byron R. White: Could have in all likelihood. Daniel F. Davis: --provided-- Byron R. White: You mean if it came out one way, it would have helped you get off. Daniel F. Davis: --It would have absolutely. He would never even had to stand trial most likely. Byron R. White: Well, what are the chances of it being prejudicial... I mean, of it being helpful to you? Daniel F. Davis: Well, first of all-- Antonin Scalia: xxx to the other argument, as the jury saw it, not very good. Daniel F. Davis: --Well, there's the-- Antonin Scalia: I mean, that's all we can guess by, the other evidence that we have. And the jury found that beyond a reasonable doubt the test, had it been done, would have shown that your client was the culprit. Daniel F. Davis: --The other testimony, the other evidence at trial consisted solely of the testimony of the victim. At the first trial, we got a lot of information about what this victim had described at the time that the attack was vivid in his mind, that very night. He described a gray-haired man with a straight hairline who was wearing hard, plastic or leather shoes, driving a two-door automobile and who in almost every material component of that description was not Mr. Youngblood. Mr. Youngblood's hairline is different. He has never had gray hair. His automobile is a four-door. He despises the kind of music that was being played. He cannot put his feet in leather or plastic shoes because they are so callused. He always wears cloth shoes. And as you watch from the first trial to the second trial, the victim's testimony shifts, and he moves away from the initial description that he gave to the police and more toward a description focused toward Mr. Youngblood. The police told him at the time of Mr. Youngblood's arrest that they arrested the man who did it. They showed him a photo lineup six photos in it, and the victim picked two of the six as being his assailant. William H. Rehnquist: Well, surely you were entitled to impeach the victim at the second trial by showing... and the jury was entitled to credit or not credit as it chose. Daniel F. Davis: I agree. And not only is that important for the jury, but because... as this Court held in Bagley, what we are concerned about is our level of confidence in the jury's final holding. That's the reason why the Court of Appeals asked itself whether the evidence was so conclusive, so overwhelming that the loss of the semen sample is meaningless or that the loss of the semen sample could not have given anything to the defense of this case. John Paul Stevens: Mr. Davis, supposing the semen sample had been lost because there was a fire in the police station-- Daniel F. Davis: Again, that is why-- John Paul Stevens: --would it be a deprivation of due process still? Daniel F. Davis: --Yes, Your Honor, because it is a matter that the evidence is lost, good faith or bad faith. I would urge that a different test would apply if we could prove bad faith because I would hope that we would want to deter that. But even the innocent loss of that evidence has the same effect on the defendant as the most malicious loss of that evidence. It deprives him of his opportunity to vindicate his innocence. And because of the fact that the-- Anthony M. Kennedy: Well, if that's true, if a material witness dies, you're exonerated. You can't... certainly there must be a difference between negligence on the part of the police and the situation Justice Stevens poses in which the station just burns down. I assume that would be a logical line for us to draw between those two instances. Daniel F. Davis: --I think that the line is going to be drawn at a number of other points as well. The Court of Appeals did not hold... and I do not advocate a position... that the loss of evidence automatically results in any particular sanction. If the evidence is lost through inadvertence, that in and of itself is some evidence that perhaps that bit of data was not material or significant in any particular way because the police didn't bother to gather it, the defense didn't draw the police attention to it. And so, that would come into play there. But if the police are exercising reasonable care in following their procedures and the evidence is still lost, that is of small benefit to the accused who finds that he cannot put on his defense as a result of the loss of that evidence. And for those reasons, I would urge that good faith and bad faith not enter into the question at this stage, but that instead, unless... if the defense can prove bad faith, then I would say that that is a different case and it's not worthy of the same standard here. But when we have... when everybody intended to gather the evidence, intended to test the evidence and intended to preserve the evidence, and then simply failed to do so, we must look at the... our conviction in... regarding the fairness of the trial and our certainty that the outcome is a reliable one. And because those should be the guiding principles as far as fashioning the remedy, the courts should be given broad latitude in providing remedies ranging from absolutely nothing at all to jury instructions to instructions that certain facts must be presumed to the contrary of the position taken by the spoliator. And finally, in some cases, in order to preserve the integrity of the judicial process, after the court, as the Arizona Court of Appeals did, considered all other sanctions, the court may find that fairness and due process require a dismissal of the charges. That sanction should be available to the court. The Court of Appeals on the record before this Court reviewed those various options and made it very clear that they were aware of the range of potential sanctions and found that it is only because... that it is only a dismissal of the charges that can protect Mr. Youngblood's due process rights... did they order a dismissal of the charges. Thank you. William H. Rehnquist: Thank you, Mr. Davis. Mr. Gustafson, you have four minutes remaining. John R. Gustafson: This case isn't like Brady v. Maryland or United States v. Agurs. If I could make the broad analogy here. It's more like... at least as towards the underwear, it is more like a case that had really nothing like these facts, but it's like United States v. Lavasco, which is a pre-indictment delay case. This is where I'm looking for a constitutional analogy. In those cases, United States v. Lavasco, United States v. Marian, a defendant is basically claiming because of government inaction, delay basically, that inaction has resulted in my losing evidence. A witness has died or something has happened. As to his complaint about the underwear, it is this. By the time I was arrested, it was gone. Analytically it's the same thing. He's saying because of police inaction, it is gone by the time of arrest. Under that framework, in United States v. Lavasco or United States v. Marian, this Court looks to the prejudice to the defendant and government conduct, whether or not there was a tactical motive on the part of the police to get a tactical advantage over the defendant. Anthony M. Kennedy: Do you agree that on the state of this record, that after six weeks, the samples on the clothing had deteriorated so that a useful test could not be made? John R. Gustafson: No. There's so many different tests. There is at least one test that would have eliminated the reasonable doubt argument, which was the acid phosphatase test, which their expert said stayed stable over a period of years. And, he may... he probably has the best point that the identification test... the identification test, like the ABO, that would narrow down the population... may very well have been gone by the time he was arrested. But there is at least... he could have attempted to narrow down his argument, his argument about the reasonable doubt to the jury, by doing an acid phosphatase test. Byron R. White: xxx the only thing that can possibly happen to him in the test is that... is that it will eliminate his reasonable doubt argument. John R. Gustafson: What he... as to that one piece, but there were several pieces and he won't examine any of them. And that one evidence is-- Anthony M. Kennedy: Mr. Gustafson, do you agree that the P-30 test doesn't do anything except tell you how much-- John R. Gustafson: Yes. Antonin Scalia: --how much semen you have. John R. Gustafson: That's it. Antonin Scalia: It's a useless test, isn't it? John R. Gustafson: It is except it was of importance here. When there was no ABO blood group typing, then the claim is the real assailant is a nonsecretor. Otherwise it's not important. Now, the P-30 test can come in to tell you the additional information that the... if there was a large amount of semen present, then you do have a nonsecretor. If you have a low amount, you don't. That's how it comes into play. The characterization as to the underwear as the better sample was really speculation. It's based only upon the expert who never saw it. And there was evidence in the record, which I need not go into it. It was just basically that the victim washed up and that the victim then put his clothes back on shortly after the crime and was taken in a quick manner to the hospital. So, what was or was not on the underwear, without examining it, was pure speculation. Byron R. White: Well, I suppose when the tests... when the evidence was gathered, they had no suspect. John R. Gustafson: That's correct. Byron R. White: And so, they may or may not ever have had a suspect. John R. Gustafson: That's correct. Byron R. White: So, I guess the claim is that the State must preserve this... the clothing and the swab for as long as the case is open. John R. Gustafson: Yes. William H. Rehnquist: Thank you, Mr. Gustafson. The case is submitted.

Earl Warren: Mr. Dorn, you may continue. Albert A. Dorn: If it pleases the Court. Before lunch, I indicated to the Court the theory under which the case was tried in the trial court. That the theory, the factual -- at least supposition was that all of these checks, and by the way, I think we had possibly 8 or 9 or 10 other checks involved in separate forgery counts, that all of the checks were signed in a representative capacity but that the trial court clearly indicated as shown by the record that the trial court considered that nevertheless, if there was no authority either oral or written, that that constituted forgery under the appropriate section of the code. In the arguments to the jury, the question was always considered in the light that the checks were signed in a representative capacity. John M. Harlan II: Are the arguments to the jury -- were they transcribed? Albert A. Dorn: Yes, they were. John M. Harlan II: Are they into this Court? Albert A. Dorn: They're not before this Court. Earl Warren: Are they available? Albert A. Dorn: Yes. I believe they're in the record, however, in the transcript. Earl Warren: The -- the complete record is here. Albert A. Dorn: Yes, it is. Earl Warren: Are they in there? Albert A. Dorn: Yes Your, Honor. Earl Warren: Very well. Albert A. Dorn: These two checks which were involved now before this Court, were actually considered by both counsel trying the case as the least important of all counts because at the time this case was tried, well, shortly prior to that time, the Government had possession of the power of attorney which is defendants Exhibit M. This power of attorney, along with many other powers of attorney together with what the Circuit Court of Appeals in its decision, characterizes as thousands of documents were seized and characterized by the Circuit Court as illegally seized from the defendant based upon the -- a complaint issued on one of the checks which is now before this Court so that the Government had the power of attorney in its possession for quite some time. There was never any contention that the power of attorney itself was forged or illegally procured or anything else of that nature. The power of attorney was simply admitted in evidence at that time and not too much attention was paid to it. The question of these two counts, I'm sure, were intermingled with the evidence on 33 other counts involving difficult factual questions, involving complicated tax returns. And these two counts, as indicated by the record, the testimony is very brief. Some question, I think is made by counsel as to whether the answer of the Bartfield's was equivocal or not. Actually, he says that he did sign the power of attorney. He said the signature of his wife looked like her signature. She says it appears to be her signature. And there's nothing more ever said about it. Insofar as the appearance of the endorsement of the check itself, although in the trial court and Circuit Court of Appeals, it was considered without question that the checks on their face indicated they were signed in a representative capacity. Although that was without question, nevertheless, I think the most that can be said about it in this Court is that from the Government's standpoint, it presented a jury question and I think the jury at least were entitled to decide whether these checks were signed in a representative capacity or not. I think as pointed out that it was not on the face of the check and on the back of the check at least to present that question of fact which should have been given to the jury. And I submit to this Court that because of the instructions of the court and the refusal of the court to give the defendants free instructions which were refused. The jury could not decide that question because it would -- could never be presented to the jury on that basis. I submit to the Court that I think the common law is clear as to what forgery actually means. I think it seems apparent in this case that there was no palming off of the signature of the payee by the defendant. As a matter of fact, I think the record will clearly indicate that not only we didn't concede the signatures. We said those signatures all written all of the checks. There was never any issue made about it. The defendants signed all those names. You see on the other checks and those checks all in the record, they are in -- they're in evidence and they are in the exhibit file. All of those checks show the same pattern. They were signed by the -- the payee, defendants signed their names by himself, trustee. All of these checks went into the same place. They went into the defendants trustee account. There is evidence in this record as to what was done with all of these checks. As to what happened, I think the question was asked here, as to what happened with the funds in these particular two checks. The only evidence which is in the record is that these funds went into this -- into this trustee account which was to be -- be dispersed in the regular course of his business. The evidence does not disclose whether those funds were ever dispersed to the payees or not. But nevertheless, there was no claim ever made in the trial court that those funds were handled improperly by the defendant. There was never any -- there was no evidence that the payees ever made any claim to anybody at anytime that the funds were used improperly or improperly dispersed. There was never any claim made that a second claim was made to the Government by the payees for payment on these checks. There was no claim ever made that the payees never received any of their -- the proceeds of these checks. I think if the record is examined as to the defendant's explanation of how these checks were handled and the funds dispersed, they're all done in the usual course of his practice in business. And there was never any claim that was anything proper about it. There was never any claim in the trial court. There was never any argument concerning this -- these particular counts. All that was before the trial court insofar as these two counts are concerned are simply the two checks which were quickly put in evidence, quickly stipulated that the payees did not sign them, that the defendants signed them as it signed all the other checks. So that the checks, in our view, never gave nor in -- were intended to give the appearance of containing the actual signature of -- of the payees. I think it's apparent from the whole case itself that was never the intention. And therefore, cannot fall within the classical confines of forgery. Counsel had cited various cases but I think I can state to the Court, there isn't, in my view, one case that I know of which says that a case of this nature is forgery under the statute such as its involved here as counsel has pointed out. England had amended its statute to specifically put into their statute the words without authority. Now, I think it ought to be pointed out. There were two types of endorsements which are possible if a man has authority. He may either -- if he has authority, he may either -- either sign the payees name with nothing more. Now, if he has authority, that is not a forged endorsement and that authority can either be oral or written. If he has no authority, then that is clearly a forgery that we don't question about it. But where a man signs, endorses a check with the payees name, and some place on that check, it is indicated that he's not attempting to palm off the signature of the payee as the signature of the payee but indicates that he is signing the representative capacity classically in all the cases we've been able to find, it clearly indicates the forgery statute doesn't encompass that kind of a situation. The most that can be said -- the most that can be said is that, that person signing that check in that fashion, is indicating to the world that he signed the payees name, not that the payee signed it, but he signed it, but that, he then puts the person unnoticed as to his authority. And I think Justice Stewart raised the question as to what the bank's attitude would be in that kind of a situation. The bank's attitude in that type of a situation when it receives a check which it understands is side in a rep -- representative capacity, then it is -- they must then satisfy themselves as to the authority of the person signing that check because if they are wrong, if the authority doesn't exist, then they would be liable to the next endorsement on that check. They would've guaranteed all the previous endorsements. But I submit to the Court classically, and it is not the law that such an endorsement constitutes a forged instrument. If any legislature accuses to include within their definition of forgery, a forgery without authority, that, I submit to this Court, would have to be a matter of legislature action and not of judicial interpretation. Earl Warren: Mr. Dorn, I -- I should know from your argument but you said there were about 8 or 10 checks all told, didn't you? Albert A. Dorn: Yes, Your Honor. Earl Warren: And some -- and that the others -- those other than these two saved by trustee? Albert A. Dorn: Yes, Your Honor. Earl Warren: They did. These are the only two who didn't? And -- Albert A. Dorn: Yes. Earl Warren: -- they -- and all ten of them, if there were ten, were treated alike in the argument that -- of the case same under the instructions? Albert A. Dorn: Yes, Your Honor. Earl Warren: Very well.

Warren E. Burger: We'll hear arguments next in United States against Rylander. Mr. Wallace, I think you may proceed whenever you're ready. Lawrence G. Wallace: Thank you, Mr. Chief Justice, and may it please the Court: This case is here on the Government's petition from the Court of Appeals' reversal of a judgment holding the respondent in civil contempt for noncompliance with an order enforcing Internal Revenue summonses. A motion to expand the issues beyond those raised in the Government's petition was denied by this Court. Briefly, what occurred here was a summons was issued as part of an investigation of respondent's tax liabilities for the years 1973 through '77. The summons called upon him as president of two real estate corporations to produce the books and records of those corporations, as well as to testify. When he failed to comply, the usual petition for enforcement of the summons was filed within a... a supporting affidavit by the Internal Revenue agent, and a show cause order was issued for the summons enforcement proceeding. There were some evasions of efforts to serve the order. Those are for the most part more relative to the criminal contempt proceeding rather than the civil contempt proceeding now before the Court, although they could have a bearing on the respondent's credibility when he did appear. Eventually he was served and directed to appear at an enforcement hearing held about one year after the summons had been issued, and he was also asked to respond, to put into issue any issues that might be controverted. He neither appeared nor filed a response, nor did anyone else appear on behalf of the corporation, although he did prior to the hearing send a letter to the Deputy United States Marshall and to the Court in which he claimed he was not the president of the corporations and had been improperly served. Because the Government therefore anticipated that he might put that issue into contest into the summons enforcement proceeding, it did come prepared to make proof that the corporations had been duly chartered with him as a director and had not been dissolved and that he had acted in banking and business transactions on behalf of the corporations. This offer of proof was made in his absence, and an enforcement order was issued, and he was ordered to comply. And when he failed to produce the records upon meeting with the agent in pursuit of that, and after other difficulties in serving him again, eventually a show cause order for the contempt proceeding was served upon him after his arrest pursuant to a bench warrant; and the hearing was held some months later with the respondent in attendance. And at that time he again did not testify or present any evidence, was... the Government attempted to further bolster its case with some additional evidence, but that proved to be unsuccessful because the witnesses in one case pleaded the Fifth Amendment, in the other case had nothing of value to state. And the District Court held the respondent in contempt and then gave him an opportunity to purge himself, whereupon he offered a written statement entitled "Oath in Purgation of Contempt", but refused to testify or to be cross examined on the statement and did not produce any other evidence in response to the order. And the District Court found that he as president of the corporations had possession or control of the records and had not satisfied his burden to show that he could not comply with the summonses and failed to produce any evidence of the contempt proceeding. Now, while our position gained some strength from the belated nature of the respondent's submission of this oath in purgation, as I will explain for purposes of the civil contempt, our basic position would be the same if he had made precisely the same submission at the outset of the summons enforcement hearing. This Court has considered the showing that the Government is required to make in an Internal Revenue summons enforcement proceeding on a number of occasions. The basic case, United States v. Powell, is of course cited in the briefs. And if those cases mean anything they mean that when the Government made that showing, it is entitled to have its summons enforced unless... and the question in this case is what does that "unless" mean in the context of a summons seeking production of corporate records from an officer who would ordinarily be their custodian, have either possession or control over them. And in answering the question of what the "unless" means, we look to, and we think it's proper for the Court to look to, cases involving not only Internal Revenue summons but other forms of legal process such as grand jury subpoenas, congressional subpoenas, proceedings to direct a bankrupt to turn over his records to a trustee, et cetera. Because the issue is basically the same, and the principle that we draw from the case law is that when the Government has made its requisite showing, it has established a prima facie case that it's entitled to enforcement, that the order should be complied with, and that a burden of production then shifts to the respondent to introduce some evidence of why he should not comply. The burden of persuasion does not shift, but a burden of production shifts at that point because the Government is not required to anticipate and negate every possible defense. This is... this principle is explained perhaps most explicitly in an excerpt that we reproduce on page 24 of our brief from this Court's opinion in United States v. Fleischman, which happened to be a criminal contempt proceeding involving a congressional subpoena. But it explains that the rule being adopted is a rule affecting merely the time and manner of proof rather than a shift of the burden of persuasion, but it explains that the prosecution would be under a serious practical handicap if it must negate all possible defenses, and that the... the relevant facts are peculiarly within the respondent's knowledge of why, contrary to what one would normally think of the president of a corporation, he is not in a position to comply with the subpoena. There is sort of a presumption of business regularity, that the person normally thought to be in possession or control of a business' records would be the person to seek them from. This is the way grand jury subpoenas are issued, and there's never any further showing than that. Then it's up to that officer to say why it is that he can't comply. John Paul Stevens: Mr. Wallace, could I interrupt you for a moment? You say you don't think it makes any difference that he was late making this. He didn't make the same showing at the original judicial enforcement proceeding. Do you rely at all on the fact that instead of getting on the witness stand, he submitted this so-called written oath? Supposing he had gotten on the witness stand and said exactly the same thing he said in the oath? Lawrence G. Wallace: That would be a very different case. Our position is that he submitted no evidence at all. John Paul Stevens: Oh, I see. Lawrence G. Wallace: That's what we're leading up to. It wouldn't have mattered whether he did it at one hearing or the other. Warren E. Burger: Let's assume for a moment, Mr.... are you finished? Well, it's... yes, I am. Because I gather you would say it would be different if he, instead of submitting a written affidavit he'd given oral testimony saying in haec verba the same thing. Lawrence G. Wallace: If he had submitted himself to cross examination-- John Paul Stevens: No, no. No. Without cross examination. Lawrence G. Wallace: --Oh, no. Cross-- John Paul Stevens: In other words, if he'd done what he did in the Curcio case, which was get on the stand, say I don't have the records, and I refuse to say why because of the privilege, which is exactly-- Lawrence G. Wallace: --The... the... but in the Curcio case, the only thing contested at the appellate level was his refusal to testify rather than his refusal to produce the records. And what was upheld was his right not to testify if he claimed the privilege against self-incrimination. But the Court was very careful... and this is one of the cases that we draw our principle from... to distinguish the question of producing the records that he, because he held them in a representative capacity had no privilege not to produce. And if the requisite showing is made to support the production order, that is our prima facie case that it requires a burden of production to shift to him to show why he can't produce them. John Paul Stevens: --But the Curcio case holds that the claim of privilege is proper. You agree with that? Lawrence G. Wallace: With respect to the testimony that the subpoena asked him for. John Paul Stevens: Right. And but, therefore, the testimony on... his direct testimony "I don't have the record" is acceptable without subjecting himself to cross examination. That's what the case holds. Lawrence G. Wallace: With... with respect to-- John Paul Stevens: Nonpossession of the records. Lawrence G. Wallace: --With respect to the... the order in the subpoena requiring him to testify with respect to the records. But the case-- William H. Rehnquist: Under the Curcio opinion would Curcio have been subject to cross examination on his answer "I don't have the records"? You know, not on the issue of where they are if you don't have them, but on the issue of does he have them? Lawrence G. Wallace: --He would be subject to cross examination in the context of enforcing the order to produce the records, if that was the way he chose to respond to that order through his own testimony. William H. Rehnquist: Well, that doesn't really... that doesn't really answer my question, I don't think. Lawrence G. Wallace: I... I... I... I... yes. William H. Rehnquist: He gets on the stand and says "I haven't brought the records. " "I don't have the records. " And concededly, under Curcio he cannot be cross examined as to where the records are if you don't have them. Could he have been cross examined consistently with the Curcio opinion on his answer "I don't have the records"? Lawrence G. Wallace: Well, in... in our view he could be cross examined on both of those issues in the context of the need to get compliance with the order to produce the records. He... he... he was responding... I mean what was at issue on appeal in Curcio was the question whether he had to testify concerning the records in response to the subpoena. But in order to meet his burden with respect to production of the records, he doesn't have to take the stand at all. He can introduce other evidence to show that he cannot produce the records. Once the Government has made the requisite showing that he is an officer who ordinarily would be holding the records or have them available in his representative capacity, that is all the Government needs to show in order to get its production order enforced. And then it's up to him through either his own testimony or the testimony of third parties or of other witnesses that he wants to bring in, and compulsory process is available to him to bring them in. Thurgood Marshall: Mr. Wallace, kill the hypothetical case. Suppose his answer truthfully was "I burned them up". He couldn't testify to that, could he, because he'd violate his Fifth Amendment, couldn't he? Lawrence G. Wallace: Well, he... he has that problem. That is... that... he-- Thurgood Marshall: You don't know any way out of that problem, do you? Lawrence G. Wallace: --Well, what I think should not be the way out is to have the law reward him for destroying the records when process issues by allowing him through refusing to testify and pleading his privilege against self-incrimination to defeat a... a production order that would otherwise result from the showing that the Government made. Warren E. Burger: Is there any holding in this Court that prohibits a judicial inquiry into the good faith of the assertion of the Fifth Amendment? Lawrence G. Wallace: Not at all. Precisely the contrary. The Court-- Warren E. Burger: It's done constantly in trial courts, isn't it, when... when there is an apparently dubious assertion of the Fifth Amendment and cross examination develops that there is no basis for a genuine Fifth Amendment claim? Lawrence G. Wallace: --That is... is... is precisely the case. And even when there is a proper basis for a Fifth Amendment claim... and this is our basic point here... what the Court has held time and again is that once a witness chooses to offer testimony upon a fact that's been put into issue, and in this context upon whether he can produce the records, if he chooses to contest that through is own testimony, that operates as a waiver of the Fifth Amendment privilege as to matters reasonably related to that question, to the question on direct examination. John Paul Stevens: Curcio held squarely to the contrary. Lawrence G. Wallace: Well, that is not our view of Curcio, because the production question was not what was at issue. And-- John Paul Stevens: Well, would you tell me what you think Curcio holds? Lawrence G. Wallace: --It... it... it holds that he can refuse to testify in response to the subpoena requiring him to produce and testify. We are not in this proceeding-- John Paul Stevens: Well, it holds he... he testified that he didn't have the records, and then he said I won't tell you where they are because I assert the Fifth as to the cross examination. Exactly what this man was doing. Lawrence G. Wallace: --That... that... that is correct and... but all I can do is repeat that what was contested was that whether he... he responded adequately and waived his Fifth Amendment privilege with respect to the order that he testified concerning the records. Here we're not... we're not trying to enforce the subpoena requiring him to testify in face of his Fifth Amendment claim at all. We're just saying that if he doesn't want to testify, he has to make some other showing of why he can't produce the records. And if he chooses to make that showing through his testimony, then the normal principle of waiver of cross examination with respect to related matter has to apply. Lewis F. Powell, Jr.: Mr. Wallace, I'm not quite sure yet that I understand your position. Did I understand you to say that if the individual here, the defendant, the suspect had simply taken the Fifth rather than making any effort to explain why he didn't have the records or even to deny that he had them, could he have just said as soon as you've made your prima facie case I claim the privilege against self-incrimination? Lawrence G. Wallace: He... then I think he would be subject to civil contempt, because he has done nothing to satisfy his burden of production. Lewis F. Powell, Jr.: So he would at least have had to bring in the... a witness, a third party, for example, to explain his situation. Lawrence G. Wallace: We have made the requisite showing. Then there is a burden of production on him. That is the way we read the law and the cases. Byron R. White: Well, if he gets on the stand and says I don't have them, even if he may not be cross examined beyond that, you say that he hasn't made the requisite showing. Lawrence G. Wallace: Well-- Byron R. White: Don't you? Don't you say that? Lawrence G. Wallace: --That is correct. I mean at... at... at the least that may not be entitled to credence. Byron R. White: His uncross-examined... his uncross-examined assertion is not... he cannot use an uncross-examined assertion to satisfy his burden of showing why he can't produce. Lawrence G. Wallace: That is our position. Byron R. White: Yes. Lawrence G. Wallace: And that is precisely the error that we think the Court of Appeals made in this case. The oath in purgation really was in the nature of a pleaing of what it is that he could prove if he... if he put in his proof. Warren E. Burger: In your view could he be then asked and required to answer "Did you ever have possession of them? " Lawrence G. Wallace: I think that would be a proper question on cross examination, and that if he chose to testify on the subject he would have waived that. He would have waived any effort to find out from him what became of the records. Warren E. Burger: I'm not talking about a waiver. I'm talking about a compelled answer. Let's assume a hypothetical now. The man is put on the stand. It's established by objective evidence other than his testimony that at one time he was the secretary of the corporation, and then he's asked where are these records. He takes the Fifth Amendment. Then the next question is "Did you ever have these records in your possession? " Can that answer be compelled? Lawrence G. Wallace: I rather doubt it, not in the face of this Fifth Amendment claim, because it could be a step in the chain of proof against him. But-- Warren E. Burger: Without any explanation of how the Fifth Amendment protection is required to explain whether he ever had possession of them? Lawrence G. Wallace: --That... that... that might be a proper inquiry into whether he has a basis for the claim. William H. Rehnquist: But if he... if he invokes the Fifth Amendment in response to a question like that, the District Court is entitled to weigh that invocation of privilege against him in making a factual determination as to whether he testified truthfully on the original question, isn't it? I mean this is a civil proceeding. Lawrence G. Wallace: Yes, yes, that is correct also. Byron R. White: You can also say if you're going to take the Fifth Amendment and not make a showing, you're going to have to produce the records because you just haven't made... unless you permit cross examination, you just haven't satisfied your burden. Lawrence G. Wallace: That is precisely our position. Sandra Day O'Connor: Well, I suppose... doesn't the court have to, on your motion to strike, simply strike the preceding testimony and the answer? There's nothing then in the record in the way of evidence that he's produced. Isn't that the reality the court must enforce? Lawrence G. Wallace: That is our position. That is our position, that he has produced nothing except something that's in the nature of a pleading that the Court of Appeals erred in giving any evidentiary weight to. And-- Thurgood Marshall: But if he takes the stand and says "The reason I didn't produce them is because I don't have them and I never had them. " I don't know why that is not an adequate answer. Lawrence G. Wallace: --It... it... it may well be, but it would be subject to the test of cross examination. Thurgood Marshall: And you ask him "Did you ever have them", and-- Lawrence G. Wallace: Well, we might ask-- Thurgood Marshall: --And then he says, "I refuse to answer on the grounds it would incriminate me. " I think he has a perfect right to do that, doesn't he? Doesn't he? Lawrence G. Wallace: --Well, then we... we might... he might still not satisfy his burden with... with that kind of testimony. That's a pretty thin showing for a president of a corporation to make with respect to corporate records. And he's not-- Thurgood Marshall: When I take the Fifth Amendment-- Lawrence G. Wallace: --The fact that he's taken the Fifth Amendment does not require the District Court to give credence to his testimony prior to his taking the Fifth Amendment. If anything, it detracts from the credibility of his prior testimony. Thurgood Marshall: --Well, I don't understand what else he can do after he asks and says that my answer would incriminate me. Lawrence G. Wallace: Well, that... that is up to him. It depends on the circumstances what else he can do. Thurgood Marshall: But isn't that what he did here? He said "I would incriminate myself". Lawrence G. Wallace: Here he didn't submit himself to any cross examination whatsoever. He refused to take the stand. William H. Rehnquist: All you're saying is that the Government can't have... all you're saying is that he can't have his cake and eat it, too. Lawrence G. Wallace: That is correct. I mean under the District... under the Court of Appeals holding, he has been put in a stronger position than a forthright witness who got on the stand and who submitted himself to examination by the Government, and whose credibility was undercut by the Government's cross examination, and who was disbelieved by the District Court. The... the... here someone who refuses to take the stand at all and couples this written statement, which he tries to get weighed as evidence, with a plea of the Fifth Amendment has been put into an impregnable position in comparison with a forthright witness who does take the stand. Now, that can't be right. John Paul Stevens: Well, of course, you're really disagreeing again with Curcio, because of course that same thing happened there. But what is your understanding, Mr. Wallace, on what will happen on remand if the Ninth Circuit order were carried out? Didn't they send it back for an investigation of the bona fides of the Fifth Amendment claim? Lawrence G. Wallace: That is correct. John Paul Stevens: And what do you understand that means? What will they be doing? Asking him the factual basis for his... for his claim, is that it? Lawrence G. Wallace: As far as I can tell. They didn't really specify. And, you know, my surmise is really no better than anyone else's on that. I don't see what else would be at issue. There might be a further effort made by the Government to bolster its proof, but our position is that we've already introduced more than is necessary under the Powell case and others that spell out what our requisite showing is in the absence of some production of evidence on the other side. I'd like to reserve my remaining time, please. Joseph H. Harbison, III: Mr. Chief Justice Burger-- Warren E. Burger: Mr. Harrison. Joseph H. Harbison, III: Mr. Chief Justice Burger, and may it please the Court: What this case is really all about is whether or not my client, Mr. Rylander, met his burden of production on his defense of inability to comply by several things, not just his oath and affirmation that he didn't have the documents, but when he showed up in front of the IRS on February 4th and said I don't have them and I take the Fifth, when the agents testified on the trial on October 8th that he had said that, when he filed the oath, and finally, in answer to Justice Stevens' question, when he took the stand on October 23rd and Federal Judge Carlton said to him, "Mr. Carl... Mr. Rylander, you have filed an oath in purgation stating that you do not have the records. " He said, "That is correct, Your Honor. " Judge Carlton said to him, "Where are the records"? And he said, "I take the Fifth on the advice of my counsel. " As the Court is aware from the record, I was appointed to represent him on October 9th, the day after the trial, a combined trial, civil and criminal contempt. The first thing I did immediately was have the civil contempt vacated. We then proceeded to adduce more evidence. So it's not just his oath that's in evidence to support his burden. But the issue here is is the oath... and I say along with his other testimony, including that on the stand and that in front of the IRS agent... sufficient to meet his burden of production at a contempt hearing to prove his inability sufficient to put the burden of production again back to the Government along with their burden of persuasion, which they had all along, by clear and convincing evidence to prove that the records that they sought ever existed, which they never showed. If we return to the summons enforcement hearing, which this Court has said in Donaldson must be summary in nature, and this Court said in Powell you must meet only these minimum conditions, and in Freedom Church said that the issue of his possession, the person summoned, is never in issue was met. Their... their offer of proof there was... and you have to remember this is 1979 now... excuse me... 1980... that he was president of a corporation in 1975, that he signed two checks in 1975, that he was president of the other corporation in 1975, and that he signed two checks in 1975. As the Court should be aware from the trial on October 8th, the Government introduced two affidavits from the Secretary of State of California that both of those corporations weren't active. One died in 1975, and the other one had been active in '74, '76 and '78. So the Government at the summons enforcement hearing never had the burden to show that those records existed, never tendered the issue that those records existed, and never proved that those records existed. At the contempt trial for the first time Mr. Rylander said, "The reason I can't produce them is I don't have them. " And when asked why don't you have them, he properly, under McPhaul, Curcio, O'Henry, Meeks, Traub, Hansen Niederhauser and every other case we've cited in our brief, said, "I can't tell you that. " "I take-- " William H. Rehnquist: You say... you say at the contempt trial he said he didn't have them. Did he actually testify at the contempt trial? Joseph H. Harbison, III: --Yes. That's why I made the point that the day I was appointed, the day after the so-called trial, I had the civil contempt vacated. There was no longer a conviction of civil contempt. Judge Carlton gave me time to prepare for a continued hearing. That hearing was had on October 23rd. At that hearing Judge Carlton forced Mr. Rylander to the stand. He asked him the question, "Where are the records"? And Mr. Rylander said, "I can't answer that. " "I invoke my Fifth Amendment on the advice of counsel. " He then reinstated civil contempt. William H. Rehnquist: He said, "Where are the records"? Did your client at that hearing himself get on the stand and say "I don't have the records"? Joseph H. Harbison, III: No. He filed the oath, the affidavit saying I don't have them. The first question from the Federal judge is "You have filed an oath stating you do not have them. " He said, "That is true". The second question was "Where are the records"? He said, "I take the Fifth". That was the end of the questioning. Judge Carlton said I've made my record. Take it to the Ninth. Byron R. White: Well, what was he held in contempt for... failure to produce the records or failure to testify? Joseph H. Harbison, III: That's a very interesting question, Judge White. The initial-- Byron R. White: Well, let's assume for the moment that the judge had said, "Look, I know you're taking... you're validly taking the Fifth Amendment, but you have not made a showing. " "I think the Government has made its case. " "I know you disagree with that, but the Government has made its case, and you are either going to have to explain why you can't produce, or you're going to be held in contempt for failing to produce, not for failing to testify. " Joseph H. Harbison, III: --Okay. I-- Byron R. White: That's Curcio. Joseph H. Harbison, III: --Okay. Well, I... I have a couple of points to make to answer your hypothetical. First, there is no difference between producing and testifying. The original summons said, "Mr. Rylander, come testify and produce. " The summons enforcement order that the judge signed said "Produce". Byron R. White: Well, he certainly never made any claim that producing the records would... would violate his Fifth Amendment rights. Joseph H. Harbison, III: No. And nor do I state that here. Byron R. White: No. Well-- Joseph H. Harbison, III: I think this Court-- Byron R. White: --So there is quite a difference between those-- Joseph H. Harbison, III: --Certainly. Byron R. White: --Two things. Don't tell me there isn't. Joseph H. Harbison, III: Well, that... I haven't finished yet. In this case there isn't because there are two purging conditions. The conditions are produce or testify. Now, that's my precise point here. To carry his burden of production, to force him to go further than to say I don't have them and I can't tell you their whereabouts, puts him in the cruel trilemma that the Fifth Amendment, the policies behind it, are designed to protect. He's forced to produce something that may not exist. If it doesn't exist, he goes to jail. He's forced to incriminate himself if he can't produce for some crime. Warren E. Burger: Well, has he made any showing that they don't exist? Joseph H. Harbison, III: My point is, Your Honor, that he doesn't have to make that showing. That's the Government's burden to show that the records exist once he states inability. Once he tenders an issue of fact "I don't have them", then the burden goes back to the Government to prove that they exist, and if the Government proves that, he's in contempt. Warren E. Burger: Well, suppose they... let's make this concrete... suppose the treasurer of... or the secretary of General Motors Corporation is called as a witness and he's asked to produce the minutes of the last five meetings of the board. Do you think he could get by with this procedure you're talking about? Joseph H. Harbison, III: He would have to show up-- Warren E. Burger: He's presumptively in charge of those records unless he can demonstrate that he is not. Joseph H. Harbison, III: --No, Your Honor, I disagree with the so-called presumption that he is in possession of those records without at least some showing. The case of Straub, Hansen Niederhauser, Rizzo... they all say no contempt unless the Government-- Byron R. White: Are those cases from this Court? Joseph H. Harbison, III: --No, but Fleischman is, Your Honor. Fleischman impliedly said since the Government has shown that the record exist, now the burden is on you to give us some reason for inability, and you've given us nothing. You never made a statement to the Committee on Un-American Activities, you never made a statement to the District Court. If you had of said... they used the word "any"... if you hadn't made any reference to the fact of inability, then the burden of persuasion is back to the Government to show they exist, and if they show-- Sandra Day O'Connor: I suppose the point is, though, that if all he says is "I don't have them and won't submit to cross examination. " then the trial court has to strike his statement that he doesn't have them. So there is no evidence. That's why there is no evidence. Joseph H. Harbison, III: --I disagree, Justice O'Connor. He has met his burden of production. I agree that at a contempt hearing the alleged contemptor has to tender the issue, the issue being inability. He does that by saying "I don't have the records". Now, that... if that's the only evidence-- William H. Rehnquist: He wouldn't let himself be cross examined on that. So that evidence goes out-- --So that evidence goes out-- --Front, and there's nothing. Joseph H. Harbison, III: --No. I think you missed the point of Curcio and McPhaul. Once he says "I don't have them", just like Curcio... Curcio admitted they existed and said "I don't have them". And the Court... this Court held he couldn't cross examine him as to whereabouts. Byron R. White: Well, I know, but they... they... they held him... want to hold him in criminal contempt for failing to testify any farther. They did... they carefully set aside the question about production. Right. Joseph H. Harbison, III: Well, that... that was answered in O'Henry. O'Henry is a well-reasoned opinion of Curcio and McPhaul. Byron R. White: Is O'Henry a case from this Court? Joseph H. Harbison, III: No, it is not. It is, I believe, a Fifth Circuit. But it's a well-reasoned opinion that takes into account Curcio and McPhaul just as Meeks, which is pending before this Court, and as does Rylander. It was established long ago in Austin Bagley Corporation by Judge Learned Hand that a corporate custodian has no personal Fifth Amendment right not to produce corporate records, but having produced those, he can give unprivileged testimony to identify them. He makes explicit that which is implicit in their production. Curcio and then O'Henry after it takes that rationale and says when a corporate custodian produces the record and says... when he doesn't produce the records, his burden requires him to take the stand, testify under oath, as Mr. Rylander did here, "I do not have them". Then under the rationale of Curcio, you can't cross examine him any more because you're going to violate his Fifth Amendment right. That's-- Warren E. Burger: Even the question "Did you ever have them"? Can't ask him that? Joseph H. Harbison, III: --That's one of the questions in Curcio, one of the 15 written questions: "Did you ever have them"? and "When did they become unavailable to you? " Warren E. Burger: The setting is different in Curcio. Take my hypothetical, the secretary of General Motors, and let's enlarge a little bit. The evidence shows that the records have been kept by him up to the last five meetings, the most recent five meetings, his name on them, no question about it. Then he's asked about the last five, and he just simply says Fifth Amendment. Is that the end of it? Can no inquiry be made thereafter? Joseph H. Harbison, III: No. Because in your hypothetical, Your Honor, somebody has shown that those records existed at one time, and in all the cases the Government cites, either at the summons enforcement or the contempt hearing, one of those two the Government carried its burden. They showed that the records exist. They showed either that they existed, or like in Oriole the only year that was missing was 1925, in Maggio the trustee made a specific finding in the turnover order that they existed, in NLRB v. Transocean a Special Master was appointed and specific detailed findings were made that they existed. That has never happened in this case. If the Government had tendered the issue of his ability either at the summons enforcement or at the trial and given some evidence, any kind, one scintilla of evidence that those records existed, my argument wouldn't hold up. Thurgood Marshall: Does the law in... does the law in California say who is to have custody of corporate records? Joseph H. Harbison, III: No, it does not, and that's why the Ninth Circuit held that on the-- Thurgood Marshall: Isn't that about the only one of the 50 states, isn't it, that says that a corporation doesn't have to keep records? Joseph H. Harbison, III: --No. A corporation does have to keep records. Thurgood Marshall: And whose possession are they in? Joseph H. Harbison, III: There is no presumption as to whose possession they are in, but it is reasonable to assume that a corporate officer might possess them. But that presumption is not sufficient to get a conviction of contempt. Thurgood Marshall: Including... including the president. Joseph H. Harbison, III: Including the president. Thurgood Marshall: And is it presumed under California law that this president we are now talking about did at one time have possession of those records? Joseph H. Harbison, III: Well, apparently someone made that presumption that since he might have had them in 1975, he still ought to have them in 1980, but there's no proof. Thurgood Marshall: Well, do you agree that they... he presumed to have had them in '75? Joseph H. Harbison, III: No, I do not. Thurgood Marshall: You presume that he violated the California laws? I'm talking about your client now. Joseph H. Harbison, III: No, I do not, because one of the documents that the Government introduced at trial was an affidavit from the Secretary of State saying that the corporation they wanted the records from was defunct in 1975. Therefore, they wiped out any presumption they might have had with their own evidence. Thurgood Marshall: Why? Joseph H. Harbison, III: Because they proved that the corporation was defunct; therefore, there's no presumption that it was keeping any records. Thurgood Marshall: If the biggest rum running, dope peddling corporation in a state is caught by IRS or somebody and the ring leader is subpoenaed to bring in the records, if we follow this case, will his best defense be to burn them up? Joseph H. Harbison, III: Well, that's apparently what the Solicitor General is arguing, that it will be very difficult to enforce the law. But I don't think that this Court should make an exception and carve out a piece of the Fifth Amendment because it's going to be difficult-- Thurgood Marshall: I said in my hypothetical case. Joseph H. Harbison, III: --Is it going to be difficult? Thurgood Marshall: Yes. Joseph H. Harbison, III: I would need more facts. Do they have the liquor? Did they confiscate it? Is the only way to convict them the records? Then it would be difficult. If there's some other means, then no, it wouldn't be any more difficult than any other case. Thurgood Marshall: But wouldn't that be the normal thing for a corrupt law... not law-abiding but law-destroying organization to do would be the best way would be to burn them up? Joseph H. Harbison, III: If they had records-- Thurgood Marshall: And the lawyer would say if you burn them up, I've got a good case that'll support you. Joseph H. Harbison, III: --Well, you'd have a better case, because the Government could not-- Thurgood Marshall: Wouldn't this be a good one, if we come out your way? Joseph H. Harbison, III: --I don't think it would be good. It would be harder for the prosecution to prove their case certainly because they... one avenue of proof is now gone. They won't have the company's records. Thurgood Marshall: My point is... I thought I made it clear... this is the only evidence they had. Joseph H. Harbison, III: Well, if that's the only evidence they have, then it's impossible. Thurgood Marshall: That's right. So he goes free. Joseph H. Harbison, III: That's true. William H. Rehnquist: Mr. Harbison, I just glanced over Curcio again, and it didn't involve... the issue on appeal didn't involve production at all. It involved criminal contempt for failure to answer questions for which the privilege against self-incrimination was claimed. Joseph H. Harbison, III: I agree-- William H. Rehnquist: The... the Court said that the fact that they were union records and not his personal records didn't mean that he couldn't invoke this privilege against self-incrimination if questions about the union records would in fact incriminate him. But I don't see how that bears on the production issue here at all. Your client wasn't sentenced for failure to answer a question to which he'd raised the privilege. He was sentenced for failure to obey the summons order. Joseph H. Harbison, III: --Yes, but he was sentenced for that because he is unable because of the Fifth Amendment to meet his burden. William H. Rehnquist: He's not unable. He's unwilling. Joseph H. Harbison, III: Well, see, no one knows that. It's never been proved by the Government the records exist. If they don't exist, it's impossible. William H. Rehnquist: But at this stage the Government has come forward with enough, the Government says, so that your client should take the laboring oar for a while, and if he refuses, he's entitled to refuse under the Fifth Amendment, but he's not entitled to go scott-free of the summons order. Joseph H. Harbison, III: Well, therein lies the issue. He has rowed the oar, I am arguing, by submitting his affidavit, by appearing in front of the IRS agent pursuant to the enforcement order and stating he does not have them, and by taking the stand and saying he cannot testify where they are. He has done enough. To force him to go further forces him to give up his Fifth Amendment right and incriminate himself for burning those records, not keeping those records, and subjecting himself to further criminal penalties. William H. Rehnquist: It doesn't force him to give up anything because-- Joseph H. Harbison, III: He's going to go to jail if he doesn't. That's compulsion. William H. Rehnquist: --Well, he's going to go to jail under one of two theories. It's really his choice. Joseph H. Harbison, III: That's compulsion. Sandra Day O'Connor: But a defendant... but a defendant... counsel, in a criminal case where a defendant, for instance, is charged with murder and the only people present at the scene of the alleged murder were the deceased and the defendant, now, if the defendant wants to plead the Fifth Amendment so he can't take the stand and say well, it was self-defense, then he risks going to jail because he's convicted possibly of the offense charged. It puts him in a tough position to choose, but we've said he has to make that choice. He either gives up the Fifth Amendment and testifies fully and tries to get off the hook, or he pleads the Fifth and perhaps is convicted. Now, how is Mr. Rylander in this case in any worse position than that? Joseph H. Harbison, III: He's in a much worse position, Your Honor, because in your hypothetical that gentlemen is not compelled. He has a tactical choice to make, albeit difficult. In this case he either produces the records or goes to jail. There is no uncertainty. In your hypothetical the man has a tactical advantage about whether or not to take the stand, and he listens to the prosecution's case, and if he feels it's pretty strong, then tactically he's going to have to take the stand and rebut it. If he doesn't, he stays off. That's like McGautha or Brooks v. Tennessee or U.S. v. Jackson. They're cases that compelled the violation of the Fifth like this one does. It said you either testify first in your defense, or you don't testify at all. And the other one said if you plead guilty before a judge under a specific statute, you cannot get the death penalty. You must-- Byron R. White: Mr. Harbison, suppose... suppose that... that... that you would agree that... at the... at the enforcement hearing the Government made a prima facie showing that the records existed and that... and that you would agree to it, that that showing had been made. Then what is your client's-- Joseph H. Harbison, III: --Then I would... I would say to you, Your Honor, if you were the District Court judge and we had legitimate presumption of possession because somebody had shown it at the summons enforcement, which wasn't done here, I would cite to you the case of Maggio. Maggio specifically sets forth that inability is a defense to Powell for conditions under Powell to stop the order. And it's also-- Byron R. White: --So you're... what you're really saying is that the Government... that there's no way the Government can come back and meet its burden here when he takes the Fifth Amendment. Joseph H. Harbison, III: --No. Byron R. White: All he has to do is say I'm sorry, I just can't... I don't have them. I can't produce them. And that's the end of the case. Joseph H. Harbison, III: No. There's a very good factual distinction in Maggio. If they had of shown possession at the summons enforcement, then you have a legitimate continuing presumption at the contempt hearing. Then they have made their prima facie case of contempt, and it's up to him to show present inability to comply. The burden would be on him. Byron R. White: All right. If he took the Fifth Amendment then and refused to say another word and produced no other evidence, he would be in trouble. Joseph H. Harbison, III: Yes. Byron R. White: All right. So when do you... what do you say the Government has to have proved, that they were in existence once? Joseph H. Harbison, III: Yes. At least to get... the Government makes a very novel argument on page 21 and 25 of their brief. They claim that the findings of fact entered by the court on October 24th, the day after contempt, created a presumption, retroactive, that he had the records at the summons enforcement hearing eight months before on January 14th. That presumption carried forward to the trial on October 8th. That's how they met their burden. So what they're saying to this Court is we never showed he had possession. Byron R. White: Well, it sounds to me like what you really should argue is that... is that the turnover order was infirm in that there never was a requisite showing to substantiate or to support a turnover order. Joseph H. Harbison, III: If we were in a bankruptcy proceeding, that would be precisely what I'm doing. But in a summons enforcement, the issue of possession does not arise. That's what this Court said in Powell. The only possession in Powell is that the IRS doesn't have them, and Mr. Rylander already beat Agent Vandenburg in a prior summons enforcement by going to the Ninth Circuit and showing that she did have possession. She lied in her affidavit. She said I don't have possession, but the IRS did. Byron R. White: Is it... do you think the Government... I'll ask the other side... but do you think the Government agrees that at some point it has the burden of showing existence? Joseph H. Harbison, III: I think they have, Your Honor, because every case they've cited for the proposition that they have this continuing presumption or that there was a final appeal of our order... that is, res judicata... those cases that they cite found possession. They didn't find possession. Byron R. White: Well, the only difference between... it sounds to me like the only difference between you two then is whether the Government has made an ample showing of possession. Joseph H. Harbison, III: Ever. Byron R. White: If they have, if they have, you just a while ago, I thought, indicated-- Joseph H. Harbison, III: I did. Byron R. White: --That your client would have... could not just take the Fifth and be quiet. Joseph H. Harbison, III: No. That's why the Government doesn't have the... the Government wants to shift the burden back to us. Byron R. White: So this isn't a question of the Fifth Amendment or anything else. It's just a question of... it's a question of whether the Government made an ample showing and satisfied its burden. Joseph H. Harbison, III: Well, you're right to a certain extent, but here-- Byron R. White: Thank you. [Laughter] Joseph H. Harbison, III: --Here, after my client makes his showing and the burden goes back to them, they want to cross examine him to make their showing instead of them going out and getting the third party or introducing the extrinsic evidence. They want to convict him out of his own-- William H. Rehnquist: Well, how can your client make a showing... that is, at a hearing where there's presumably the facts are adduced by oral testimony... if he simply gets up and makes an assertion, albeit orally, and refuses to be cross examined on it. I think Justice O'Connor is quite right. The Government is entitled to have that testimony stricken. Joseph H. Harbison, III: --Your... that hypothetical is akin to a Fleischman-type situation where the Government did show some possession, and the person failed to say anything. They didn't even say I don't... I don't have the ability. William H. Rehnquist: Well, the discussion... the discussion in Fleischman was not in the context of anyone having taken a witness stand and offered a partial explanation. It was in the context of having offered no explanation, as I read Fleischman. Joseph H. Harbison, III: That's true. My client has offered some explanation. William H. Rehnquist: But utterly worthless so far as cross examination is concerned. Well, it may be... and it may be worthless, but what if you said well, yes, it's worthless, but nevertheless before my client can be held in contempt for failing to produce, there must be... the Government must have shown somewhere in this proceeding that the... that the records existed. Joseph H. Harbison, III: That's precisely my argument. And until they do, he's got the Fifth Amendment. Byron R. White: Which is a... it's, a) a question of law, and it's also a question of fact: is there some kind of a showing in the record? Joseph H. Harbison, III: Correct. Warren E. Burger: I'm not sure your responses now are consistent with your responses to me on my hypothetical. When I hypothesized the secretary of General Motors and the Government showing that he had traditionally kept these records and... up to a point, put his signature on them, all this established so that their existence and his testimony was established, but then they asked him a question and he says he takes the Fifth Amendment, and you say that's the end of it. They can't ask him when he last saw them, if he knows where they are, or if he knows who has them in custody. Joseph H. Harbison, III: No. I think we jibe, Mr. Chief Justice, because in your hypothetical you take it as a given that somebody has proved possession. Warren E. Burger: Well, that is given. Joseph H. Harbison, III: No, it's not given in this case. Warren E. Burger: In my... I'm talking about my hypothetical. But you said even the secretary of General Motors may just assert the Fifth Amendment, and that's the end of it. There can't be any pursuit or cross examination beyond that; that that's an absolute. Joseph H. Harbison, III: Then I would retract that answer and say to your hypothetical once there has been proven possession, the Fifth Amendment is no longer bona fide. The burden is back on him, and he will... he has forfeited it because the Government has shown they exist. And he has no-- Byron R. White: They still can't make him answer. It's just that he might be in-- Joseph H. Harbison, III: --He's in contempt. He can legitimately be held in contempt. Byron R. White: --He might be in jail for not producing. Joseph H. Harbison, III: And he wasn't sent there because he wouldn't violate his Fifth Amendment right like he is in this case, because they never carried a burden, either at the summons enforcement or at the trial. Their argument, their threefold argument here: we didn't have the burden. If we did have the burden, it was res judicata at the summons enforcement, although the issue was never raised. And if you don't like that, then when he filed the affidavit, that's not competent evidence to carry his burden. And if you think it is competent evidence, then he waived his Fifth, and we can cross examine it and carry our burden. All of their arguments are thrusted at carrying their burden that the records existed, which it didn't, and their arguments fail because there is no proof. John Paul Stevens: Let me ask you a question, if I may. I... I detect some change in your position, too, I think. Assume that he proved that the records were in existence and in the custody of your client at the date he was supposed to respond to the subpoena. Joseph H. Harbison, III: The summons enforcement hearing. John Paul Stevens: The summons... no, the General Motors example. And then at the contempt hearing, in civil contempt, not criminal contempt... I understand he's been held in criminal contempt, but that's not before us. At the civil contempt hearing he gets on the witness stand and says yes, it's true I had the documents then. I am now, however, unable to comply. They are no longer in existence, something of that... and he does not explain why, and he pleads the Fifth as to the explanation of why. Can he be held in civil contempt, in your opinion? Joseph H. Harbison, III: Absolutely. John Paul Stevens: You think he can be held in civil contempt? Joseph H. Harbison, III: Absolutely, because they proved... they have a legitimate presumption that the records exist, and he has not rebutted it. He can still take the Fifth. In my case my client has taken the Fifth, and there never was a continuing presumption. John Paul Stevens: Well, I understand that, but you think that your-- Joseph H. Harbison, III: And there's no proof at the contempt hearing that they ever existed. John Paul Stevens: --You think under Maggio that he could be held in civil contempt even though he has testified under oath that the documents no longer exist. Joseph H. Harbison, III: Sure. His Fifth Amendment then was no longer bona fide. That's why the Ninth Circuit said send it back, and let's see if it's bona fide, and let's see if the Government can carry some burden of proof here to show that the records exist. Thurgood Marshall: Is it your position that once he says they're not, you can't any questions about those records, is that right? Joseph H. Harbison, III: My position is that if the Government at the summons enforcement shows that they exist, they're entitled to a continuing presumption. If they don't at the contempt hearing, they must put on a prima facie case that the records exist. In the light of either of those, the Fifth Amendment would fall and he would be held in contempt. Thurgood Marshall: What do you mean when you say... oh, excuse me. But you argue... you say they don't put on prima facie evidence, right? Joseph H. Harbison, III: Prima facie is-- Thurgood Marshall: Well, why isn't it prima facie when he says "I don't have the records"? He said that. Joseph H. Harbison, III: --That carries his burden, yes. Thurgood Marshall: Well, he said he didn't have the records. Joseph H. Harbison, III: Yes. Thurgood Marshall: So he admitted that the records existed. Joseph H. Harbison, III: No. He said he didn't have the records that were the subject of the subpoena. I don't think that's an admission that they ever existed. Thurgood Marshall: He said he didn't have them at this time. Didn't he infer that he had them? Joseph H. Harbison, III: No, absolutely not. This case would be akin, I think, on the issue of Fifth Amendment to someone who committed a murder, and the district attorney does not go after that individual. Either the city attorney or maybe the heir of the person murdered files a civil action, and they hit this guy with a summons, a subpoena, or a motion to produce the gun. And he shows up and he says "I don't have the gun". Thurgood Marshall: Why not get a man for treason if you're going to give a hypothetical. They're not talking about a murder. Joseph H. Harbison, III: Well, I'm trying to make a demonstration of the Fifth Amendment. If he's forced to produce that gun, obviously he violates his Fifth Amendment' because he would be convicting himself out of his own mouth. That is what the Government here wants to do. They want to violate my client's Fifth Amendment to carry their burden of proof, and my argument is that his Fifth Amendment holds up as long... as well as his statement that he does not have those records until the Government at either the summons enforcement or the contempt hearing proves that those records exist. Byron R. White: I don't think you're defending everything that you can find in the Court of Appeals opinion then, are you? Do you think the Government, for example, has to show by clear and convincing evidence that the records are in Rylander's possession or under his control-- Joseph H. Harbison, III: Yes. Byron R. White: --Are in his possession or under his control. Joseph H. Harbison, III: Yes. At some time, either in the summons-- Byron R. White: Well, that is not... that isn't what... that isn't what the Court of Appeals is saying. And do you think their burden of proof is by clear and convincing evidence? Joseph H. Harbison, III: --Absolutely. And that was one of the reasons that this decision was overturned, because the Federal judge at page 353 of the transcript stated, "I find you guilty of civil contempt by the weight of the evidence, and I tell you, Mr. Robinson. " --who was the U.S. Attorney... "that if the burden is clear and convincing, we have a serious problem here. " Because he didn't even believe by clear and convincing evidence that Mr. Rylander was in civil contempt. And the Government in all of its briefs in both the criminal and civil contempt at the Ninth Circuit and its brief here admit that the burden is clear and convincing. Byron R. White: Do you think-- Joseph H. Harbison, III: In fact, on page 21 they say it's on us by clear and convincing to prove inability. Byron R. White: --If you think... do you think that at an enforcement proceeding in connection with one of these subpoenas the issue of presumption or existence comes up, that the Government then before it gets a turnover order or an enforcement order must show by clear and convincing evidence that they are then in possession and control of the defendant? Joseph H. Harbison, III: No. Because they can send the summons to anybody, and under Freedom Church it doesn't even have to be the person in possession. Byron R. White: So they can get a turnover, or they can get an order for him to produce. Joseph H. Harbison, III: Right. Byron R. White: And then-- Joseph H. Harbison, III: An order enforcing the summons. Byron R. White: --An order enforcing the summons. And then if he doesn't produce them and the gentleman comes in and says "I'm sorry; I don't have them. " then the Government has to... has to prove by clear and convincing evidence that they are in his possession and under his control. That's what the Ninth Circuit said. Joseph H. Harbison, III: Yes. If he says "I don't have them" and takes a valid Fifth Amendment. If he doesn't have a valid-- Byron R. White: I'm not sure. I'm really not sure what your position is right now. Joseph H. Harbison, III: --If he doesn't have-- Byron R. White: I understand your... I understand you think the judgment was wrong. Joseph H. Harbison, III: --Well, if he doesn't have a valid Fifth Amendment, then under Transocean he has to show detail why he doesn't have. Warren E. Burger: Do you have anything further, Mr. Wallace? Lawrence G. Wallace: Yes, Mr. Chief Justice. We agree that we have to show in a contempt hearing by clear and convincing evidence that he failed to comply with a valid order. Byron R. White: Exactly. Lawrence G. Wallace: But we don't agree with what the Ninth Circuit said we have to show by clear and convincing evidence. Byron R. White: Well, Mr. Wallace, don't you... do you think that at some place in this whole proceeding the Government must produce at least probable cause to believe that these records are in existence and that he has them? Is that ever a part of your case? Lawrence G. Wallace: I wouldn't use the term "probable cause". We do-- Byron R. White: Well, all right. Then whatever it is that you have-- Lawrence G. Wallace: --We... it can be shown by inference. Ordinarily you would expect a corporation to have records and the officer to have possession or control of them, as it... there is a finding by the District Court in this case on page 17A, Finding Number 7, "The defendant as president or other corporate officer had possession or control or both of the books and records of said corporation. " And this is based partly on this inference from the circumstances, but also on page 54 of the Joint Appendix there is testimony by an Internal Revenue agent who interviewed Mr. Rylander in 1975, that he indicated that at that time the records were in existence, and that they were at Apex Bookkeeping, and an address was given by this agent testifying about what Mr. Rylander said in the interview at that time. And I want to point out that in Curcio, unlike this case, the Court pointed out quite specifically at page 21 the conviction related solely to petitioner's failure to answer questions as pursuant to the personal subpoena ad testificandum. He had not been charged with failing to produce the books and records demanded in the subpoena duces tecum. He had been called to the stand in Curcio pursuant to the subpoena ad testificandum, and the questions were propounded to him. In our situation he has been asked to produce the records, and it was up to him either to produce them or to submit third party testimony about why he couldn't produce them or to take the stand. That's his choice of voluntarily taking the stand, although he didn't legitimately do it because he refused to submit to cross examination. But the court on pages 57 and 58 of the Joint Appendix, the District Court made it quite clear that he could purge himself of the contempt by... merely by indicating his willingness to comply with the court's order relating to the production of the documents, unlike Curcio's situation where he was called to the stand, and the contempt was in failing to answer questions propounded to him. Or he may forthrightly come forward to this Court and in fact demonstrate that he is incapable of doing so, which doesn't necessarily require his own testimony. Sandra Day O'Connor: --The court's order didn't make clear that third party witnesses would also suffice, did it? Lawrence G. Wallace: I... I... I would prefer that it be more explicit, but this portion-- Sandra Day O'Connor: But it's your position that that would have sufficed. Lawrence G. Wallace: --That's right. And that is consistent with the court's explanation on page 58 of the Joint Appendix. Warren E. Burger: Thank you, gentlemen. The case is submitted. Speaker: The Honorable Court is now adjourned until tomorrow at 10:00.

Warren E. Burger: We will hear arguments next in 75-1861; Patterson against New York. Mr. Rubino, you may proceed when you are ready. Victor J. Rubino: Mr. Chief Justice and may it please the court. This is an appeal from a four-to-three decision of the New York Court of Appeals affirming appellant’s conviction for murder and specifically rejecting his claim that the New York statutes pursuant to which he was convicted of murder, violated his Due process rights under the 14th amendment and that the New York statutes required him to bear the persuasion burden at his trial for murder on the issue of provocation, which in New York is the Model Penal Code formulation extreme emotional disturbance. The issue on this appeal is whether they are placing that persuasion burden on appellant at his trial in order to allow him to exonerate himself of murder and be convicted only of manslaughter in fact violates his Due process rights specifically in light of this court’s decisions in In re Winship and Mullaney versus Wilbur. It is appellant’s contention on this appeal that a reversal of his convictions require because there is a functional identity between the challenge to rule here of New York state and the rule invalidated by this court unanimously in Mullaney and furthermore that in Mullaney, the state of Maine argued that in fact there was only one generic crime of felonious homicide and that the provocation issue only distinguished two punishment categories; cold murder and manslaughter. It is clear in New York, there are two distinct crimes of murder and manslaughter and therefore it is more clear violation of Winship. I would like to stress at the outset that this appeal presents a challenge to one rule, the provocation rule as formulated by the Model Penal Code extreme emotional disturbance and I think now would only affect two states; New York and Connecticut in appendix A to our brief, we have listed the states which have adopted the extreme emotional disturbance defense and shown which states have place the burden persuasion on the defendant. Currently, it is only New York and Connecticut. In Connecticut there are now two lower court opinions applying Mullaney to place the burden on the state that is in two trial courts in two counties out of the six in Connecticut. So, the issue on this appeal is we argue very narrow, one rule arguably affecting two states. Speaker: Would you distinguish extreme emotional disturbance from the various ranges of mental disease or defects that are within the spectrum of so called insanity. Victor J. Rubino: Yes, Your Honor. I think the starting point is to understand that extreme emotional disturbance was a formulation to expand the concept of provocation and that it carried with it the requirement that there would be a reasonable explanation or excuse for the defendant’s conduct. I guess the only way I can state the differences is to say it is difficult to imagine that insanity one would have to not only show a certain state of insanity or certain disease, but then say I have a reasonable excuse for that. I think the very concept of insanity leaves aside that kind of objective standard that ultimately anchors each of the two concepts. In other words provocation is must be explained. It also goes less -- insanity goes to the intellect to knowing right from wrong and then there is no such question posed in the extreme emotional disturbance. Speaker: There is not? Victor J. Rubino: No. Speaker: Well, then what is the impact of the extreme emotional disturbance on the volition of the actor of the defendant? Victor J. Rubino: The impact is that at that at the time at which he has lost his selfcontrol, it does not mean he does not know right from wrong; it is not a test. In other words, he does indeed had no disease or defect. In fact, it assumes basically that he is a rational man who has then lost selfcontrol just as of provocation was described by this court in Mullaney. Speaker: Would you equate it to the order of vernacular in the heat of passion? Victor J. Rubino: I think it is broader, Your Honor; I think when you say equate, I would equate it only in the sense that it performs the same function that that function is to distinguish between the crime of murder and the crime of manslaughter. I would further say that it is clear in LaFave & Scott, for instance, they do use the term interchangeably when they speak of heat of passion, they then say extreme emotional disturbance. Speaker: Who does, who said? Victor J. Rubino: LaFave & Scott, Your Honor, in the section starting at page 572 to 582 in discussing heat of passion doctrines. It is also interesting to look at those ten pages in LaFave & Scott and compare them, we have an appendix B, put together the comments under the Model Penal Code concerning the revise formulation heat of passion and not only the Model Penal Code but the revisers in New York, the staff notes. If we compare the various ways in which it was believed extreme emotional disturbance would expand the provocation concept, we can see that it is still anchored in provocation but it simply opens up more situations and I would like, Your Honor, to go through those. The point being that in each of the situations that extreme emotional disturbance expands or so called expands the provocation concept of heat of passion, if we examine LaFave & Scott, we see that there are already some states under the heat of passion concept that had arrived there and so that ultimately what are we dealing with, we have a label. The new label entails more liberal scope provocation but it does not different conceptually or functionally. I may just take one example because the New York Court of Appeals stressed this particular liberalization in its opinion and that is cooling time. Under some heat of passion rules cooling time was fairly restricted and that the provocation had to spontaneously cause loss of control and lead to the killing and it was within a very limited time frame so that the defendant could not have cool down. In another words, if he was provoked last month by someone, he could not go a month later and just shoot him and claimed provocation. The point is that the extreme emotional disturbance formulation allows a longer cooling time, allows as the Court of Appeals put it a certain amount of brooding, this is I think Professor Wexler’s concept that in fact heat of passion or provocation and deliberation are not really mutually exclusive that if you think about it, you can, by deliberating, get more exercised about something rather than less and the extreme emotional disturbance concept was to allow a broader period of time. But the point is that now that you have a longer cooling time sort of speak allowed what does that difference mean constitutionally, why should that require a less reliable verdict of murder in New York as oppose Maine. If it went to hardship that might be an argument but the facts of this case show that al longer cooling time here as, for instance, in self-defense where you deal with antecedent circumstances where you claim that you were afraid of the victim and that’s you shot, may go back a year, a year-and-a-half, but the time period is filled with specific tangible facts and events. Nothing especial, the facts of this case are not exotic in terms of provocation. It is a fairly plastic provocation situation in overall context that is the love triangle and the adultery situation. So that we have tried to show in our brief that when we say functional identity between the New York and Maine rules, we are saying that these rules exist to distinguish murder from manslaughter; that there are significant punishment differentials. In New York, extreme emotional disturbance distinguishes between murder in the first-degree as well as murder in the second-degree in manslaughter and in fact in murder in the first-degree, the reduction is not to murder in the second-degree but to manslaughter, which clearly shows not simply a dropping down when you prove the extreme emotion disturbance issue but it shows the distinction clearly between the crime of murder in New York and the crime of manslaughter. Winship was the determinable case in this area, it explicitly established that the Fourteenth Amendment Due process clause requires and in the words of Winship, proof of every fact, which goes to constitute the crime. I think the problem that Mullaney presented in terms of interpretation was that in fact the state of Maine said we only have crime of felonious homicide and we have proved it; we have proved an intentional killing. The response of this court was that we will look to the substance of your law and not to the formal designation which you give and decide whether the due process clause applies, the reasonable doubt standard applies and that has caused some comment that in fact Mullaney has lead to a rather broad view of what is required to be proved by the state and might possibly lead to striking down a number of affirmative defenses. On this appeal we claim we are within the four corner of Mullaney and that this does not reach to the issue of other affirmative defenses and only the one before us. New York, as I said, does not present the problem that was presented by the state of Maine. New York clearly has two crimes and clearly the provocation issue extreme emotional disturbance here distinguishes them. Now what can be the distinctions? The New York Court of Appeals; 4-to-3 decision really dealt with two separate approaches to distinguishing Patterson from Mullaney; one is they look to the state law itself of Maine and said that Maine first of all really did not require the state to prove intent and we say that is simply not true that the opinion of this court to Mullaney and the state of Maine cases indeed the brief of the Attorney General in Maine make clear that intent has to be proved by the state of Maine. Speaker: How about Malice? Victor J. Rubino: Malice had to be proved by the defendant, Your Honor. Speaker: Yeah, but it was an element of the crime. Victor J. Rubino: Your Honor, as I understand Mullaney -- Speaker: The state never had to prove it, never had to prove it; it is presumed. Victor J. Rubino: Yes and that is true; this court in Mr. Justice Powell’s opinion dealt with the concept of Malice and said that it has two meanings in the law; one is it can be a substance of element of intent really just stand in the place of the word intent and be proved by the state. The other is, the term was used policy presumption of Perkins, who has cited at that point, describes Malice in some cases as really being a hollow concept that really it is defined by what it is not rather than what it is and one of the things it is not is provocation and the Maine courts themselves said that malice and provocation are undistinguishable; they are not separate issues. So we have described this as being two sides of the same coin. The Attorney General, in his brief in Mullaney, argued that in fact all malice, did, was to – in essence triggered the provocation issue to be proved by the defendant. Speaker: One of the fact that the malice was an element of the crime, but the state would never have to prove it. Let us assume the defendant put on no evidence whatsoever and was found guilty by the Jury. Victor J. Rubino: If the defendant put not evidence in or if evidence of provocation did not arise or in the course of the prosecution’s case then there would be no instruction at all concerning a provocation or the ability to reduce to manslaughter... Speaker: But nevertheless the malice would have been presumed Victor J. Rubino: Only because -- if we are dealing with burden to prove, malice is only relevant to the proof by the state of intent nothing else. It is simply -- it was described aptly by this court in two footnotes; one as wholly unnecessary and secondly as surplus in the law because what I have just said about the distinctions in the way malice is used as a term that it can actually stand for something to be proved or it can be merely a policy presumption that flows from proof of intent by the state. As I said, the Attorney General argued this that malice itself had no separate meaning in terms of proof and we have described this in terms of proving malice. In Maine, it is a vestigial organ. It simply is there; it was described as I said as wholly unnecessary and surplus. Provocation is the other side of malice. The court in Mullaney said it would look to the substance of the law and not the form. In New York and in Maine, intentional killing is murder unless provocation is proved by persuasion burden preponderance the evidence by the defendant and it is this that is the crucial distinction and it is this that goes to the violation of the defendant’s due process rights, Your Honor. Speaker: Mr. Rubino, may I ask you a question there? You suggested in your arguments that Mullaney might -- even if Mullaney is read very narrowly, you come within it because you come within the category of provocation Victor J. Rubino: Yes, Your Honor. Speaker: Would the same argument applied to self-defense, would that be a form of provocation, which logically Mullaney must apply to if it applies to your case? Victor J. Rubino: It could be, yes is the answer. I would argue separately on that. I would argue that self-defense in the case of unlawfulness which is an element of the crime. Also it is a question of what the other side of malice is. Perkins goes back and talks about malice as being things that it defined by what it is not; not justification, litigation, or excuse. Now, it is possible to go back to that view of malice and say that in fact where you have a justification defense, self-defense that whether or not the statue talks about it that what in effect you are asking the defendant to do, it is to negate malice in essence. So on self-defense, my answers are twofold; I think arguably it comes specifically within Mullaney, furthermore I think it might be a stronger case under Winship without necessary regard to Mullaney because it really goes to unlawfulness. Speaker: So, you are suggesting that probably, although I realize we need not necessarily -- probably the same rule would apply both kinds of provocation, even though we don’t have to do that to decide your case. Victor J. Rubino: I believe -- at least with respect to self-defense I would argue that yes, Your Honor. Finally, the New York Court of Appeals, in addition to saying that well in Maine all it had to be, the state did not have to prove intent; we said that that’s not just not so and that we have dealt with malice. The Court of Appeals also said well, extreme emotional disturbance is really only mitigation. Now, this Court Mullaney dealt with that and Mr. Justice Powell’s opinion in Pages 697-698 said that the label was not dispositive and that the degree of criminal culpability in Maine is not elsewhere, at least where murderer and manslaughter involved. At least in that situation, it was a protected interest so that we could -- talking also about degree of culpability involved in Mullaney and involved here in Patterson. The other approach of the Court of Appeals was one I have discussed in answer to a question. I would just label it here and that is that the fact that the formulation of New York’s provocation rule was broader and we say it is boarder, requires a distinction from Mullaney and we have argued first of all while it is broader that is per se no reason to allow less reliable verdict because the reasonable doubt standard is a procedural vehicle which goes to reliability. It is not a reason to allow a less reliable verdict of murder in New York than in Maine. Also that the difference is if we look at liberal rules under the heat of passion concept and what the Model Penal Code revisers or what the Model Penal Code was trying to do and what New York was trying to do, did not make that greater distinction and the distinctions don’t create unnecessary or unique hardship and that if they do there is a less onerous means of dealing with a hardship question and that is to put the production burden on the defendant. In this case the defendant clearly made a production burden. The issue was as fairly in the case as stated in the Mullaney. In fact, in Mullaney, the defendant did not take the stand to present any witnesses; the issue was raised in his statement to the police. So that the production burden is a less onerous means of dealing with the possible hardship if indeed that is a relevant criteria. Finally, I would like to say the Chief Judge Breitel, in a separate concurring opinion, did in a more general way react to Mullaney and what he was saying is that where we have newer defenses and more ameliorative defenses, we ought to possibly allow the legislature to compromise a little bit. In order to get a new defense in or new rule in, they should be allowed some leeway and our answer is the same that in fact when we are dealing with a procedural vehicle, a neutral principle that goes to reliability that is the reasonable doubt standard that we really should not look to the substance of the state law that the state should work it out and that they can work it out. We have shown in our appendix that this has been no bar at all to the adoption of the extreme emotional distress view of provocation. In Appendix A, we show the states that have done it; we show that today only New York and Connecticut required the burden only. Defendant, in fact, in two of the six counties in Connecticut that is at least at the trial court has not received appellate court is no longer true. So, I would just stress that this we do try to narrow the issue to provocation and that we stress that we are talking about a procedural vehicle, a neutral principle that does not ask about something about extreme emotional disturbance; is it good or is it bad, is it older or new, is it more liberal or more conservative. We just say should we have to reliably have it proved because otherwise we will have murder convictions in the state of New York that are less reliable than in Maine. Your Honor, I would like to reserve whatever time we have. Speaker: Very well. Mr. Finnerty. John M. Finnerty: Mr. Chief Justice and may it please the Court. I would at the outset like to point out that in the state of New York, provocation does not have the connotations that counsel has given it. I would like to return to that and also point out factually that this was not in any stretch, by any stretch of the imagination a classic love triangle situation. The parties have been separated some five to six months before this crime occurred. The wife had started an action for divorce in the state of New York at that time they have what we called a conciliation proceedings. A conciliator met with the parties to decide that there was no further necessity of those proceedings. The defendant himself had brought on a counter claim for divorce. Her attorney was really, at that point, negotiating a property settlement. In October, some over two months before the crime occurred, the wife, Roberta had told the defendant that she was going to marry the deceased after their divorce became final. He knew they were together. He lives some 200 mile away himself. He had seen them together earlier in December and in fact had assaulted both the deceased and his wife and on other occasion her father. On the day of the murder, he came over 200 miles stopping along the way to see a friend and borrowed a gun and that friend’s car. That was about 25 miles away from village of Bath where this occurred. He came to Bath, attempted to borrow another gun, the first gun being a 22 weapon introduced as the murder weapon. He attempted to borrow a shotgun in Bath. Having borrowed that he went out five miles to his wife’s parent’s house, drove by there quarter of a mile. On December 27th, it was dark out. He saw the deceased car there. He walked back, loaded the gun on the way then looked in, came through the back door, shot the deceased twice in the head, attempted to choke his wife, did choke her. Released before she lost consciousness, force the wife without a coat to take her child or infant from the house and accompany him to the car. I submit to you that the provocation aspect, if it depends on this being the classic love triangle of the situation, which appeared to him at that time, was not in the case, the jury could not have found it because the defendant knew anything he might have seen through that window. Now, in Patterson, the Court of Appeals basically said, as long as the prosecution must prove every element of the defendant’s guilt beyond a reasonable doubt, specifically that he intended to kill the victim beyond a reasonable doubt, it is not a violation of due process to require or permit, may I say, the defendant to establish that he formed that intent under the influence of extreme emotional disturbance. We do know that in New York the common-law developed differently and in New York heat of passion, those words was an affirmative element of a form of manslaughter rather than a mitigating factor to a charge of murder. And I think importantly in any analysis of Mullaney is to understand that in New York since 1829, as Judge Jason (ph) stated, New York has not allowed malice to be implied in merely from the fact of a killing. Now, this court and Mullaney said the malice aforethought and heat of passion in the Maine statute were mutually inconsistent. Therefore, I would submit if malice is conclusively presumed, which the state of Maine allowed, there could be no heat of passion. This presumption means that the prosecution does not have to prove an element of that crime beyond a reasonable doubt and this court in Mullaney by requiring the prosecution approve that really prove the absence of heat of passion is really requiring to the prosecution to prove the presence of malice which could no longer be implied. Thus, Winship or Mullaney was a clear case with the application of Winship. In New York, as the Court of Appeals pointed out, extreme emotional disturbance comes into the case only after all of the elements of the crime have been proved. Specifically, they talked at great length about the intent to kill. Rather than a situation pointed out that having proved let us say in Maine conduct a sufficient to cause serious physical injury. I believe there was a charge of that in the Mullaney case that would account to manslaughter in New York, but in the state of Maine, given the benefit of the presumption that would rise to the level of murder. In New York, the defendant is permitted to avail himself of extreme emotional disturbance only after all of the elements that is the attempt to cause a death and the causing of death have been found. In a footnote in Mullaney, this court speculated that since the facts of intent are not general elements of the crime of felonious homicide that one generic category, instead they bear on the appropriate punishment category. Under petitioner’s argument that being the state of Maine, a life sentence for any felonious homicide could have been imposed unless the defendant was able to prove that his act was not intentional or criminally reckless. I think very importantly and not as it has been argued by appellant here, Judge Jason defined, rather than the Model Penal Code or the directors, he defined what extreme emotional disturbance is in New York and he said specifically that the purpose is to permit the defendant to show that his actions were caused by a mental infirmity not rising to the level of insanity and he continued speculating that there may have been a significant mental trauma, which has affected the defendant’s mind for a substantial period of time simmering in the unknowing subconscious and then coming to the fore. Well, the provocation is not in that statute. Provocation, I would submit at the same time this statute was drafted came in to the self-defense statute which the people are required to disprove as they are insanity in the state of New York. Finally… Speaker: In this case it was incumbent upon the prosecution to prove intent. Even if the affirmative defense had been sustained, the jury would still have to found intent to convict even the manslaughter. Is that correct? John M. Finnerty: Yes, the charge to the jury specifically stated that they were not to consider unless they had found, first of all that the defendant had informed and had intended to cause the death of John Northrup. Speaker: That is intent to cause death as well. John M. Finnerty: Yes. Not intentionally firing a weapon or something like that but the intent to cause death. Speaker: That duty on the prosecution remained even if the jury had found that the defendant was under the influence of extreme emotional disturbance. John M. Finnerty: I believe the words of the charge, and certainly the words in the Court of Appeals opinion, was that his intention was formed under the influence of extreme emotional disturbance. Speaker: Right but there still would have to exist that intention to cause death. John M. Finnerty: That had to be there first or there was finding of not guilty. Out in the Maine situation, let us say, showing an intent to cause serious physical injury or in Maine it was great bodily harm. In Maine, I submit that that would have been sufficient for the prosecution to convict of murder. Here it would only be… Speaker: Since malice was presumed. John M. Finnerty: Since malice was presumed. That would only be approved sufficient for manslaughter in the State of New York not with relation to extreme emotional disturbance but intending to cause the deceased serious physical injury and death results rather than intent to kill. So, there as conceded, there is a separate criminal structure all the way down for different crimes in the State of New York. Speaker: Do you think that in New York, does extreme emotional distress -- do judges instruct on what bearing it does have on intent, if any? John M. Finnerty: I think as Judge McDonald did in this case, if the instruction is given, it must properly be given that the intent to kill, if you find it, was formed well under the influence of extreme emotional distress as it was charged in this case. Speaker: Well, is it is the effect of proving your extreme emotional distress to destroy the necessary intent element? John M. Finnerty: Not at all in New York and I believe the statute and certainly the majority in Patterson and the Court of Appeals in State of New York as specifically stated does not, intention carries all the way through intention to cause death. This court has not held that Winship requires that any shifting of the burden of proof violates due process basically from the Leland against Oregon cited in the concurring opinion in Mullaney and indeed in Rivera against Delaware decided recently for the State of Delaware does require the defendant to bear the burden of proof in an insanity case. One of those in Leland against Oregon recited in the Court’s opinion in Mullaney and the indication that it was being undermined and specifically it was stated in a concurring opinion that it was not. So therefore, if the appellant’s argument is that Winship requires any concept of shifting and I would note that some of the lower courts, at least in New York, before the Patterson opinion rather than going further and an analysis did decide that that any shifting violates due process and it’s just what Winship was trying to avoid, I submit that they are trying to perform over substance because it looked the same therefore a shifting in Winship controls. Speaker: You were just saying that as long as a shift does not take place, if the defendant can exonerate himself by proving some facts that does not violate Winship. John M. Finnerty: Precisely, the mere fact of a shift does not violate Winship. Speaker: But if you can reduce the degree of the crime or exonerate yourself entirely by proving the fact, why isn’t the absence of that factor? The operative lay and function the same as making an element of the crime. John M. Finnerty: Because I think perhaps referring to a question you asked earlier, intent to cause death and extreme emotional disturbance are not mutually inconsistent factors. Speaker: Well, that maybe so but nevertheless, the State says if you can prove 'X' the degree of crime is going to be reduced or you are going to be found innocent, you necessarily found innocent and therefore, why functionally, isn’t that the same as saying -- why should not the States have to prove the absence of facts. Why does the court make the absence of facts an element of the crime? John M. Finnerty: The absence of facts is not the element of the crime but the addition of facts changes the crime of which the proof originally sustained. I see what you're talking about were into if any fact is involved in a crime, the State must prove or disprove it to sustain the conviction of any crime but as Judge Breitel pointed out this, because of the advances in psychiatric findings and testimony, gives a benefit to a defendant and since this is, as the Court of Appeals said, a mental infirmity not rising to the level of insanity, the facts of that are not related to provocation, they are not objective things that the jury can look at what happened at the time. They are really something that’s in the defendant’s mind. Since Winship does not require due process violated every time there is a shifting, I would submit to you that mitigation itself that concept does not constitutionally required. Judge Breitel spoke to this in his concurring opinion in that and the example might be what reaction would a State legislature have to make if it were faced with a choice between requiring the prosecution to prove beyond a reasonable doubt of fact which is not required by the due process or eliminating that defense all together. I think the aspects of the affirmative defense statutes in New York and there are several of them appended to our brief, show that in many cases the defendant possesses unique knowledge, which the State has decided to allow him to use in mitigation of the charge for which the evidence would convict him. If mitigation is not constitutionally required then rather than violating the due process clause, New York has merely gone beyond the constitution, beyond what is required of the State to do. It strikes me that the appellant’s argument is to assist Court to hold that Winship requires any shifting violates due process and if that is the case, we are then into the situation of what type of scheme; is that the heat of passion on certain provocation which was not known in New York. The penal law in New York developed entirely different or is it extreme emotional disturbance in some other form and a mental infirmity not rising to the level of insanity. New York has a persuasion burden but what is then the burden of production or a persuasion burden. Appellant is really asking the Court to redraft the mitigation concept, which I believe the State of New York is trying to do so to grant benefits to persons who would otherwise stand convicted of criminal offences. Very briefly, the points made in appellant’s arguments which I will disagree with number one is that these two defenses are functionally the same; they are not in provocation now being a part of self defense in New York. It is not the question here. The question is does Winship require that shifting violates due process and does Winship require that the defendant have no benefit from mitigation or that the State can require him to bear a rather unique burden of proof here. Speaker: Do you have anything further, Mr. Rubino? Victor J. Rubino: Yes, I would like to point out on this business of intent in New York and Maine operates the same. In New York, you must prove intent and in Maine, the District Attorney must prove intent that provocation factor does not negate intent neither New York or Maine. I find it ironic, if you look at the briefs in Mullaney, it was the State arguing that malice was really of no meaning in that provocation distinguishes punishment categories. The State said the malice operated solely to trigger the provocation issue. The brief of the Attorney General in Maine just says very clearly that a specific subjective intent to kill is required and so that there are no differences in the way that the cases of murder have to be proved in either New York or Maine. Finally, I would like to stress that we are not talking about the substance of State laws that we are not saying that of Mullaney or Winship require State to make any particular facts or germane. Just as in Leland, one other issue was not to make the irresistible impulse test of insanity. We are not trying to argue that a State must make a particular factor germane but if it does make that factor germane to a distinction between murder and manslaughter with significant penalty differentials and a significant differential in stigma that was discussed in Mullaney then it must prove that fact. Speaker: Would you say the same is true about any fact that determines whether there is any crime at all or not? Victor J. Rubino: I don’t think Mullaney reaches that Your Honor, I would say that an argument… Speaker: But you seemed to… Victor J. Rubino: I believe that. Speaker: Your approach here seems to encompass that. Victor J. Rubino: If my approach encompasses it, it’s because I believe that Mullaney encompasses it, Your Honor. All I'm saying is that for the provocation issue particularly, we don’t have to decide whether Mullaney goes beyond, it might. I feel it does in certain defenses. I think however that each defense and each factor must be looked at independently, just as a question was asked about self defense. There are enormous number of issues this case in preparing for, there is a course in the criminal law and one must examine each concept for its effect on stigma, on sentencing differential and on peculiar, let’s say, hardship of proof, whether or not it’s really a policy defense like the minority view of entrapment is and whether if it’s simply a policy that we’re talking about whether that would have to be proved by the State. Speaker: Well, all of criminal law represents State policy, isn’t it? I think it’s all policy, 42.18 I suppose not to have any criminal law. Victor J. Rubino: Yes, I believe that’s true. When I said policy, I mean, I’ll give an example. In entrapment, a minority view says that we’re only looking to police conduct and that therefore, it really does not go to whether the defendant was predisposed, it doesn’t go to whether the defendant intentionally committed the crime. It’s a policy that we have superimposed and that need not be dealt with in the trial phase at all, that could be a pretrial hearing. That’s what I meant by the term “policy”. There is also an abandonment, possibly a policy that really what we want to do is encourage abandonment, i.e. really not excusing the defendant and that you might make a distinction depending on what the State itself said about abandonment, not what this Court would in anyway tell the State what to do. Speaker: Well, thank you. This case is submitted.

John G. Roberts, Jr.: We'll hear argument first this morning in Case 15-1194 Packingham v. North Carolina. Mr. Goldberg. David T. Goldberg: Mr. Chief Justice, and may it please the Court: There are three principal features of North Carolina's law that make it a stark abridgement of the Freedom of Speech. First, Section 202.5 reaches vast swaths of core First Amendment activity that is totally unrelated to the government's preventative purpose. Mr. Packingham is not accused of communicating with or viewing the profile of a minor. He violated Section 202.5 by speaking to his friends and family about his experience in traffic court. And if today he were to view or respond to any of the thousands of Twitter messages about his case in this Court, that would be a felony. Second, the law does not operate in some sleepy First Amendment quarter. It operates and forbids speech on the very platforms on which Americans today are most likely to communicate, to organize for social change, and to petition their government. Third, Section 202.5 -- Anthony M. Kennedy: Please go ahead. Please go ahead. David T. Goldberg: -- is a criminal law, Your Honor, that imposes punishment for protected First Amendment activity without any regard to individual culpability or lack of culpability. Anthony M. Kennedy: Could a State impose this restriction as a condition of parole? David T. Goldberg: Your Honor, I think they have much more authority to impose things as a condition of parole, and -- and States do this all the time, and they -- they -- they limit people's First Amendment rights. I think that they -- if you had something that was as sweeping as this, for life, for anybody who had committed a sex offense, I don't think they could do that. Ruth Bader Ginsburg: But -- Elena Kagan: Didn't -- Ruth Bader Ginsburg: But they are -- John G. Roberts, Jr.: Justice Ginsburg. Ruth Bader Ginsburg: The most fundamental right is taken away from ex -- fundamentals by some -- some States prohibit ex-felons from voting. Some States in the Federal government prohibits keeping and bearing arms. Those are constitutional rights. David T. Goldberg: Right, Your Honor. So both of those rights are different from the First Amendment. They are equally fundamental, but they are different. So in the case of voting, North Carolina does not take away -- North Carolina draws the line at people who have completed their parole, their period of supervised release. But in Richardson v. Ramirez, the Court looked to the text and history and tradition and said in Section 2 of the Fourteenth Amendment there was affirmative sanction for felon disenfranchisement. If you look at that same section, which dealt with the people who rebelled in the Civil War, you didn't need to restore their First Amendment rights. And -- and with the Second Amendment, when somebody is convicted of a crime, they immediately lose their Second Amendment rights. They don't lose their First Amendment rights. So in the Simon & Schuster case, this Court vindicated the rights of somebody who was a serial killer who wanted to write from prison, where he was serving a life sentence for murder, about his experience. So -- John G. Roberts, Jr.: It's a little difficult to -- you said look at the text and history. We don't have a lot of history here concerning access to websites and all the sort of things we're dealing with here. So I don't think that's a very useful guide. David T. Goldberg: I agree, Your Honor. But I think when you look at what -- when we talk about the history, the history is there isn't a tradition or a history of taking away people's First Amendment rights. When the Court said First Amendment rights are inalienable, it has -- meaning when people -- John G. Roberts, Jr.: My point is, though, you don't have a lot of history of having -- having such sites or access where they can provide broad access to minors of the sort that is problematic with respect to this individual. David T. Goldberg: Well, I don't disagree -- we know as with violent video games, as with any manner of new technologies the Court has confronted, there isn't -- there isn't a framing era or -- or reconstruction-era analogue. But there is no history when you talk about all of the things that the State historically has restricted, they never said you lose your right to publish a newspaper because you've been convicted -- Samuel A. Alito, Jr.: Suppose we try to translate this into terms that would be familiar at the time of the adoption of the First Amendment. So suppose the State enacted a law prohibiting anyone convicted of kidnapping children from visiting a nursery school. Would -- would that be a violation of the First Amendment? David T. Goldberg: I don't think so, Your Honor. Obviously, at the framing, the First Amendment didn't apply to the states. But the -- Samuel A. Alito, Jr.: All right. Suppose it was -- David T. Goldberg: All right. Samuel A. Alito, Jr.: -- in the District of Columbia. David T. Goldberg: So, Your Honor, the -- a kindergarten -- first of all, I don't know that there's a First Amendment right to visit a kindergarten. And that's fundamental here. This law only applies in the places where everything that happens is a First Amendment activity, whether it's receiving information, speaking, associating, petitioning. Ruth Bader Ginsburg: Suppose -- David T. Goldberg: When some -- Ruth Bader Ginsburg: Suppose the law simply said that someone who was a sex offender could not communicate with a minor on social media. Would you agree that that would be constitutional? David T. Goldberg: Well, I think my first answer is that it would be much less restrictive, and that shows why this law is unconstitutional; right? And that's exactly what the prosecutor -- Ruth Bader Ginsburg: Well -- David T. Goldberg: If you look at the -- Ruth Bader Ginsburg: Well, there's a -- there's a concern here -- David T. Goldberg: Sure. Ruth Bader Ginsburg: -- for the safety of children. So I'm asking you -- yes, of course, it's less restrictive. Would it be constitutional? David T. Goldberg: I think -- Ruth Bader Ginsburg: -- and no communication with a minor? David T. Goldberg: So I -- I think it probably would be, Your Honor. I think that the difference here is if you take the test, the narrow-tailoring test, which is fundamentally a -- this Court had said in -- in Ward, a quantitative test, and you say, what percentage of what you suppress implicates the interest? When you're talking about communicating with minors or viewing the pages of minors, that is going to the heartland of the protective interests that the State is asserting. But here, everything that -- that they're suppressing is -- as we've said, it's indifferent as to whether it's core speech. Obviously, Petitioner was convicted for saying, "Thank you, Jesus. God is good" about a parking ticket to an audience. Samuel A. Alito, Jr.: But you think that even as narrowly tailored as Justice Ginsburg's example, so it would be a crime for a convicted sex offender -- or let's say someone who was convicted previously of committing a sex offense using the Internet from contacting on the Internet a person who is known -- known by that person to be a minor without the consent of the parents of the minor? That would be a violation of the First Amendment? David T. Goldberg: No. I -- I -- I said I think that would be constitutional, Your Honor. Samuel A. Alito, Jr.: Oh, I thought you said it wouldn't be. David T. Goldberg: I'm sorry if I -- if I wasn't clear about that. I -- I would still say there are narrow-tailoring questions. I'm not here to say that particular hypothetical law, that one of the concerns with this law that I think you've -- you've handled by narrowing it to a subset of people, this applies to everybody on the registry, and it applies in a -- essentially on a statistical basis on the theory that as a collective, they have a higher rate of recidivism than people on average. And I think this Court's First Amendment cases say that's a very problematic assumption to just -- and especially with a population like this that is so heterogeneous and that is constantly being evaluated on an individualized basis. It's not clear to me why you would take people's First Amendment rights away for life if the theory -- Sonia Sotomayor: What do you think your best argument is? Is this statute too overbroad? Does it fail scrutiny, whatever level we adopt? What's the -- David T. Goldberg: Well, I -- I think -- Sonia Sotomayor: What do you think -- I know you say all of those things. David T. Goldberg: Yes. All of the above, Your Honor. And this is not a case where the level of scrutiny is going to make a difference. Anthony M. Kennedy: Elizabeth Barrett Browning, "Let me count the ways." David T. Goldberg: Exactly, Your Honor. So -- Anthony M. Kennedy: But -- but let me ask you: Suppose there were an app -- a program in which officers could monitor your -- your video and your -- and your -- and your cyber -- and your cyber equipment and disclose if you are communicating with minors. Could that be a law that every -- that every convicted person has to consent to that -- to that app and to that surveillance? David T. Goldberg: Well, I think that goes to the question of -- which you don't need to answer and I want to answer Justice Sotomayor's question as well in this case. What does the status of being a registrant mean in terms of somebody's constitutional rights? I -- I think that is clearly a much less restrictive from a First Amendment perspective, because then, again, people like Mr. Packingham, anybody who wants to do the things that are harmless and fully protected is able to do it. People have -- and it is -- is effective detection and deterrent. So from a First Amendment perspective, that's a home run. There is a Fourth Amendment question there, which is, ordinarily, once you're done with supervised release, you have full -- Anthony M. Kennedy: First Amendment for home run, who hit the home run? David T. Goldberg: I'm saying for the State, Your Honor. I think it does everything. It's perfectly tailored in a certain sense, except for the State has a sense of -- of what you may be up to, which is a -- a concern. But, essentially, they're able to deter people, detect people. And the people who want to speak and exercise their core First Amendment rights -- Elena Kagan: Well, I take it -- David T. Goldberg: -- have no problem whatsoever. Elena Kagan: I take it, Mr. Goldberg, that a part of what the State is saying here is that it doesn't have the capacity to do that. It doesn't have the capacity to check message-by-message or click-by-click what a person is doing. And in the absence of that, that some kind of prophylactic remedy is needed. And that's not unheard of in First Amendment law. I mean, if you think of a case like Burson, which is the 50 feet with -- David T. Goldberg: Sure. Elena Kagan: -- in the polling places, that's kind of a prophylactic rule. So why wouldn't the same be appropriate here? David T. Goldberg: Well -- well, Your Honor, we -- obviously, there are times when prophylactic rules are permissible under the First Amendment. Mr. Packingham, when he was convicted, got a condition that said you shall not have any contact with the specific victim of this crime. That would -- otherwise, if that were applied to you or me, that would be a -- an abridgement of our freedom of speech. So there's no general rule. The Court has said repeatedly that you should be suspicious of prophylactic rules because, ordinarily, you don't want to -- you want to allow people to speak. But even as we've been talking about rules like -- that are focused on teenagers on the Internet and having specific contact with them, those are prophylactic rules too. So I don't think it's -- the question is, can you do it at the first step? And I think -- Stephen G. Breyer: What is -- what was your answer? Which I forget. A statute prohibits a convicted sex offender from being -- spending more than five minutes at a children's playground. Is that constitutional or not? David T. Goldberg: I -- I think that's constitutional because -- Stephen G. Breyer: All right. David T. Goldberg: I -- I don't -- Stephen G. Breyer: If that's constitutional, instead of what most of the briefs do, is interpret the statute as broadly as possible, this is a facial challenge. What about trying to interpret it as narrowly as possible? And as narrowly as possible, it seems to me a necessary condition is that a violator cannot go to a site that facilitates the social introduction between two or more persons, and these are -- these are children they're talking about, I guess -- for two or more persons for the purposes of friendship, meeting other persons, or information exchanges. So we have to say "or related information exchanges." And now we have a definition that sounds as if they're talking about dating sites, or it sounds as if they're talking about related play group sites, if you take younger children. And is it possible to read it that way? And if you do read it that way, is it constitutional? David T. Goldberg: Well, Your Honor, a couple points. The-- the first answer to the playground, we -- I think you start with, what is the First Amendment right that is being abridged? I'm not sure that I see a First Amendment right being abridged. Stephen G. Breyer: Yeah. But that's what I -- I wanted to be -- I wanted to get your answer, and I think I have that. David T. Goldberg: And then -- Stephen G. Breyer: But I'm really interested in the narrow possibility of interpreting it narrowly, as I said. And on that basis, it's facially constitutional, though it could be applied unconstitutionally. That's what I want your answer to. David T. Goldberg: So, Your Honor, this is a criminal case. It doesn't arise as a civil suit in district court. This is first and foremost an as-applied challenge because the relief that we're seeking is to overturn the -- Stephen G. Breyer: You're not -- you're not attacking the statute. You're only attacking it applied to your client? David T. Goldberg: In a criminal case, you -- the Court has the power to say -- and I think it's appropriate in this case -- that this -- the problem here is the problem for every application. And that's what we've argued. Stephen G. Breyer: Okay. David T. Goldberg: And clearly -- Stephen G. Breyer: That's -- then we're back to my question. So I'm treating it as an as-applied challenge. I don't want to just repeat the question. David T. Goldberg: Right. Stephen G. Breyer: I want to get your answer to the question. David T. Goldberg: Right. So -- so the answer is, Your Honor, that this -- that narrow construction, I'm not sure that -- that's possible, and that narrow construction isn't going to be -- in this case, make any difference, because as I understand your hypothetical statute or construction, that is not -- Mr. Packingham did not violate the law, but -- Stephen G. Breyer: Wait. Don't you see, all I'm doing is reading one word before information exchange. And the word I'm reading is related information exchange. And as so interpreted, that clause, too, which you're much more familiar with than I am -- David T. Goldberg: Sure. Stephen G. Breyer: -- seems to be talking about dating sites or the lower age level equivalent. David T. Goldberg: I don't -- Stephen G. Breyer: If -- if that's -- it does what it says, facilities the social introduction between two or more persons for the purposes of friendship, meeting other persons or related information exchanges. I've now got it a social dating or equivalent site. David T. Goldberg: Right. Stephen G. Breyer: I think I can say that. Now, if I say that, is it constitutional? That's what I'm trying to get your answer to. David T. Goldberg: If -- if it were limited to dating sites, I'm assuming that it is constitutional, Your Honor. I don't think the State has ever said that this is about dating sites. They -- they say there's a category of -- Ruth Bader Ginsburg: Well, they couldn't because of your case. David T. Goldberg: Right. Exactly. Ruth Bader Ginsburg: So your case involved boasting about getting off a traffic ticket. David T. Goldberg: Right. So -- so that -- that is my first and most important point, that Mr. Packingham was not on a dating site. Stephen G. Breyer: So then the answer to this would be they have not applied it that way here, and given the way they've applied it here, they can't do that. David T. Goldberg: I don't -- Stephen G. Breyer: Now, we're going to have 40 other cases involved. David T. Goldberg: I don't think they've ever applied it. I think the main focus -- dating sites tend to have age restrictions that go -- apply only to adults and so I think it's their position that those are excluded from this. I -- they're -- I think the State's position, and you can hear from them, they've never proposed that as a construction because they want to go after these -- these sites, the classic social-networking sites. Samuel A. Alito, Jr.: Yeah, the -- the interpretation that Justice Breyer -- the -- the language that Justice Breyer is referring to and other language in this statute, I think, could, for the purpose of avoiding First Amendment problems, be limited to core social networking sites, including Facebook and things like Facebook, Google Plus, that sort of thing, and excluding a lot of the other sites that the electronic frontier says are included, like the New York Times and Betty Crocker and things like that. So it would be limited just to social networking sites. Would you agree that it could be read at -- using constitutional avoidance, it could be narrowed to at least those? David T. Goldberg: So honestly, Your Honor, I'm not sure that it can, but it's very important for the constitutional question that that is irrelevant. And this goes back to Justice Sotomayor's question, which was what is -- how do we win this case? What is the -- the -- what is the biggest problem with this statute? And the biggest problem is -- Samuel A. Alito, Jr.: Well, just to put it in -- in context. It -- it is important for purposes of an as-applied challenge because if -- what your -- what your client used was a social -- was Facebook, right? David T. Goldberg: Right. Samuel A. Alito, Jr.: Okay. David T. Goldberg: So -- Samuel A. Alito, Jr.: Even if it were limited to -- to those -- David T. Goldberg: Right. Samuel A. Alito, Jr.: You would say it's unconstitutional. David T. Goldberg: Our -- our position -- and for the very reason we've talked about, which is that this -- just like the law in the Jews For Jesus airport case from Los Angeles that said no First Amendment activity in this place, this is a law that says no First Amendment activity, and it says it indiscriminate, so -- Sonia Sotomayor: Counsel, I mean, one of my problems with all of these sites today is that none of them are purely -- or very few of them are purely anything anymore. David T. Goldberg: Right. Sonia Sotomayor: Take something like LinkedIn, which many, many people in our society today are looking for jobs there, but high school students are permitted to look for jobs and to post their data, personal data on that site. So, is that traditional social media or not? David T. Goldberg: I -- I think the State says that it is because it meets the definition. I just want to get back to Justice Alito's question -- Sonia Sotomayor: But that's my point, which is -- I'm -- Facebook, many people, many businesses are using it for commercial advertising. David T. Goldberg: Right. And -- and that's very true and -- and there was another defendant who was prosecuted alongside Mr. Packingham who was an IT person, Mr. Christian Johnson, and he lost his job because his employer said it's impossible for you to do your job if you can't get on these sites, so -- Sonia Sotomayor: Even if you don't -- Anthony M. Kennedy: Well, all of -- all of these questions implicate what Justice Sotomayor asked earlier and I and others interrupted you. What is the category that we use? If -- if we rule for you, we say this statute is a violation of the First Amendment because, what -- what are -- what are the basic rules or the basic -- David T. Goldberg: So -- so the basic rules -- Anthony M. Kennedy: -- doctrinal choices you offer us to say why this is unconstitutional? David T. Goldberg: Sure. So the most straightforward, basic doctrinal basis to say it's not narrowly tailored and stop there or overbroad, which is the flip side. Sometimes overbroad is a -- is a confusing word because it has this third-party standing dimension. In the airport case, it was used to say this goes way too far because it prohibits lots of First Amendment speech. So if you just take the word narrow tailoring test or you take the test in Frisby, in Taxpayers v. Vincent where you say does this -- is the theory of this law that it restricts speech on the possibility that that will lead to some other harm, that inherently is not going to be a narrowly tailored law. Or you can look at it the way Weir did which -- which said let's look at how much of -- is -- is protected activity is suppressed, how much of that implicates this purpose and, again, that's a really straightforward way. Now that -- we think, and our brief argues that there are multiple prongs. If you go through every prong of the word "analysis," this is a really stark case in terms of alternative channels. This forecloses, as I said, some of the most important channels of communication in our society. So -- so you could do that, you could say that too. But what -- what the Court said in McCullen is once you get -- if it's not narrowly tailored, that then it's unconstitutional and I don't see -- John G. Roberts, Jr.: Well, one of the -- I mean, under narrow tailoring, I think it's -- it's incumbent upon you to come up with a narrow -- more narrowly tailored alternative. So if you wanted to -- you're in the North Carolina legislature and you're told you can't do this, what would you do as the most effective alternative? David T. Goldberg: Well -- well, Your Honor, I -- I think the opinion in McCullen said it was not incumbent on the challenger to come up with the alternative, but here it -- it said the State has to show that it seriously considered alternatives, but -- Ruth Bader Ginsburg: What -- I thought you agreed with me earlier that North Carolina could ban communicating with a minor -- David T. Goldberg: Right. Ruth Bader Ginsburg: -- via social media. David T. Goldberg: Right. So I think that -- that -- John G. Roberts, Jr.: Well, I guess in response to that is, well, how do you know that it's -- that it's a minor or -- or how is the -- I -- I mean, I assume that minors can put on -- they -- they don't have to have their age in their e-mail. They don't have to communicate it in the text of the -- David T. Goldberg: Right. So -- John G. Roberts, Jr.: -- message that's put on the site. So I -- I think the response might be that that's not terribly effective. David T. Goldberg: So -- so two -- two answers to that. First of all, if you look at page 11 of the blue brief where -- where there is the closing argument by the -- the DA in this case, the DA lays out what -- again, this is not a case where we've come up with some exotic theory about how you could narrow this law. And the DA says to the jury, in order to convict, you might not like this law, you might prefer a law that says don't have specific contact on Facebook with minor children or a law that says don't say specific things that might entrap teenagers, and this law doesn't say that. It doesn't. But even if you don't agree with it, if you don't like it, the law says you can't access. So -- John G. Roberts, Jr.: Maybe he doesn't say it because it wouldn't work. He doesn't say that the law would be perfectly fine. He says here's an alternative you might like. Maybe the legislature didn't enact it because it made the -- concluded that it wouldn't be effective. David T. Goldberg: Well, Your Honor, I -- I think it would be effective or ineffective exactly the same way this law is effective or ineffective. The -- the premise -- one of the things that the State argues about effectiveness is that this law will prevent people from doing something. The only way it prevents people is by punishing them and deterring them. It -- it doesn't enable the State to find people, and -- and as Justice Kennedy was asking about monitoring, that's a way that you can actually detect what people are up to. The nature of this law is that it finds -- it's most likely to find the people who are doing nothing wrong, who have -- are doing innocent things. And if you envision the subcategory of predators who are using the -- these sites, they -- and lurking on these sites, they are going to do their very best to hide their identity. Sonia Sotomayor: Mr. -- Mr. Goldberg, why was your client using an alias? David T. Goldberg: I -- I think -- Sonia Sotomayor: If he -- if he wasn't lurking or otherwise trying to stay hidden? David T. Goldberg: So, Your Honor, he wasn't lurking. I don't think there's any basis for saying he was lurking because they then looked at his hard drive. They got the information from Facebook. There are crimes that they could have charged him with, and presumably, if he was doing something that was a serious violation involving teenagers, he would have been prosecuted for something like that. So the alias that he was using was -- it -- and I'll put that in -- in scare quotes -- was his name that he goes by and his middle name. And his -- his page had his picture, and he had a profile that linked to his father whose name is Lester G. Packingham, Senior. And so the officer in this case was able to find him in about two seconds. And obviously, he was posting publicly about something that is -- about religion and his experience at court that -- Sonia Sotomayor: Go back to Justice Kennedy's question, if you would, which is, is there a capacity to determine the age of a user; meaning, is there a way for the State to be able to track whether or not a potential defendant is actually in communication with a minor. David T. Goldberg: Well, two things, Your Honor. This statute -- the State's description of the statute has always -- they already have a law about communicating using the Internet with a minor. So they already -- that's -- that's a different law. Their theory of this case is about the power to gather information. The second thing is that people's ages are verified by Facebook. And in a prosecution, if the assumption was that the person was younger than 18, they would then be able to verify that by getting the records and finding out. If the Court has no further questions, I'd like to reserve the balance of my time. John G. Roberts, Jr.: Thank you, counsel. Mr. Montgomery. Robert C. Montgomery: Mr. Chief Justice, and may it please the Court: For many years, North Carolina, like other States, had laws prohibiting sex offenders from being at physical places where children congregate; schools, playgrounds, day cares, and parks. In 2008, North Carolina decided to prohibit sex offenders from being at virtual places where children congregate online; specifically, commercial social networking websites. North Carolina passed Section 202.5 to cover the people most likely to sexually assault children. Unlike some of the other alternatives -- or unlike the alternatives proposed, this law is enforceable and effective. One of the things that was said -- Elena Kagan: Social networking, it includes Facebook, obviously; it includes LinkedIn; it includes Twitter; is that right? Robert C. Montgomery: That -- that would be correct. Elena Kagan: So -- so a -- so a person in this situation, for example, cannot go onto the President's Twitter account to find out what the President is saying today? Robert C. Montgomery: That -- that's correct, Your Honor. Elena Kagan: Not only the President. I mean, we're sort of aware of it because the President now uses Twitter. But in fact, everybody uses Twitter. All 50 governors, all 100 senators, every member of the House has a Twitter account. So this has become a crucial -- crucially important channel of political communication. And a person couldn't go onto those sites and find out what these members of our government are thinking or saying or doing; is that right? Robert C. Montgomery: That's right. However, there are alternatives. Usually those congressmen also have their own web page. As far as Twitter -- Anthony M. Kennedy: Well, it seems to me, I don't know if -- that we ever did have a public square, but assuming we had a public square a hundred years ago, could you say that this person couldn't go into the public square? The -- the sites that Justice Kagan has described and their utility and their -- and their -- extent of their coverage are -- are greater than the communication you could ever had, even in the paradigm of public square. Robert C. Montgomery: In essence, States have said that sex offenders can't go into the public square; that they can't go into parks or they can't go into -- can't go near playgrounds. Stephen G. Breyer: Maybe those have the same problem. I mean, why -- why? Why are we trying to limit that? People all the time want to speak to 18-year-olds, 17-year-olds. It doesn't -- it doesn't limit this even to those that have sex problems with children. All right? This is -- this is everybody who's ever had a sex offense. And you're not -- you're, I take it, you're rejecting any effort that I might have hypothetically made to narrow the statute, and you're saying, hey, nowhere. Nowhere, really, because children are everywhere. And I don't -- what is the difference? I want to go to a park and I want to talk to 16-year-olds about helping get some petition drives. You know, I can make endless examples. So what's the basis here? The State has a reason? Yeah, it does. Does it limit free speech? Dramatically. Are there other, less restrictive ways of doing it? We're not sure, but we think probably, as you've mentioned some. Okay. End of case, right? Robert C. Montgomery: No. No. Our position is there are not any enforceable least-restrictive ways for this particular interest that the State has -- Stephen G. Breyer: What about all the orders -- about all the ways you just listed that they have all the statutes would say you can't approach children and say certain things. You remember you started that way. Robert C. Montgomery: Certainly. And -- and those are the -- that's in the physical world that they can't be approached. Stephen G. Breyer: What's the difference? Robert C. Montgomery: Well, there really is no big difference. And that's why in the virtual world, they shouldn't be allowed to approach either. And the fact is, the Department of Justice has reported that there's a 50 to 60 percent crossover from adult victim rapists to children. So all of them, no matter what -- who the victim was, are capable of offending against children. So that's why it would apply to everyone. John G. Roberts, Jr.: Are you able to find out from the site operators, from Facebook, who one of the registered offenders is communicating with? Robert C. Montgomery: There -- John G. Roberts, Jr.: To the extent -- Robert C. Montgomery: -- there may be some instances in which that would happen, but most of these sites have an Instant Messenger feature or some kind of messenger feature which doesn't show up. In other words, a police officer couldn't go to the website and just look at it and necessarily know who was being communicated with. Ruth Bader Ginsburg: I thought that Facebook didn't allow -- didn't allow access by former sex offenders. Robert C. Montgomery: That -- that's correct, Justice Ginsburg. There is a prohibition on Facebook and on some of the other major commercial sites -- Ruth Bader Ginsburg: But that's Facebook's choice, it's not the State. Robert C. Montgomery: That's correct. And certainly the State has implemented this law to be a deterrent so that these offenders will not go on Facebook, whereas that -- the deterrent effect of Facebook having the policy is not the same thing. So the State has made a decision, particularly in the area of information gathering, because these offenders can go to these sites and can quietly lurk and find out information. And there are links. The -- the crucial factor that the State believes that narrows the statute is that the site must have links to other users' profile pages. Elena Kagan: But -- but -- I mean, yes, that narrows it. It -- it takes the nytimes.com out of the statute, but it doesn't take the sites that people use today, as I suggested -- whether it's Twitter or whether it's Facebook -- which have become incredibly important parts of our political culture, of our religious culture. If you ask, there are surveys that say how many Americans have communicated their faith on social networking sites in the -- in the past week, and it turns out that one in five. That's about 50 million Americans use this for religious community purposes. So whether it's political community, whether it's religious community, I mean, these sites have become embedded in our culture as ways to communicate and ways to exercise our constitutional rights, haven't they? Robert C. Montgomery: There -- there are other alternatives, still. This is a part of the Internet, but it's not the entire Internet that is being taken away from these offenders. They can still have their own blog. They can read blogs. They can do podcasts. They can go to nytimes.com. They can do other things to communicate with people. This does not prohibit sites that have discretely just e-mail or Instant Messenger or message boards. So there are other alternatives. And one point to make also about what's -- the Petitioner did in this case, he was arrested for accessing Facebook, not for what he wrote on Facebook. So he did post something on Facebook, but this law prevented him from accessing Facebook. Elena Kagan: But you're not making a conduct speech distinction, are you? I thought you had dropped that in your briefs. Robert C. Montgomery: No. No. That's -- that's correct, Your Honor, although the North Carolina Supreme Court certainly recognized that there was a conduct component to this, just like going to a park or going to a playground. But it is speech, that's correct. But the fact that he made a religious statement, it wasn't specifically because of that that he was arrested and charged and convicted for this offense. But yes, it is speech that is implicated. Ruth Bader Ginsburg: How was -- how was he apprehended? Robert C. Montgomery: The -- the officer went to his own Facebook account and had a -- had a list of sex offenders that he was searching for using their names or aliases or family members. And he was able to find Mr. Packingham's father and then was able to see Mr. Packingham -- even though he was using an alias -- was able to see his picture and know that it was him, and he was on the list of sex offenders. So that's the way that he did this. He apparently found six others or so in this session that were sex offenders on Facebook. Stephen G. Breyer: Can you have a statute says convicted swindlers cannot go on Facebook -- or cannot go on the Internet on sites that tell people -- that tell people where to gather to discuss money? Robert C. Montgomery: I'm not sure about that -- Stephen G. Breyer: I mean, I can multiply these examples. Convicted -- Robert C. Montgomery: Certainly. Stephen G. Breyer: We can think of -- you know, pretty soon, you're going to have everybody convicted of different things not being able to go anywhere and discuss anything. Robert C. Montgomery: Well -- Stephen G. Breyer: I exaggerate. Let's just stick with the -- we can't have convicted swindlers going on Facebook to discuss money. Robert C. Montgomery: Well, swindlers are not sex offenders, and that's -- Stephen G. Breyer: Does that make a difference? Robert C. Montgomery: Yes. Stephen G. Breyer: Why? Robert C. Montgomery: It does make a difference. Stephen G. Breyer: Why? Robert C. Montgomery: Sex offenders have -- have been -- there have been civil disabilities applied to sex offenders and to other felons, but certainly to sex offenders, such as the registry itself. As this Court in Smith v. Doe said that the registry was -- was constitutional. And lower courts have found that the restrictions on going to parks or playgrounds and those sorts of places are also constitutional. These are some of the worst criminals who have abused children and -- and others and committed sex offenses. And this Court has recognized that they have a high rate of recidivism and are very likely to do this again. Even as late as 20 years from when they are released, they may recidivate. Elena Kagan: Mr. -- Mr. Montgomery, can I ask you a question that has to do with the law's exemptions? Because it just confused me when I was reading it. It seems that some -- some of what's exempted by the law seems, I have to say, some of the most dangerous stuff. So you exempt any website that provides only a chat room or only photo sharing. So why is that? Because if I would have said, like, where the most dangerous activity takes place, it's in chat rooms and via photo sharing. Robert C. Montgomery: The -- the legislature in North Carolina wanted to have some narrow tailoring to this -- to this statute. So the fact that it eliminates or exempts some of those things is really a virtue, not a vice. Those are pure forms of communication. Yes -- Elena Kagan: It just seems to exempt the stuff that's most easily used to -- to do exactly the things that this statute is meant to prevent. Robert C. Montgomery: Well, this statute is -- is meant to prevent at its core harvesting of information anonymously, which is not something you find as much when you're talking about chat rooms or -- or e-mail or those sorts of things. Typically, there's not the transparent amount of information or the anonymity that comes with the social networking website in which you can click on a link and go find out information about someone that you don't know. Ruth Bader Ginsburg: Could -- Robert C. Montgomery: And so -- Ruth Bader Ginsburg: -- North Carolina -- could North Carolina bar those as well? Bar the photo sharing and the chat room? Robert C. Montgomery: The problem then may be that it would not be as narrowly tailored as it should be. Ruth Bader Ginsburg: Then what did you mean in your brief when you said that North Carolina can proceed one step at a time, that it could take further steps consistent with constitutional -- Robert C. Montgomery: Well, certainly, there are other steps that may be taken, and perhaps that would be one. But -- but at this point, the -- Ruth Bader Ginsburg: Well, what did you mean in your brief, then, when you said North Carolina could take other steps, additional steps? Robert C. Montgomery: There -- there are -- there are certainly other laws that could be put in place to try to prevent sex offenders from finding out information. Elena Kagan: When you just said to Justice Ginsburg, well, maybe that would be unconstitutional if they included these things that are instead exempted, so you mean that there's a constitutional right to use Snapchat, but not to use Twitter? Robert C. Montgomery: I'm not sure I understand. That -- that Snapchat -- Snapchat and Twitter seem to be included under this statute. Elena Kagan: Well, I would have -- I would have thought that Snapchat is -- is -- maybe I have it wrong. I'm not any expert on this. But isn't Snapchat photo sharing? Robert C. Montgomery: I believe that is some of it. I don't -- Elena Kagan: Yeah. So that falls under the exemption; right? So you can use Snapchat, but you can't use Twitter? Robert C. Montgomery: Well, Snapchat, as I understand it, you don't get the level of information that you get from something else. Because Twitter is -- you can find out much more information than you could from however many seconds of video or pictures or whatever you get with Snapchat. So I think it's a -- it was a decision to go for the sites in which the most anonymous information could be collected by an offender. And that offender then would use that to groom the child or otherwise use that information to go meet the child and begin a relationship so that the child -- Stephen G. Breyer: Look -- look: The case books are filled with cases where to allow certain groups of people to speak is actually dangerous. Like the communists under -- you know, years ago, they said it was a good idea to have a revolution. And all kinds of people have said dangerous things. Here, you take a group of people who've done something wrong, been fully punished, and you're saying that they might say something to somebody which would be dangerous. And you're right; it might be. On the other hand, your remedy from that is to cut off their speech. Now, I suspect my law clerks, in the space of half an hour, would find many cases that put it the level of generality I've just put at, say it is hornbook law that you can't. You can't unless there is at least a clear and present danger, you know, homes. There are lots of qualifications. So why don't you tell me when my law clerks are going to look all these up -- and I think I have a few in mind -- what case we should look up to be sure we get the opposite, which is what you're arguing, I think. Robert C. Montgomery: This case is much more like Burson v. Freeman, in which this Court said that this 100-foot buffer zone, that a campaign-free zone at a voting place was permissible. And that was suppressing political speech. Anthony M. Kennedy: I -- I think that's -- does not help you at -- at all. (Laughter.) Anthony M. Kennedy: That was -- number one, it was applied to everyone. It was 100 yards. You could have all the political speech in the world outside the -- was it 100 yards or 100 feet, whatever it was. It seems to me that -- do you have -- do you have any better case than that? (Laughter.) Robert C. Montgomery: Well, the only -- the reason -- Anthony M. Kennedy: If you cite Burson, I think -- I think you lose. Robert C. Montgomery: The reason that that case is the one that I mentioned is because the rationale for that was that these kinds of crimes that happened in that zone often go undetected -- Elena Kagan: Mr. Montgomery, I agree with you. That's your closest case. It's the one that I asked Mr. Goldberg about, because it's the only case that I know of where we've permitted a prophylactic rule where we've said not all conduct will have these dangerous effects, but we don't exactly know how to separate out the dangerous -- dangerous speech from the not-dangerous speech, so we're going to have a prophylactic rule. That is like one out of a zillion First Amendment cases that we've decided in our history. And as Justice Kennedy says, there are many reasons to think it's distinguishable from this one. Robert C. Montgomery: Well, the fact that it applied to all in Burson, I believe, makes our case a better case because it doesn't apply to all. It applies to sex offenders who have committed crimes, who have shown that they cannot conform to the law and are likely to be recidivists. So the fact that it's a narrower group is not -- does not make it more problematic, but makes it -- makes it better than Burson. Anthony M. Kennedy: Well, that was -- that was not the rationale of Burson v. Freeman. Under that rationale, you -- you could have said that it applies only to members of a political party and it would have been narrower. That would make it worse. The Petitioner here is saying you are singling me out and saying that I can't have the First Amendment rights that everybody else does. That's exactly the opposite of what was happening in Burson. Robert C. Montgomery: But it wouldn't be like singling out a political party. These are people who have committed sex offenses. So, again, they have had certain disabilities already, civil disabilities. And this Court has -- has certainly said that felons can be prevented from having guns and felons can be prevented from voting. Here is a situation in which you have sex offenders who have committed heinous crimes and are likely to recidivate. John G. Roberts, Jr.: Is -- is a provision like this ever added to the sentences as opposed to following from the sex registry? Robert C. Montgomery: As -- as part of probation, there can be certainly those sorts of provisions added for the length of parole, for instance, or probation. They can be a condition. A lot of times, those are completely banning the Internet altogether. And one of the things about that is that when somebody is on probation or parole, of course, they usually will consent to having searches done. So it's a lot easier for a parole officer to determine whether this person has five computers or a smartphone or what they're using during that period, unlike -- John G. Roberts, Jr.: I suppose it's hard to generalize, but do you have any idea what the period of parole or probation is for someone who commits a sex offense such as the one at issue here? Robert C. Montgomery: I -- I am not sure. I think it's a -- I'm thinking that it's around three years, but I'm -- I'm not positive on that. Yes. Sonia Sotomayor: Not if it's a Federal crime. Robert C. Montgomery: Not if it was -- if it was a -- Sonia Sotomayor: It's much longer. Robert C. Montgomery: If it was a Federal crime, it would be much longer. Sonia Sotomayor: I -- I -- I'm still having some difficulty because you're building layer upon layer of speculation or -- or statistical inference. Yes. There's a high statistical inference that recidivism will follow with one sexual crime to another, but then what's the statistical inference I have to draw that people who have abused a neighbor's child but never used the Internet, will now use the Internet to abuse a different child? Because this rule is not being applied to just people who have been found to have enticed a child on Facebook or some form of Internet usage. It's being applied indiscriminately to people who have committed a sexual crime of statutory rape or of -- or even if they're teenagers, more than four years apart, or something else of that nature. What -- what's the inference that every sexual offender is going to use the Internet to lure a child? Robert C. Montgomery: Well, it's -- it's often impossible to know whether the sex offenders use the Internet or not. Unless they contacted the victim online, it may be impossible to know whether they use the Internet. And certainly, as -- as far as recidivism, you -- you don't know how many actual offenses these sex offenders have committed when they have -- have been in rehabilitation and said that they committed -- they've only -- only about 5 percent of what was reported is what came out when they took a polygraph. So there's much more crime committed by these offenders than ever gets reported. So the fact is that they could -- they could have used the -- the Internet for any of their crimes. It may be impossible to know if they use the Internet for their crimes. Some you would know, but many you would not know. Sonia Sotomayor: But that might be true of every criminal today. Robert C. Montgomery: It could -- Sonia Sotomayor: Or committing almost any crime. Robert C. Montgomery: That could be, but again, we're talking about social -- Sonia Sotomayor: Most of them can go onto Facebook and find the location of the bank they want to rob. They can go on the Internet and find out who's employed there. The Internet could be used for almost any crime -- Robert C. Montgomery: Correct. Sonia Sotomayor: -- by anyone. Robert C. Montgomery: Those -- those are even more speculative as to how many people would use that. Here, we -- here we know from studies that about 82 percent of online sex crimes against children, social networking websites were used to gain information about their likes and dislikes. And 62 percent of online sex crimes use -- use social networking websites to gain home and school information. So we know that there's a very high percentage of these offenders who -- who are using social networking websites to find out information. Sonia Sotomayor: Can they go on the school website? Robert C. Montgomery: They can go on the school website. I'm not sure that those have individual information about students typically, personal information that would be of the sort you get off a social networking website, which is whether someone -- whether a child likes puppies or whether their parents have recently been through a divorce, that kind of information can't be gathered from a school website. And -- and, again, there are ample alternative channels here. These offenders can go on noncommercial social networking websites. They can go on social networking websites which only allow adults. They can go to news sites. They can use blogs, podcasts, those sorts of things, so there are other ways. And, in fact, most -- there are plenty of people who don't use these kinds of websites and find out their information just fine. So it's not a matter of a necessity to have this sort of a website that you can go to. Elena Kagan: How many people under 30 do you think don't use these sites to get all their information? Under 35? I mean, they're -- increasingly, this is the way people get everything that -- all information. Robert C. Montgomery: They -- Elena Kagan: This is the way people structure their civic community life. Robert C. Montgomery: They -- they do get a lot of information. Obviously, most anything you can get there, you can get somewhere else. The news is typically not coming from Facebook. It's coming from some other website if they're getting news there. There are other ways that people can communicate other than through Facebook. And certainly, when you have social networking websites like Facebook, My Space, Instagram, that say, as a sex offender we don't want you here, you can't come here, obviously, there are ways those people can get their information. They don't have to use that to get that information. Ruth Bader Ginsburg: What about the -- and there was a -- a brief -- the electronic frontier, and -- and even if -- if the New York Times is not included, the point is that these people are being cut off from a very large part of the marketplace of ideas. And the First Amendment includes not only the right to speak, but the right to receive information. I mean, you don't -- you don't question that they are being cut off. Robert C. Montgomery: No. They are -- they are being cut off. And again, it has to be remembered that these are sex offenders who have been convicted of sex offenses, and they should be cut off from sources of information that they can use to perpetuate their crimes against children. And so they are being cut off from these particular websites, but they have other means in which they can gather news, that they can communicate with friends, that they can share pictures. Those kinds of things can be done in other places. I do think it's important to make it clear that -- that the statute does not include nytimes.com. And if -- Sonia Sotomayor: Why? I got a page here with -- printed from nytimes.com, from the New York Times, where on the side there's commentary by people who have created profiles on themselves having a public discussion between them on a news article that was printed in the New York Times. That appears to be a new feature of the New York Times, but it appears to be a common feature of most newspapers today that are printed online. Robert C. Montgomery: They -- they often do allow commenting, but the requirement in the statute is that they allow someone to go to a profile page, and on that profile page then link to people that they don't know. Elena Kagan: Where is that in the statute? Because I don't read the statute to impose that as a requirement. So tell me where you find that. Robert C. Montgomery: Certainly. That -- that is in (B)(iii) of the statute. So B sets out the four broad requirements, four requirements to define a commercial social networking website. Elena Kagan: Right. So (B)(iii). Robert C. Montgomery: (B)(iii). Elena Kagan: It -- it allows users to create web pages or personal profiles that contain information such as links to other personal web pages. So you're reading the "such as" as a requirement, but "such as" is not a requirement. "Such as" is just like here's an example, but you don't necessarily need this. Robert C. Montgomery: The -- the other way that it can be read and the narrower way would be if you had an implied colon after the word "contained," so that it read "allows users to create websites or personal profiles that contain," colon, and then four different things; 1, information such as the name or nickname of the user; 2, photographs placed from the personal -- Elena Kagan: Well, then you need an implied colon and an implied semicolon. Robert C. Montgomery: Well, semicolons -- (Laughter.) Elena Kagan: And then another implied semicolon. Robert C. Montgomery: Semicolons would be -- semicolons would be -- Elena Kagan: And then another implied semicolon. Robert C. Montgomery: Well, semicolons would be -- would be better, but I -- I -- they certainly would be better. I would be -- Elena Kagan: But all this implying of punctuation marks, I mean, if you just read this, it's contain information such as a bunch of things, which none of which are necessary, but these are good examples of things that characterize allowing users to create web pages or personal profiles that contain information. That's your requirement. Robert C. Montgomery: It really makes no sense not to have all four of those, because that would mean that you could have the -- the -- the fourth one, links, but not the first one, the name of the person. Samuel A. Alito, Jr.: Well, you know, you might read this to -- you might read a personal profile to mean something more than just a nickname. A personal profile -- the definition of a profile is a concise biographical sketch, which seems to be -- seems to refer to enough information so that you can get a -- an idea about who the person is. Why don't you read it that way? And if you read it that way, would it include nytimes.com? Robert C. Montgomery: No. That still would not include nytimes.com because -- well, our position still is that it has to have links, so I'm not sure I'm answering your question exactly as I should. Samuel A. Alito, Jr.: Well, I'm saying suppose we think that -- that it's a stretch to get to links, but it does require a personal profile, and I wouldn't think that just a nickname. Somebody says my nickname is, I don't know what, Joe, that that's a -- that's a profile? Robert C. Montgomery: No, that would not -- that would not be a profile. The other point is -- Sonia Sotomayor: So would a name and a picture be a profile? And your ability to discuss in that comment section personal information or public information, whatever you want to discuss? Robert C. Montgomery: Not -- not under our reading of the statute. It still would require all four of these. And one other point about that is in -- in subsection (b)(4), there's a list that starts with "such as" and includes a -- a -- the word "or," whereas in number 3 it has "such as," but it has the word "and." So the legislature certainly knew how to say "or" or "and" in those portions. Elena Kagan: But "such as" does not mean "each of." You're reading it as though "such as" means "each of." Robert C. Montgomery: No. We're reading it as "such as" only modifies the name or nickname of the user, and then you have three other elements to it. So there could be things in -- John G. Roberts, Jr.: You can finish your sentence. Robert C. Montgomery: In -- in this instance, the -- not a co-defendant, but the other person charged here in this case that's not before the Court used initials. So there could be something besides a name or a nickname. John G. Roberts, Jr.: Thank you, Mr. Montgomery. Mr. Goldberg, you have four minutes remaining. David T. Goldberg: Thank you, Your Honor. I'll -- I'll try to make four points. As to the New York Times, our main submission is it doesn't matter. But that said -- because it is overbroad as applied to any one site -- but that reading of the statute doesn't work grammatically. If you look in the (a) and in the (b), it talks about sites that create web pages or personal profiles. And in (a), it says to become members or create personal web pages. So you can't have a links requirement if there are sites that -- that qualify without creating web pages. Second, when they told Mr. Packingham what this law requires and what this means, they didn't say anything about links. If you look at the State supreme court opinion, they assumed -- and not just for decisional purposes -- they said to the extent that the Petitioner is right, there are alternatives. So they didn't embrace this construction. And just recently on this question of Snapchat, after the State filed the brief, which is all about links, they prosecuted somebody for using Snapchat, which is a site that doesn't have links of the kind that -- that we're talking about. So that construction and -- and, as my friend is saying, maybe somebody might understand what "profile" means, but this is a criminal statute. And I think if any of us were advising somebody on the registry whether they can do it, the plain language, the history, and the Supreme Court opinion all say you're in great danger of -- of liability here, steer clear. And that's what the officer in this case, when he was cross-examined on that question, that's what he said. The second thing about alternative channels, this is -- there is a President. There are also 500 million Tweets a day. There are 10 billion Snapchat videos. It's not just people under 30 -- Samuel A. Alito, Jr.: Well, suppose this case had come to us in 2003, before Facebook was created. Would there be alternative channels then? David T. Goldberg: In 2003, I'm not quite sure what the -- in 2003, the predominant area was -- was chat rooms and that's explicitly exempted. So I'm not sure -- sure what that -- what they would be going after. I think on the -- on the question of -- so there are people in Ladue who did not have lawn signs, but there are more than three billion people in the world who are using these sites, a very small -- Samuel A. Alito, Jr.: But -- David T. Goldberg: -- percentage of people -- Samuel A. Alito, Jr.: But what I'm asking is whether the existence of alternative channels asks whether these are channels that people like to use or whether if the channels that are affected by the statute are taken away, there are still alternative channels. Now, I know there are people who think that life is not possible without Twitter and Facebook and these things and that 2003 was the dark ages. (Laughter.) Samuel A. Alito, Jr.: But I don't know that -- that any channels of communication that were available at that time have been taken away. So if there were alternative channels then, why would there not be alternative channels now? David T. Goldberg: Well, I think, Your Honor, you have to look at it -- and this is back in 2008 -- and you have to look at it in practical terms about what people's communicative life is and what -- what they're able to do. And if you look at the cases that had enforced those -- that requirement, if you look at Lindmark, you look at City of Ladue, are the two cases that have struck down laws. Even in the context of adult zoning, the Court has said that there has to be a substantial amount of -- of access and protected speech. In the Los Angeles Airport case, that was one place. These are the places where everybody is speaking and interacting and looking for work and petitioning the government. Every single representative -- there are political debates. The President is speaking to the people through this medium. So it is an extraordinary argument to say not everybody does it. I don't think that's the test. The test is how much of your core First Amendment activity is foreclosed. And the ability to speak with this networked group of people all over the world is as strong -- this is, as Justice Kennedy said, well beyond the traditional town square. And I'm sure there were people who didn't go to the town square, but that wouldn't be a basis for -- for upholding a restriction there. The -- the core point here, though, is that Mr. Packingham -- this law reaches speech that is fundamentally at the core -- I'm sorry, Your Honor. John G. Roberts, Jr.: You can finish that sentence. David T. Goldberg: I'll just say this -- this case, this wolf comes as a wolf. This is core-protected speech. There is nothing about it that implicates the government's purpose. And the fact that he was convicted for a felony is why this law is unconstitutional. Thank you, Your Honor. John G. Roberts, Jr.: Thank you, counsel. The case is submitted.

William H. Rehnquist: We'll hear argument next in No. 88-155, Texas v. Gregory Lee Johnson. Ms. Drew, you may proceed whenever you're ready. Kathi Alyce Drew: Thank you. Mr. Chief Justice, and may it please the Court: The issue before this Court is whether the public burning of an American flag which occurred as part of a demonstration with political overtones is entitled to First Amendment protection. The flag burning in this case occurred during the 1984 Republican National Convention in Dallas, Texas. The flag was burned in front of Dallas City Hall at the culmination of a demonstration march through downtown Dallas in the midst of a crowd of demonstrators and onlookers. The flag burner, who was identified as Mr. Johnson, was convicted under a Texas statute which prohibits desecration of the national flag. His punishment was assessed at one year in the county jail plus a $2,000 fine. The conviction was affirmed on direct appeal by the Intermediate Court of Appeals. Mr. Johnson then filed petition for discretionary review to the Texas Court of Criminal Appeals. That is the highest court in the state of Texas which hears criminal cases. The court granted his petition, reversed his conviction, and ordered the information dismissed. The Court of Criminal Appeals held that the Texas statute was unconstitutional as applied to Mr. Johnson, since he was a political protester. Judge Campbell of that court found that flag burning constituted symbolic speech within the test enunciated by this court in Spence versus Washington. That court also found that Texas' asserted interests in regulating the act of flag burning were insufficient to outweigh a protestor's First Amendment rights to expression. For purposes of this argument today and with the Court's indulgence, the state will assume the symbolic speech standard and proceed directly to the question of Texas' compelling interest in regulating this type of conduct. Throughout the course of the appellate history in this case Texas has advanced two compelling state interests. One is the preservation of the flag as a symbol of nationhood and national unity. The second is the preservation of a breach of the peace. William H. Rehnquist: Prevention of breach of the peace? Kathi Alyce Drew: Yes, Your Honor, prevention as opposed to punishment for a breach of the peace. I would like to address first the nationhood interest. We believe that preservation of the flag as a symbol of nationhood and national unity is a compelling and valid state interest. We feel very certain that Congress has the power to both adopt a national symbol and to take steps to prevent the destruction of that symbol, to protect the symbol. Antonin Scalia: Now, why does... why does the... why did the defendant's actions here destroy the symbol? His actions would have been useless unless the flag was a very good symbol for what he intended to show contempt for. His action does not make it any less a symbol. Kathi Alyce Drew: Your Honor, we believe that if a symbol over a period of time is ignored or abused that it can, in fact, lose its symbolic effect. Antonin Scalia: I think not at all. I think... I think when somebody does that to the flag, the flag becomes even more a symbol of the country. I... I mean, it seems to me you're running quite a different argument, not that he's destroying its symbolic character, but that he is showing disrespect for it, that you not just want a symbol, but you want a venerated symbol, and you don't make that argument because then you're getting into... into a sort of content preference. But I don't see how you can argue that he's making it any less of a symbol than it was. Kathi Alyce Drew: Your Honor, I'm forced to disagree with you. William H. Rehnquist: All right. Kathi Alyce Drew: Because I believe that every desecration of the flag carried out in the manner that he did here... and certainly I don't think there can be any question that Mr. Johnson is a hard-core violator of this statute... if his actions in this case under the facts of this case do not constitute flag desecration, then I really am not quite certain what would constitute flag desecration. Antonin Scalia: They desecrate the flag indeed, but do they make it... do they destroy the symbol? Do they make it any less symbolic of the country. That's the argument I thought you were running, that... that we have a right to have a national symbol. And if you let the people desecrate the flag, we won't have a national symbol. I don't see how that follows. We may not have a respected national symbol, but that's a different argument. Now, if you want to run that argument that we have the right to insist upon respect for the flag, that's a different argument. Kathi Alyce Drew: Texas is not suggesting that we can insist on respect. We are suggesting that we have the right to preserve the physical integrity of the flag so that it may serve as a symbol because its symbolic effect is diluted by certain flagrant public acts of flag desecration. William H. Rehnquist: Well, in the sense you're arguing a minimal form of respect for the flag, aren't you? Not that you have to take your hat off or salute when it goes by. Now, the state can't require you... but at least can it consist that you not destroy it? Kathi Alyce Drew: Yes, Your Honor. We... to the expect... to the extent that we are asking for any respect for the flag, we are asking for respect for its physical integrity. Certainly we do not demand that any individual view it with any discernable emotion whatsoever, only that its physical integrity be respected. And I think that that is a very minimal basis to ask from any individual. And that is really all Texas is suggesting with this is that we have got to preserve the symbol by preserving the flag itself because there really is no other way to do it. There is nothing that would accomplish this particular purpose if you cannot protect the physical integrity of the flag. Anthony M. Kennedy: Well, oh, over... over the years, over the centuries, the cross has been respected. I recognize one's a religious symbol, the other's a national one, but there's no legislation that has appeared necessary to protect, say, the cross. Kathi Alyce Drew: That's true, Your Honor. Anthony M. Kennedy: So, it may be that you can protect symbols by public respect and by measures other than the imposition of the criminal law. Kathi Alyce Drew: Your Honor, I don't believe, though, that a cross has quite the same character that the American flag does because there are many people in this nation who would not view a cross as a symbol. Anthony M. Kennedy: Even probably... probably maybe arguably less than the flag. I'm not sure of the numbers, but it's been preserved. Kathi Alyce Drew: And this particular statute, Your Honor, would not go to that sort of a symbol. This particular statute, I believe, in this respect recognizes that the flag is a national property, that it belongs to all people, that all people are entitled to view it symbolically in whatever way that they wish. Some people may give it great respect. Others may not. That's not what we're regulating here. We are simply trying to preserve the flag as a symbol for all people. The issue-- Anthony M. Kennedy: Well, you begin by saying that it's a symbol and by acknowledging, at least in this part of your argument, that what the defendant did was speech, is that correct? Kathi Alyce Drew: --We are assuming that standard for purposes today. Anthony M. Kennedy: All right. At this point. What is the juridical category you're asking us to adopt in order to say we can punish this kind of speech? Just an exception for flags? It's just a... there's just a flag exception of the First Amendment? Kathi Alyce Drew: To a certain extent, we have made that argument in our brief. With respect to the symbolic speech standard, we believe that there are compelling state interests that will in a balancing posture override this individual's symbolic speech rights, and that preserving the flag as a symbol, because it is such a national property, is one of those. Anthony M. Kennedy: What are the others? Kathi Alyce Drew: The other state interest advanced Your Honor, is a prevention of a breach of the peace. Anthony M. Kennedy: That's the other state interest. Kathi Alyce Drew: Yes, Your Honor. Anthony M. Kennedy: But I assume under this statute, of course, it's not just one flag, it's 51. Kathi Alyce Drew: 51 flags or all 50 state flags plus the national flag? I'm confused by your question. I apologize. Anthony M. Kennedy: Well, this statute prohibits the desecration of a state flag as well. Kathi Alyce Drew: Yes, it does. Anthony M. Kennedy: Of the Texas state flag? Kathi Alyce Drew: Yes. Anthony M. Kennedy: And I assume if we upheld the statute in every other state it would have the same right? Kathi Alyce Drew: Yes, Your Honor. Anthony M. Kennedy: So, your category for one flag is now expanded to 51. Kathi Alyce Drew: The statute does say a state or national flag. That is correct. And we do believe Texas certainly has a right to protect its own flag. And I think that a similar interest would be for sister states. So, the statute says a state or national flag. Sandra Day O'Connor: Could Texas prohibit the burning of copies of the Constitution, state or federal? Kathi Alyce Drew: Not to my knowledge, Your Honor. Sandra Day O'Connor: That wouldn't be the same interest in the symbolism of that? Kathi Alyce Drew: No, Your Honor, it would not be the same interest I don't believe. Antonin Scalia: Why not? Why is that? I was going to ask about the state flower. [Laughter] You're not going to-- --The state flower? Kathi Alyce Drew: There is legislation, Your Honor, which does establish the blue bonnet as the state flower. Antonin Scalia: I thought so. Kathi Alyce Drew: It does not seek to protect it. Antonin Scalia: Well, how do you pick out what to protect? I mean, you know, if I had to pick between the Constitution and the flag, I might well go with the Constitution. I don't know. Kathi Alyce Drew: Your Honor, I think Texas in this area has made a judgment that certain items... and the statute itself is not limited to just the flag. The portion that is in question here is limited to the flag. But it has made a judgment that certain items are entitled to more protection. Antonin Scalia: I understand that. But we up to now have never allowed such an item to be declared a national symbol and to be usable symbolically only in one direction, which is essentially what you're arguing. You can honor it all you like, but you can't dishonor it as a sign of disrespect for the country. Kathi Alyce Drew: No, Your Honor. We're not arguing that at all. Antonin Scalia: Oh? Kathi Alyce Drew: Not at all. We are in no way arguing that one cannot dishonor the flag or that one cannot demonstrate disrespect for the flag. Individuals have that right. What we are arguing is that you may not publicly desecrate a flag regardless of the motivation for your action. Antonin Scalia: Well, one hardly desecrates it in order to honor it. I mean, you only desecrate it in order to show your disagreement with what it stands for, isn't that right? So, it is sort of a one-way statute. Kathi Alyce Drew: I don't think that it is exactly, Your Honor, because I think that there are other forms of conduct which are... equally prohibit... well, let me put it this way. The same conduct is prohibited, regardless of the motive of the actor. If this-- Antonin Scalia: But its motive... its motive... his motive will never be to honor the country. It will always be to criticize the country. Kathi Alyce Drew: --Not necessarily. Antonin Scalia: Will you give me an example where one... somebody desecrates the flag in order to show that he agrees with the policies of the United States. I-- [Laughter] Kathi Alyce Drew: I think it is possible-- Antonin Scalia: Well-- Kathi Alyce Drew: --that an individual could choose to burn a flag as an honor for all the individuals who died in Vietnam. This is their most prized possession. They're going to take it in front of Dallas City Hall in the midst of a hundred people in the middle of the afternoon, they're going to soak it with lighter fluid, and they're going to ignite it, and they are doing this to honor the Americans who died in Vietnam. John Paul Stevens: --They'll probably violate a federal statute while they're doing that, too. Kathi Alyce Drew: Yes, Your Honor, there is a federal statute that does regulate flag desecration. This man was not prosecuted under it. He was prosecuted under the Texas statute. Antonin Scalia: Your statute would cover that example that you just gave? Kathi Alyce Drew: Yes, it would, Your Honor, because it does not go to the motive of the actor. If a vandal takes a flag... same scenario... in front of Dallas City Hall, a hundred people, middle of the afternoon, soaks it with lighter fluid, sets it on fire, they are still liable under this statute. They have desecrated the flag, but they have no intent to dishonor the country. They have no intent to dishonor the flag. They have no intent to do anything except oh, I'm... just an act of a vandal. I think I'll do this today. Sandra Day O'Connor: Well, actually, Ms. Drew-- Kathi Alyce Drew: Yes. Sandra Day O'Connor: --I thought this statute only applied if the desecration were done in a way that the actor knows will offend one or more other people likely to discover it. Kathi Alyce Drew: That is correct, Your Honor. Sandra Day O'Connor: There is that little added requirement, is there not? Kathi Alyce Drew: Yes, Your Honor, that is correct. Sandra Day O'Connor: And do you think that that added requirement survives analysis under this court's cases in Street and Grayned versus City of Rockford and so forth? Kathi Alyce Drew: Yes, Your Honor, I believe it does. Sandra Day O'Connor: And why? Kathi Alyce Drew: Believe I believe the import of that statute. Now, the statutory language there is that it goes to the manner in which the act is effectuated. It goes to the way in which the act is performed, that it has to be in a way that the actor knows will seriously offend. Serious offense does not have to be caused under this statute. Sandra Day O'Connor: Well, I thought that the court had held that it's firmly settled under the Constitution, that the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of the hearers. Kathi Alyce Drew: That's correct, Your Honor. Sandra Day O'Connor: And this statute seems to try to achieve exactly that. Kathi Alyce Drew: I don't believe that it does, Your Honor, because I believe that the pivotal point is in a way how is the conduct effectuated, how is it done, not what an individual may be trying to say, not how onlookers perceive the action, not how the crowd reacts, but how is it done. If you take your flag into your basement in the dead of night, soak it with lighter fluid and ignite it, you probably have not violated this statute, because the Texas statute is restricted to certain limited forms of flag desecration. Harry A. Blackmun: Ms. Drew, it's probably of no consequence, but is there anything in the record as to whether this flag was stolen? Kathi Alyce Drew: Yes, Your Honor, as a matter of fact there is. The... one of the officers who was observing the march testified that in front of the Mercantile Bank Building he saw several of the protestors bend a flag pole and remove an American flag. They then handed this flag to Mr. Johnson, who wadded it up and stuck it under his T-shirt. The march then proceeded. The officer testified that when they got to City Hall, he saw Mr. Johnson remove the flag from under his shirt. He tried to light it with a cigarette lighter. It would not light. Someone from the crowd then handed him the can of lighter fluid. He soaked it, ignited it, the flag burned. Harry A. Blackmun: But you would be making the same argument if he owned the flag? Kathi Alyce Drew: Yes, Your Honor, we would be. I do not believe that there is a shred of evidence in this record to support the fact that this was his privately owned flag. I think just the opposite is very clearly reflected. John Paul Stevens: Was he prosecuted for stealing the flag? Kathi Alyce Drew: No, Your Honor, he was not. John Paul Stevens: I wonder why not. Kathi Alyce Drew: I believe, Your Honor, that problems were of proof there in that no one saw him actually take it. In fact, the testimony was that others took it and then gave it to him. And I believe that it was felt that there were so many proof problems that a prosecution was very speculative under those facts. There also might have been some problem with placing a monetary value on the flag for purposes of prosecution, which is necessary under the statute. Harry A. Blackmun: Isn't the real way of opposing this kind of action by this man to have a large crowd out waving other flags in opposition to his posture rather than putting him in jail? Kathi Alyce Drew: I'm sorry, Your Honor. I'm not... I'm not afraid I got all of your question. Harry A. Blackmun: Well, if you were out in front of the building today, there are pseudo-demonstrators of one kind or another, and I'm merely saying isn't... wouldn't it be better policy to rather than have a criminal statute like this to have 500 people out waving flags and hooting him down, so to speak? Kathi Alyce Drew: Your Honor, I believe that legislatures act in categorical manners, and that-- Harry A. Blackmun: Legislatures act the way they do, all right, no question. You have to be up here defending them. Kathi Alyce Drew: --It is within their judgment to penalize behavior that they feel is offensive to society. Anthony M. Kennedy: But you gave that answer before. You said the legislature has made the judgment. But you're asking us to define and to articulate a constitutional category. And from what I can see, the constitutional category is that we simply say the flag is different. Kathi Alyce Drew: That is one possibility that we have advanced to this court. That's certainly true, Your Honor. We have also suggested, though, that another route is available to assume the symbolic speech standard and to take a look at what the state's interests are in protecting and in prescribing this type of behavior. Sandra Day O'Connor: Do you suppose Patrick Henry and any of the founding fathers ever showed disrespect to the Union Jack? Kathi Alyce Drew: Quite possibly, Your Honor. Sandra Day O'Connor: You think they had in mind then in drafting the First Amendment that it should be a prosecutable offense? Kathi Alyce Drew: Of course, Your Honor, one has no way of knowing whether it would be or not. Antonin Scalia: I think your response is that they were willing to go to jail, just as they were when they signed the declaration. They were hoping they wouldn't get caught. [Laughter] Kathi Alyce Drew: Yes, Your Honor. I believe the classic line is "We hang together or separately". John Paul Stevens: That's right. Do you... you said that this flag may be possibly different from other symbols. You don't argue that there's something unique about this flag? Kathi Alyce Drew: Of course there is, Your Honor. Antonin Scalia: When it's... do you think... when you have an equally strong case for the flag of the State of Texas or the state flower. Do you think they're the same case? Well, Texas may be, we'll say. [Laughter] Kathi Alyce Drew: Texas, absolutely, Your Honor. [Laughter] John Paul Stevens: Are you serious in that answer? Kathi Alyce Drew: Yes, I am. John Paul Stevens: That the Tex... that the Texas flower... and you could make the same kind of argument as for this flag? Kathi Alyce Drew: No, I don't think you could make the same kind of argument for the Texas flower. I truly do not. John Paul Stevens: But you haven't really made an argument that there's anything unique about this symbol. Kathi Alyce Drew: Well, Your Honor, I disagree. I think in our brief we have detailed several arguments of what is unique about the symbol. John Paul Stevens: Well, I mean, I've just... what I've heard this afternoon is all I'm saying. Kathi Alyce Drew: I think it's very clear that the flag is the manifestation, the visible manifestation of over 200 years of history in this nation, and that it has remained virtually unchanged in design. The 13 stripes represent the original 13 colonies, and every state is represented on the field of blue by a star. It is very unique. It is immediately recognizable to almost anyone who would see it. Thurgood Marshall: Well, suppose... suppose somebody burns an American flag with 48 stars on it. Kathi Alyce Drew: I believe that is reachable under this statute, Your Honor. Thurgood Marshall: You believe what? Kathi Alyce Drew: I do believe that that could be reached under this statute. That is clearly a past flag. Many people probably still own and display 48-star flags. Thurgood Marshall: It would be just the same? Kathi Alyce Drew: Yes, Your Honor, I believe that it would be. Antonin Scalia: But 47 wouldn't work because there was never a 47-star flag, is that... then you wouldn't reach it? Kathi Alyce Drew: That would depend, Your Honor, on-- Antonin Scalia: So, all you have to do is take one star out of a... out of the flag, ana it's okay. [Laughter] That can't be right. Kathi Alyce Drew: --That would depend, I believe, Your Honor, on how flag is defined. There are certain definitions that are given. Congress itself has defined what it means by the flag of the United States. And, as part and parcel of that definition, there is language that says "The stars and stripes in any number which to an individual who looks at it without... without deliberation, may be a flag. " The flag behind you looks to me to be a flag, though I cannot count 50 stars on it. Antonin Scalia: Now, that... so, you're saying 47 would be okay. I tend to think that's probably right. Kathi Alyce Drew: If there were any question, I would think that it would be appropriate for a jury to resolve that question, Your Honor. I'd like to turn very briefly, if I may, to the breach of the peace interest. We do feel that preventing a breach of the peace is a legitimate state interest. And, indeed, the Texas Court of Criminal Appeals recognized that preventing a breach of the peace is a legitimate state interest. Again, the Texas legislature has made a judgment in this area that public desecration is likely to lead to violence, that it can lead to violence. And I think the record in this case is abundantly clear that it is merely fortuitous, it is our good luck that a breach of the peace did not occur as a result of this particular flag desecration. The appropriate test to be utilized in this area has not been decided by this court. There are two lines of cases. One is that public desecration of a flag is inherently inflammatory. Another is that imminence must be shown. And I believe that this record is very clear that Texas could regulate under either theory. And, again, the goal is a prevention of a breach of the peace, not a punishment for a breach of the peace. And in analyzing this particular statute, the Texas Court of Criminal Appeals utilized a much higher standard than any court has ever used before. They went to an actual breach of the peace and they said well, there was no actual breach of the peace. That's true. Individuals who were seriously offended by this conduct were not moved to violence. If they were, they exercised restraint. But I don't believe that that is dispositive of the state's interest and because its interest is different, the standard is different. And I believe that the Court of Criminal Appeals suggestions in this regard are a bit too narrow; that if you have to show an actual breach of the peace, your purpose in a flag desecration statute is obviated. Some other statute would serve that interest, but not a flag desecration standard because its purpose is prevention. Antonin Scalia: I suppose you could have such a... if that theory alone is enough to support the statute, I suppose you could have such statutes for Stars of David and crosses and maybe... I don't know... Salman Rushdie's book or whatever, whatever might incite people you can... you can prevent such desecration. Kathi Alyce Drew: Your Honor, again, there are other sections of this statute where other items are protected, specifically public monuments, places of burial and worship. I don't believe that anyone could suggest that one may paint swastikas on the Alamo in San Antonio. That is desecration of the Alamo. Legislatures made it up-- Anthony M. Kennedy: But that... but that's because it's public property-- Kathi Alyce Drew: --True. Anthony M. Kennedy: --and unless you want to say that the flag is somehow public property of us all and ignore traditional distinctions of property, then your example just doesn't work. Kathi Alyce Drew: Your Honor, I believe that it does. I believe it does. The amici brief filed on behalf of Mr. Johnson in this case by the American Civil Liberties Union confesses that there is no First Amendment interest in protecting desecrations of either public monuments or places of worship or burial because they are... and this is a direct quote from Footnote 7, page 18 of their brief... "Someone else's cherished property". I think the flag is this nation's cherished property, that every individual has a certain interest. The government may maintain a residual interest, but so do the people. And you protect the flag because it is such an important symbol of national unity. Antonin Scalia: If we say so, it becomes so. But it certainly isn't self-evident that... I never thought that the flag I owned is your flag. I mean-- [Laughter] Kathi Alyce Drew: Many justices of this court have held that the flag is a national property. Unless the Court has additional questions, I would like to reserve my remaining time for rebuttal. William H. Rehnquist: Very well, Ms. Drew. Mr. Kunstler. William M. Kunstler: Mr. Chief Justice, may it please the Court: Some of the steam has been taken out of me by some of the questions and some of the responses and the concession by the state. But I would like to suggest briefly to state that this particular act that we're concerned with here, this 42.09(a)(3) of the Texas statute singles out communicative impact for punishment. Now, Ms. Drew has avoided that by now... and virtually the state now apparently concedes that you can write out of a statute what Justice O'Connor referred to, the question of whether the actor knows or means that what he's doing will seriously offend one or more persons likely to observe or destroy or discover his particular act. That's out of the statute, apparently, according to the argument because in the reply brief and today she has said essentially what is in the reply brief. Like Gertrude Stein, "A rose is a rose", they now say "A flag burning is a flag burning. " And they read out of the statute under which he was convicted and which went to the jury and the charge on the question of seriously offend, that's all out as far as Ms. Drew is concerned. But it's not out as far as this court is concerned. That's what the conviction was about, that's what the argument to the jury was about, that's what the charge was about. They all mention that. That's what the witnesses, Stover, Tucker, and Walker, testified to, that they were seriously offended. So, this depends on communicative impact for punishment. They've conceded it's pure speech. They raise no question arguendo, even, essentially that it is not speech, and concede that. Antonin Scalia: Mr. Kunstler, I... I... I think you're stretching her argument. I don't think she said that. I... I think she said that there has to be a fence, but it doesn't have to be the intention to communicate that offense. It doesn't have to be intended offense. William M. Kunstler: Well, that's-- Antonin Scalia: If... if you're doing it to honor the flag in your... in your crazy, mistaken fashion, but it... but it would obviously offend anyone else, then you would violate the statute. So, I think she... she still insists that it be likely to offend somebody, but you don't have to intend to communicate a dishonor or offense to the flag. William M. Kunstler: --I can understand that rationale, but in reading the reply brief, the reply brief said in essence we virtually take that out of the statute. We rewrite the statute now, and we say essentially a flag burning is a flag burning, and that offense goes out of it, offense whether communicated later or not communicated later, whether it occurs or it doesn't occur, I thought that's what the reply brief did. Now, maybe I do misstate her argument slightly, but I don't think I mistake the reply brief, because I got the impression that's... well, the words, "A flag burning is a flag burning. " is in the reply brief. Now, I remember, Justice Scalia, in reading your dissent in Community for Creative Nonviolence that you said essentially, "A law directed at the communicative nature of conduct must like a law directed at speech itself be justified by the substantial showing of need that the First Amendment requires. " And of course, I subscribe to that wholeheartedly. In fact, you went on and you reviewed all of the cases that you thought were applicable there, Stromberg, Brown, Tinker and Spence, and you made the following statement: "Every prescription of expressive conduct in those cases was aimed at the communicative effect of the conduct. " And that's what they had here. That's what the jury got, that's what the testimony was, and that's what the statute says. And I agree with... I think-- Antonin Scalia: I was just on the Court of Appeals, then, Mr. Kunstler. William M. Kunstler: --I understand. [Laughter] Antonin Scalia: I may have been wrong, you know. I hope that the elevation doesn't change the thought. [Laughter] William M. Kunstler: In any event, we subscribe to that, of course, in our argument, and I think Justice O'Connor when she wrote Boos she said essentially, this justification, folks, is only on the content of the speech and the direct impact that speech has on its listeners. And in Cohen I think Justice White in his concurrence said that the... that statute made the communicative aspect of the proscribed conduct a crucial element of the violation. That's the contemptuous treatment statute, and that's what we have here. Everything depends on the communication that is made by the actor which may be communicated to the people on the street, but as you know in the statute, Justice Scalia, it goes even further, "likely to observe or discover", which could be in the newspapers the next day, for example, as well as being an onlooker. So, I think that given the concession that the statute is pure speech, given the past decisions of this Court on what should happen to a statute that makes communicative impact, the criterion of the punishment that this statute fails that test, it certainly doesn't come under O'Brien because where... here the government's interest is directly related to expression. It's like Footnote 8 in Spence, and I think what you have here is a statute that depends solely and exclusively on communicative impact on the audience, whether they're there or they read it in the newspaper or they see it on the screen in the evening. It all goes to that. And when you use the word desecrate, you don't mean really in essence praising the flag. Desecrate has a... has a... has a meaning, and I just looked at it in Webster's Second International about it, and desecrate means to divest of a sacred character or office, to divert from a sacred purpose, to violate the sanctity of, to profane, the opposite of consecrate. Now, with reference to the compelling state interest, I listened to the argument of flower to star against B.J.F. before here, and I don't want to hurt Mr. Rahdert's argument in this argument, knowing nothing about the case except what I heard today, but I thought that the protection of a rape victim was a compelling state interest. I agreed with Justice O'Connor's comments on that. That is a compelling interest, certainly. Here you have no compelling state interest that is worth consideration. William H. Rehnquist: Mr.... maybe Mr. Rahdert would feel differently. [Laughter] William M. Kunstler: That may be true. Is he in the room yet? I hope not. Antonin Scalia: He's waving a flag in the back, I think. [Laughter] William M. Kunstler: Now, we're getting back to my argument. With reference to the nationhood and national unity, which Ms. Drew raised and which is filled in the brief, both the reply brief and the main brief of the state, I think... I thought Barnette set that to rest. I thought that when Justice Jackson said that if there is any fixed star in our Constitutional constellation, it is that no official high or petty can prescribe what shall be orthodox in politics, nationalism-- William H. Rehnquist: Well, the facts of West... West Virginia versus Barnette were quite different from this. There the students were required to salute the flag. William M. Kunstler: --And here, Chief Justice, you're asking... people are required not to do something. William H. Rehnquist: Yes. William M. Kunstler: And I think that's a comparable situation. We order you... we can't order you to salute the flag, we can't order you to do all these obeisances with relation to the flag. Can we order you not to do something to show something about the flag? William H. Rehnquist: Well, to me they're quite different. You could say that if you can't do one, you can't do the other. But it seems to me one could quite easily say you can't do one but you can do the other. William M. Kunstler: Well, you know, I understand that, but I think that you get into Street, I thought, which also relied on Barnette. There he did exactly what we're talking about here. He burnt the flag in the street over the question of James Meredith being shot in Mississippi in 1966. William H. Rehnquist: And what was the holding of the court in Street? William M. Kunstler: Well, in Street essentially the court indicated that you couldn't tell whether it was speech or whether it was flag burning and, therefore, the court reversed in the Street case. But in so deciding in relying on Barnette, the court said, essentially I thought, that it was an illegitimate interest in Street to compel respect by prohibiting criticism of the flag, including flag burning. So, I think it's... I guess we have a little difference of opinion on the facts. I know the facts are somewhat different except a flag was burned in the street by Mr. Street in a political protest over a shooting in Mississippi of a civil rights figure. But I think the analogy is the same. Can you say you can't force them to salute the flag or pledge allegiance to the flag, but can you then say we can force them not to show other means of disrespect for the flag, other means of protest over the flag by saying you can't burn the flag? I think they're the same, in all due deference. William H. Rehnquist: Well-- William M. Kunstler: I don't know if I've convinced you, but-- William H. Rehnquist: --Well, you may have convinced others. [Laughter] But take... take, for example, the "Live Free or Die" case. Do you remember that-- William M. Kunstler: --I certainly do. William H. Rehnquist: --from New Hampshire where we said you can't... New Hampshire can't require you to carry around on your license plate the expression "Live free or die". But certainly New Hampshire could have presumably prohibited... New Hampshire couldn't compel you to make any affirmative statement on your license. They certainly could have prevented you from making some statements on your license plate. William M. Kunstler: No, but I think in Wooley, as I recall it, they painted out. They did an affirmative act and painted out the "Live free or die" motto. The Jehovah's Witnesses didn't believe in that, so they painted it out. They did enact and then the question was was that act violating some criminal code. William H. Rehnquist: And the court said no, you... you... you can't pro... you can't prohibit that sort of thing, but the... the reasoning of the Court was that you can't require someone to make an affirmation. To me that's West Virginia versus Barnette. But, if someone applies for a New Hampshire license plate that has a lot of foul language on it, very likely that limited thing can be proscribed. William M. Kunstler: I know. That... I would agree with you on that, but I think that to get away from Wooley against Maynard would be a mistake here. That... that's putting something on the license plate that is profane or whatever. But in... in Wooley, as I understood it, the act that they, Jehovah's Witnesses did, was to paint out. They burnt the flag. In essence. They painted out. I don't think we're going to reach eye to eye on this. [Laughter] I have that distinct feeling. Getting back, then, to the no compelling state interest, though, I don't think there is any compelling state interest in the state of Texas... and by the way, the national flag does not just mean the American flag. There is a presidential flag... they don't put it in capitals... there's a presidential flag that is flown. The Secretary of State has a flag that's a national flag. There are many national flags. I counted 17 national flags. Each department here in Washington has a flag. They're national flags, and the State of Texas would also include those as national flags, certainly the President's flag. So, I think that the word "national" flag needs definition in itself. Harry A. Blackmun: Does the Supreme Court have a flag? William M. Kunstler: What was that? Harry A. Blackmun: Does the Supreme Court have a flag? William M. Kunstler: I don't know, but the Republican Party has one-- [Laughter] --because when they went by the Mercantile Bank Building here... I just learned this from the record... the... one of their witnesses, Jimmy Smith, who is the custodian of the flags at the Mercantile Bank said, "We took down four American flags. " "We have 16 normally, because we put up four Republican Party flags because the Republican Party was then meeting in its annual convention... in its national convention. " So, I know the Republican Party. If the Supreme Court doesn't have one or has one, I don't know. I think you'd be in a better position than me to tell that anyway. By the way, talking about flags in front of the Supreme Court, when I came by today, the flags were up in the rain, and under 36 U.S. Code, the leading provision there is flags shall not be displayed in inclement weather. Thurgood Marshall: Are we going to get back-- Antonin Scalia: --Exemption one applies to all weather flags. Thurgood Marshall: Are we going to get back to this case? William M. Kunstler: That's in all weather flags. [Laughter] That could be physical mistreatment under the Texas statute. You get into vaguenes. Thurgood Marshall: Mr. Kunstler, are you going to get back to the case? William M. Kunstler: Yes, I'm getting back to the case. [Laughter] Seems to me we had this three weeks ago. In any event, I don't think that the... there is a compelling state interest in this flag or any national flag whatsoever. I think the Court has really held that-- John Paul Stevens: Mr. Kunstler, let me ask you... and maybe this gets a little bit away from the case... do you think there is any public interest at all in any of these regulatory measures about don't display the flag in the rain or don't fly it upside down or so? Is there any state interest at all to support that kind of legislation? William M. Kunstler: --I don't know, but I don't think it matters because they're not criminal statutes. They are recommendations. It used to be you couldn't fly the flag at night. Now, you can fly it if it's illuminated, and so on. John Paul Stevens: Do-- William M. Kunstler: They're recommendations. There are no criminal penalties. John Paul Stevens: --Do you think the federal government has any power at all to... to regulate how this flag is displayed in public places? William M. Kunstler: I don't believe so. I don't... I'm thinking in my mind whether they have any injunctive power. John Paul Stevens: There's no state interest whatsoever? William M. Kunstler: I don't see any state interest whatsoever. John Paul Stevens: I feel quite differently. Anthony M. Kennedy: Can the federal government prohibit use of the flag for commercial purposes? Advertising? William M. Kunstler: I don't know. Since Halter against Nebraska, where there was a Nebraska statute against using the flag on beer bottles or beer cans, I don't know whether there can be any prohibition of that. It's used all over for commercial purposes. I notice that Barbara Bush wore a flag scarf, for example. There are flag bikinis, there are flag everything. There are little cocktail flags that you put into a hot dog or a meatball and then throw in the garbage pall. They're flags under the Texas statute, something made out of cloth, but I think they're are all sorts of flags used commercially. I'm not sure in my heart whether I think there's any control over the use of the flag, not on the criminal side anyway. Whether there is a... in answering Justice Stevens' question whether there is an injunctive process that can be employed or not... I... I... I won't go into it. But I have an instinctive feeling that's different, apparently, then Justice Stevens' that there is no control of the use of the flag commercially, although I don't think it's necessary for this case because here we're only talking about a criminal statute. Now, with reference to... when I read Justice White's concurrence in Goguen, I notice he said that punishment for communicating ideas about the flag unacceptable to controlling majority in the legislature is something that is wrong, to punish people for having a different idea about the flag, different than the Texas legislature has with the flag in its desecration statute. And by the way, that's called the desecration of venerated objects. That's the classification they give to it. And I agree with Justice Scalia that flag burning of a single flag in front of the new City Hall in Dallas doesn't lessen the value as a symbol. John Paul Stevens: Let me go back to the any state interest at all. Do you think the military would have any legitimate interest in disciplining a member of the military who showed disrespect for the flag on public occasions? William M. Kunstler: You might have a case there. John Paul Stevens: You might have a case. William M. Kunstler: If a person that joins the army, the flag has maybe even a more peculiar significance to people in the army. I would have problems with it. I would represent such a person-- [Laughter] --because I would think that there's something First Amendment in there. But if he destroyed a flag that was the property of the army, I think he'd be court martialed for that. I don't think there's a particular flag statute in the Uniform Code of Military Justice. If you destroy someone's flag, you can be punished. There are many statutes. I think the Texas Court of Criminal Appeals pointed there are some statutes, this statute and that statute that would cover the situation without getting into the First Amendment area. And I'm sure it would violate the article of war... I used to call it the article of war... which says "conduct unbecoming a member of the military. " if you destroyed a flag... refused... even refused to salute a flag under the military code. Now, with reference to the breach of the peace-- John Paul Stevens: I was only suggesting that maybe there is some... some identifiable state interest that's involved here. William M. Kunstler: --Yeah. I'm not saying... I don't want you to get the wrong-- John Paul Stevens: I think you're acknowledging that there is. William M. Kunstler: --impression that I say it's totally out of reach. I'm not saying that. I'm trying to confine it to this case. John Paul Stevens: You did say that. William M. Kunstler: I know I did. [Laughter] I guess I have too much of a First Amendment consciousness, I guess, in my makeup. With reference to breach of the peace, I don't think there's ever... none of the flag cases that you have before you... ever had before you... have involved a breach of the peace. The only one I found where there was any violence was what Judge Tuttle found in the Monroe case, where they burned an American flag in front of the federal building and someone burned an Iranian flag. When the Iranian flag was burned, there was one act of violence, but not when the American flag was burned. And Judge Tuttle pointed out that there was no clear and present danger. He went right into the old Holmesian doctrine of "clear and present danger" just as there wasn't here. If there had been a breach-- William H. Rehnquist: What about... what about Finer against New York, remember, where that fellow was speaking up at Syracuse and said President Truman is a champagne sipping bum, whereupon they told him he had to stop speaking because of fear from the crowd was going to attack him? William M. Kunstler: --Well, I don't think that changes the position yet because it's no different than Terminiello, really. You're saying hard things. William H. Rehnquist: Well, it came after Terminiello, and it went... it came out the other way. William M. Kunstler: I know it, and apparently the imminence there was so imminent -- [Laughter] -- thank you... was so imminent. But you don't have that here at all. In Terminiello, as you know, when I was reading Terminiello's remarks in the transcript, there was... it showed he ducked several times. Apparently someone threw something during his rampage against the Jews, but they held... this Court held that that wasn't enough. It wasn't really raised very much in the argument. But if it gets to imminent danger where you really have something going on, which you didn't have here, and you haven't had in any of the flag burning cases, there's no breach of the peace here and no imminence of the breach of the peace here at all. Harry A. Blackmun: Well, then we come close to the Skokie cases. William M. Kunstler: Well, Skokie presents a situation, of course, where the attempt to parade through an all white community of black demonstrators... but even there, of course, you can't stop it. You can't stop it. Harry A. Blackmun: That's my point. William M. Kunstler: It you're going to stop it, it has to be so imminent as the Chief said... it has to be so imminent that it really reaches clear and present danger proportions. That's where Judge Tuttle said in Monroe, and I think that is the rule here. We haven't argued clear and present danger here, but I think you must at least show some clear and present danger, some imminence. The... the statute here is not limited to an imminent breach, by the way. It doesn't say imminent breach of the peace at all. It just says "likely" or "might" or, "The actor could reasonably believe that someone might be seriously offended by it. " The Texas Court of Appeals treated this, I think, in its opinion. It said, "This statute is so broad that it may be used to punish protected conduct which has no propensity to result in breaches of the peace. " Serious offense does not always result in a breach of the peace. The protest in this case did not lead to violence. And, I might add, in this protest they had policemen right along with them, undercover police officers. The crowd was not a large crowd. They estimate between 100, 110, and Texas went on to say, as with most other protests of this nature, police were present at the scene. A witness was obviously seriously offended by appellant's conduct because he gathered the burned flag and buried it at his home. Nevertheless so seriously offended, this man was not moved to violence. Serious offense occurred, but there was no breach of the peace, nor does the record reflect that the situation was potentially explosive. One cannot equate serious offense with incitement to breach the peace. And I think that any breach of the peace argument here falls on its face. It is... I think when Chief Justice Burger said in O'Brien versus Skinner, "It is not our function to construe... to construe a state statute contrary to the construction given it by the highest court of the state. " They have construed this statue with reference certainly to breach of the peace. On vagueness and overbreadth, I think the vagueness is... is apparent. It's... by definition it's vague. What does "serious offense" mean? What is "unserious offense" as against "serious offense"? Some of the ACLU witnesses here testified here they were offended. They thought it was repulsive, one of them said, but they were not seriously offended. And I don't know what seriously offended means. The state says it's in the dictionary, and therefore it must have a meaning. I agree with that. Every word is in the dictionary, or at least in some dictionaries. But just because they're in the dictionary doesn't mean that you can define legally or on the spot what serious offense is. It wasn't a serious offense, for example, to fly the flag outside the Supreme Court in violation of 36 USC. The artists' amicus brief, which I think is a most unusual brief, contains many, many of the artists' paintings where you might say that they created paintings that would seriously offend by manipulating the American flag or by cutting it up, destroying it, using it in different ways, many of them to protest situations. Some of them go to the war in Vietnam. Some of them go to other aspects. You don't even know what physical mistreatment means in the statute. Does physical mistreatment mean wearing it, twisting it, burning it? It's just an undefinable statute. As far as overbreadth is concerned and even taking into consideration Justice White's substantial overbreadth argument, this is substantially overbroad-- Byron R. White: That's the Court's doctrine. William M. Kunstler: --Pardon me. But I read it and I saw the words "substantial overbreadth" in it, and I think this even meets that higher standard of whether It's overbreadth. It sweeps protected conduct under its aegis and is... it's just an overbroad statute, so overbroad that I don't think anyone can really doubt it. And, in fact, there's been no real argument against it, against the overbreadth argument essentially by the State of Texas. Now, with reference to as applied, we would rely on the Street case. You can't tell here whether he was convicted with reference to this statute as to the flag burning or as to the words or the acts he did before the flag burning because the Texas prosecutor in his summation said as follows: "If you look at this evidence from start to finish. " --and they showed a lot of television shots of what was happening in Dallas "If you look at this evidence from start to finish, the participating in the beginning, the literature, the last notations, RCYB, the shirt, who he is, the chanting, the yelling, the megaphone, the encouragement, the having the megaphone, being there, wanting this to happen, there is no question he encouraged it all. " "He's as guilty as sin as far as the law of parties is concerned. " That's very much the summation... not as hyperbole in Street as was given in the Street case. Was he really tried and convicted for the flag or for the encouragement or for the literature, the megaphone, the loudspeaker. William H. Rehnquist: But he'd been charged with a number of different offenses here? William M. Kunstler: No. What happened, he was only charged initially with disorderly conduct. William H. Rehnquist: What did the case finally... what was he charged with when it was submitted to the jury? William M. Kunstler: He was charged with... I have the charge here. William H. Rehnquist: I don't mean the judge's charge, but the indictment or information, what offenses? William M. Kunstler: It's an information, a misdemeanor. And he was charged eventually only with the flag burning statute or the desecration statute. But initially, Chief Justice, he was charged... they took in a hundred protestors a half hour after all this happened, and he was charged initially with disorderly conduct. All the rest were let go. And then they dropped the disorderly conduct... that's in the record somewhere... the keeper... the sheriff came and testified that they dropped disorderly conduct and substituted in its place the flag desecration charge, and that's what he was charged with. Disorderly conduct was out of the picture. Now, with reference to... so, he may easily here have been convicted for the words, the encouragement as against... by the law of the parties as against the flag desecration itself. I would just like to end my argument... I think this is a fundamental First Amendment case, that the First Amendment to the written Constitution is in jeopardy by statutes like this. And I wanted to essentially close with two remarks. One, Justice Jackson said in Barnette: "Those who begin coercive elimination of dissent soon find themselves eliminating dissenters. " "Compulsory unification of opinion achieves only the unanimity of the graveyard. " "The First Amendment was designed to avoid these ends by avoiding these beginnings. " And I think that's an important statement over the years from Justice Jackson. And then he goes... in just a recent article in the New York Times called "In Chicago a Holy War Over the Flag. " by J. Anthony Lukas, a very excellent former reporter for the New York Times, he said, "Whatever pain freedom of expression may inflict, it is a principle on which we can give no ground. " And I understand that this flag has serious important meanings. The Chief has mentioned many times that it is not just pieces of material, blue and white and red. That has real meaning to real people out there. But that does not mean that it may have different meanings to other people out there and that they may not under the First Amendment show their feelings by what Texas calls desecration of a venerated object. I think it's a most important case. I sense that it goes to the heart of the First Amendment, to hear things or to see things that we hate test the First Amendment more than seeing or hearing things that we like. It wasn't designed for things we like. They never needed a First Amendment. This statute or this amendment was designed so that the things we hate, Terminiello's remarks, burnings of flags, or what have you can have a place in the "marketplace of ideas" and can have an area where protest can find itself. I submit that this Court should on whatever ground it feels right, should affirm the Texas Court of Criminal Appeals with reference to this statute and this conviction. Thank you very much. William H. Rehnquist: Thank you, Mr. Kunstler. Ms. Drew, you have four minutes remaining. Kathi Alyce Drew: Thank you, Your Honor. One or two points very, very briefly. There is absolutely nothing in the information that was filed or in the jury charge that was submitted to the court which would have authorized a conviction for any words that had been spoken by Mr. Johnson. It is true that the trial prosecutor did make about half a page in his 20 page summation to the jury, a reference to the law of parties because an individual for a criminal offense in Texas can be held liable as a party if certain factors are shown. And I think that was incumbent upon him, but there is absolutely nothing that would have authorized a conviction for any words that were spoken. I also fall to see how, if I understand Mr. Kunstler's concession, if one can protect government flags why one cannot protect a flag which is not necessarily the property of the government because the danger of a breach of the peace is the same and the denigration to the symbol is the same. Unless the Court has questions, that will conclude my remarks. William H. Rehnquist: Thank you, Ms. Drew. The case is submitted.

William H. Rehnquist: We'll hear argument first this morning in Number 88-1377, Louis W. Sullivan v. Brian Zebley. Mr. Kneedler. Edwin S. Kneedler: Thank you, Mr. Chief Justice, and may it please the Court: The court of appeals, in this nationwide class action, invalidated the central regulatory requirement that has governed eligibility for children's disability benefits since the outset of the Supplemental Security Income program in 1974. The regulation at issue provides that in order to qualify for benefits a child must have an impairment or a combination of impairments that is included in the Listing of Impairments in the regulations, or is equal in severity to a listed impairment. We submit that the court of appeals erred for four reasons in invalidating these regulations on their face. First, the regulation Respondents challenge is supported in a number of respects by the text and legislative nistory of the definition of disability in Title XVI. Second, the regulation requiring that a children's impairment meet or equal a listed impairment was adopted in 1974 at the outset of the SSI program. It therefore represents a contemporaneous interpretation of the act by those charged with its initial implementation, and a consistent and long-standing interpretation of the act as well. Third, Congress ratified this regulatory requirement that Respondents challenge in 1976, soon after the SSI program got underway. Specifically, in the 1976 unemployment compensation amendments, Congress directed the Secretary to publish the objective criteria that he was then developing internally to implement the regulation, and to use those criteria to determine disability. And the special Part B Listing of Impairments utilized for children were issued the following year, pursuant to that statutory directive and special delegation of legislative rule-making authority. And fourth, the Secretary's regulatory approach adheres to the functional orientation of the Social Security Disability programs. The Part A Listing, which children can also qualify under, is principally applicable, or was designed for adults, and it identifies those impairments which the Secretary has determined would render an adult unable to work, which is itself obviously a functional predicate for the Listing. The Part B Listing has the same thrust. In 1974, in fleshing out the statutory standard of comparable severity, the Secretary, after a two year study in the initial implementation of the SSI child's program, with the aid of physicians and other experts, identified those impairments that have an impact on a child's growth and development that is comparable to the effect that an impairment has on an adult's ability to work. Therefore, the Part B Listing carries forward the functional orientation of the act. Furthermore, some of the specific listings under Part B require a further and explicit consideration of functional aspects. For example, and of particular relevance in this case, is... are the mental impairment listings. For example, the mental retardation, under which Respondent Zebley and Respondent Raushi were evaluated, specifically provides for consideration of functional aspects. I call the Court's attention in this respect to page 233 of the joint appendix, where the mental retardation listing is included. I am informed by the Department of Health and Human Services that 40 percent of the children who are found disabled are found disabled because of mental retardation. And Listing 12... 112.05 identifies the qualifying standards as, in the alternative, achievement of only those developmental milestones generally acquired by children no more than one-half the child's chronological age, and IQ of 59 or less, or an IQ of 60 to 69, inclusive, and in addition a physical or other mental impairment imposing additional and significant restriction of function or developmental progression. This is at the bottom of the page. So, it seems to us particularly odd in this case that the claim would be leveled that the special Part B Listing is not faithful to the functional orientation of the act, both because functional standards are imbedded in the Listings themselves, as the Secretary specifically announced when the Part B Listing was adopted in 1976, and-- Sandra Day O'Connor: Mr. Kneedler-- Edwin S. Kneedler: --Yes. Sandra Day O'Connor: --Isn't a functional evaluation often a necessary predicate to making a medical diagnosis? Edwin S. Kneedler: Yes, and the way in which this program is implemented, in fact, provides for a functional assessment in many circumstances. Sandra Day O'Connor: Well, if it makes it to the list. But, I guess you would acknowledge that there are children with impairments that aren't on any of the Secretary's lists. Edwin S. Kneedler: Well, there may be... there may be children who aren't on the list, but that doesn't... I mean, there are two points about that. One is, of the... if the impair... if the specific impairment is not listed, if the specific criteria for the impairment are not listed, the child can still establish that he meets the level of severity set forth in the Listings by showing that he... that his particular impairment equals a listed impairment. And in determining that, in matching something to the Listings, what the decision-maker has to do is look for the medical signs and findings and symptoms of the impairment. One of those findings are functional, would be the functional limitation imposed on the child as a result of his impairment. If those functional limitations match the level of severity in the Listing, he will be found eligible. Sandra Day O'Connor: If... if it were an adult being considered for disability benefits, steps 4 and 5 of the evaluation appear to catch some severe impairments that aren't on the Listings for adults. Edwin S. Kneedler: Well, the principal thrust of steps 4 and 5, step 4 is if the person can do his past work he is not disabled, and that would... we'll put that to one side. But step 5, what step 5 provides for is the determination of whether the individual can do other work that exists in the national economy, taking into account his residual functional capacity and-- Sandra Day O'Connor: I understand, but would you agree with me that those steps, for adults, appear to pick up some people who aren't on the lists? Edwin S. Kneedler: --It may pick up some people, but this gets to the point I was going to make. The reason that a... that an adult would be found disabled at step 5 would typically be, not because of the severity of his impairment standing alone, but because he, in addition, has an adverse non-medical factor, a... an adverse vocational factor. He is of advanced age, he is of poor education or he has poor job training. Congress specifically provided, in paragraph (B) of the statutory provision here, for those vocational factors to be considered in the case of an adult. It did not include a similar list of non-medical factors for children. Sandra Day O'Connor: Well, what is it that the Secretary has done, beyond Part B Listing, to ensure that children's impairments, of comparable severity to an adult, are handled properly? Edwin S. Kneedler: Well, what the... what the... it is the Part B Listing-- Sandra Day O'Connor: I mean, it sounds like all the Secretary has done is to make the Part B Listing, which admittedly doesn't include some major diseases, as I understand it, things like Down syndrome and cystic fibrosis and heaven knows what all. Edwin S. Kneedler: --As to that, Justice O'Connor, I... the Respondents and some of the amici, I think, have a misapprehension about the way the Listing works. The Listing is not a listing of diseases. It is a listing of mental and physical impairments. The statutory term is mental and physical impairment. And what the Listings do is go body system by body system and identify impairments to the body system. For example, the ability to move a limb, or the... or mental impairments, cognitive or emotional, or other... other disorders. What the Listings do is identify impairments in the body system. Any one impairment might be due to a variety of different diseases. For example, Down syndrome, as we point out in our brief, Down syndrome children are typically quite mentally retarded, and the experience, as we point out in our supplemental brief, with Down syndrome is most Down syndrome children are found disabled because they meet the mental retardation listing. And if the Down syndrome child would have other disorders associated with that, such as a digestive problem or something of that sort, then you would look to that body system listing to see whether the effect of the impairment on that body system renders him disabled. So, the fact that a particular disease is not listed as such under the Listings is really beside the point. And again, the statutory definition of disability for an adult refers to an individual who has a physical or mental impairment, that he is unable to engage in substantial gainful activity by reason of a physical or mental impairment, which is the effect on the body's ability to perform, not the medical diagnosis of a particular disease. And for children, I... in further response to Justice O'Connor's question, for children the statutory standard in the parenthetical at the end of the statute... of the statutory definition of disability is for a child with a mental or physical impairment of comparable severity. In other words, for adults the standard of disability is defined in terms of... the ultimate question is ability to work. Is the adult unable to perform substantial gainful activity by reason of his impairment. In other words, the ultimate question is that by... unable to work by reason of impairment, the disability to work. For children, though, the statutory standard is the impairment of comparable severity. That phrase does not focus on the end result of whether the child can work. The phrase comparable severity instead focuses on the severity of the impairment. Anthony M. Kennedy: So, under your view, the phrase, with reference to adults, unable to engage in any substantial gainful activity, is just irrelevant with respect to the child? Edwin S. Kneedler: It is not irrelevant in terms of-- Anthony M. Kennedy: Are you reading it out of the statute as to the child? Edwin S. Kneedler: --No. In terms of measuring, in terms of ascertaining what the phrase comparable severity means, what the Secretary did was to look at what is comparable in children to performing substantial gainful activity in adults. And as we point out in our brief, in the preamble to the '77 regulations, what the Secretary has explained is that in children the primary life activity isn't work, as it is for adults, but it's development and growth. And therefore the Secretary identified in the... in the special Listing for children the impairments that have an effect on development and growth in children that is comparable to the effect on the ability to perform substantial gainful activity in adults. Anthony M. Kennedy: And under your interpretation that's a functional analysis that is comparable to the functional analysis that you engage in in determining substantial gainful... substantial gainful activity standard? Edwin S. Kneedler: Right. For example, the Part A Listing for adults identifies impairments that the Secretary has determined would render an adult unable to work. And that is itself a functional... even though... even though the measurement of the severity of the impairment could be described as a medical measurement, and that is the way in which it's typically referred to, it does take into account functional impacts. The measurement of severity, in other words, is done in terms of its functional impact. For an adult, the ability to work. For a child, the level of severity is measured in these other ways, in terms of the child's ability-- Anthony M. Kennedy: It is still not clear to me, if you don't read it, that phrase, any substantial gainful activity, out of the statute, why is it that you require a hearing as to an adult, or an individualized determination, whereas you don't with the child. Or is that misstating the issue? Edwin S. Kneedler: --I think it... yes, I think it... I hesitate... yes, I think it is misstating the issue. Children, there is an individualized determination for children. Children are in a position to show that they have an impairment, their own medical condition, based on their individualized showing of what their impairment is, that is included in the Listings, or, if not included in the Listings, that it is equal in severity to a listed impairment. And that is the individualized determination. What the Secretary has done in the Listings, though, is to say... the statutory phrase comparable severity is very general, and what Congress... what the Secretary did, pursuant to Congressional authority, is to try to give content to that standard of comparable severity. Anthony M. Kennedy: Would there be a case where a 17-and-a-half-year-old could not obtain benefits, but then upon reaching 18 he could? Edwin S. Kneedler: It's possible, but... it's possible that he might, but it seems... there are two reasons for that. One is that the over 18, the touchstone of the disability program is ability to work, and thus at age 18 the decision-maker would look at the child's ability to work. And in looking at that question, not simply... not only look at the severity of the impairment, but other non-medical, the vocational factors. A child, the child may have no significant education-- Anthony M. Kennedy: But if the disease... if the disease and the impairment is the same-- Edwin S. Kneedler: --If the impairment is the same, yes, but what-- Anthony M. Kennedy: --How is it that at age 17 and a half you don't obtain the benefit and at 18 plus you do? How... how can you say that, based on that result, the... there is comparability? Edwin S. Kneedler: --Well, the reason, there is comparability in the severity of the impairment. In the hypothetical you gave me, the severity of the impairment is the same in the two examples. The statutory standard is comparable severity, which, you look at the severity of the two impairments. For the hypothetical person you are describing, it would often be the case, I think, that the reason the person would become disabled at age 18 is because you then take into account the additional non-medical factors, the vocational factors. There is age, education, and work experience. Anthony M. Kennedy: But I thought you said that you have to take that into account anyway, because you are not reading that out of the statute as to children. Edwin S. Kneedler: No, well, what I said was you don't read it out of the statute in the sense that, in deciding what is comparable severity. The touchstone is comparable severity to an impairment that would render an adult disabled. In the example that you are giving, and I think in most of the cases involving adults who are found disabled at step 5, it isn't the impairment alone that renders them disabled. It is the impairment plus an adverse vocational factor. Antonin Scalia: Mr. Kneedler, I... this... this exchange is bringing out what has puzzled me. You say it is an impairment comparable to one that would render an adult disabled. But what you have just demonstrated is that that is not an absolute. It depends on the adult. Which adult are you using for your comparability analysis here? An adult who has a lot of skills, or an adult who has little skills? Edwin S. Kneedler: I think your question highlights the difficulties with Respondents position. Antonin Scalia: Are you using a middle aged adult as your standard, or an elderly adult? Edwin S. Kneedler: The comparable, the touchstone is the Part A Listings, which would render adults generally disabled. In other words, it would render an adult disabled on medical grounds alone-- Speaker: Alone. Edwin S. Kneedler: --excluding a functional assessment. The... an adult who might be found disabled not on the basis of impairment alone, but on the basis of his advanced age or inadequate job training or education, that is not a person... his impairment... his impairment may not be of comparable severity, would not be. Because the Listings are intended to match comparable severity of children's disability, or children's impairments and adults. It is when you go beyond that, and typically the adult would be found disabled for some other reason. So it is not... it is not an impairment that you could confidently conclude in that situation would render an adult disabled, on the basis of the impairment alone. John Paul Stevens: I think I understand. Mr.... let me just clear up one thing in my mind, Mr. Kneedler. In step 5, in the adult situation, as you describe it, you often rely on non-medical factors, that are... poor job training or age or something like that. But is it not possible, in step five for adults, that the determination could be based entirely on medical factors, none of which itself was sufficient under the Listings on... in step 3. Edwin S. Kneedler: It's... it's conceivable. I mean, the progression... the progression would contemplate that that should happen. But the way the Listings and step 5 interact, step... the Listings are intended to identify those impairments that would enable you to conclude that the person is disabled solely because of his-- Speaker: Correct. Edwin S. Kneedler: --his impairment. The latter steps are designed to factor in the age, education and work experience. John Paul Stevens: Yes, but they also, it seems to me, factor in the possibility that there is a combination of three or four factors, none of which in itself is sufficient to meet the standards on the step 3 list. And I am not quite sure how you take care of that problem in the non-adult situation, where you have these categories, which I see... 12 categories, or whatever they are, and perhaps the child would not satisfy any one standard, but conceivably a combination of just being short on three or four of them, would be comparable to the step 5 problem. Edwin S. Kneedler: But, the combination of the impairments can also be considered, in fact is required to be considered, at step 3 of the Listing as well. In other words, if a child has two impairments, no one of which meets or equals the Listing standing alone, then the decision-maker has to look at those impairments in combination and look at their effect-- John Paul Stevens: What regulation, what part of the regulation requires that? Edwin S. Kneedler: --Well, there are... in particular, I am referring to SSR 83-19, which is included at page 239 of the joint appendix. And also, that interprets a regulation, which is cite, to the Court, 20 C.F.R. 416.926, which is medical equivalence. And that... paragraph A of that regulation says, and this is not in the record, but it says if you have more than one impairment, and none of them meets or equals a listed impairment, we will review the symptoms, signs and laboratory findings about your impairments to determine whether the combination of your impairments is medically equal to any listed impairment. So the regulation requires that-- John Paul Stevens: Medically equal to any listed impairment. But see, my hypothesis is that none of them would be medically equal to the particular standard-- Edwin S. Kneedler: --No, but what that means is medically-- John Paul Stevens: --for the skeletal system, or the mental system, whatever it is. But you nevertheless... it seems to me... well, maybe I just-- Edwin S. Kneedler: --Well, the way it works is you... the ultimate inquiry is whether the combination of your impairments rises to the level of severity of impairments set forth in the Listings in general terms-- John Paul Stevens: --Well, my hypothesis is that it wouldn't. It wouldn't meet any one of the separate standards. Edwin S. Kneedler: --Well, but what-- John Paul Stevens: Does it then follow that child could never be termed permanently disabled? Edwin S. Kneedler: --No, what... if it doesn't... what the decision-maker does is look at the combination of impairments and compare it to the impairment that is most similar. You look at what expression of impairments predominates, is it mental retardation with maybe secondary physical problems or vice versa. Depending on which one predominates, you look at that listing, and then you take into account additional functional limitations imposed by the second... the additional or the multiple impairments and see whether they rise to the level of impairment severity set forth in the Listing. Because, again, the statutory touchstone is comparable severity, the severity of the impairment, not residual functional capacity, what the individual can do despite his impairment. So the Listings specifically do take into account the concern you are raising, of multiple impairments. Sandra Day O'Connor: Mr. Kneedler, the Respondents say that the Secretary has interpreted Regulation 83-19, or applied it, in such a way that it just doesn't consider functional impairment. And I understood from your brief the Secretary is considering changing it or clarifying it or something? Edwin S. Kneedler: Clarifying it. Let me... let me explain that-- Sandra Day O'Connor: Which indicates to me maybe there is a problem there. Edwin S. Kneedler: --Well, I think it is a problem in Respondents' misconstruction. Respondents' allegation is not as to the Secretary's practice. As I understand their argument in the citations in the brief, it is entirely based on what they perceive to be the language of the regulation, which they say precludes consideration of functional impair... functional limitations resulting from an impairment, in deciding whether something equals the Listings. The Secretary does not construe his own interpretive ruling in that way, and under Udall v. Tallman the Secretary's interpretation of SSR 83-19 is entitled to very substantial deference. And, after all, 83-19 is itself an interpretive ruling that interprets the regulation, which does provide for an equivalency determination. But beyond that, I mean, several factors point out that Respondents are incorrect in assuming that the Secretary has read his own regulation to bar consideration of functional impact. For... we discuss both these things in the supplemental brief that we filed last Wednesday. In the typescript version, in footnote 6, we cite the... a passage from the physicians' training manual, which is sent out to the physicians in the field who are specifically charged with making a determination of whether a child's impairment equals the Listing. And this instruction pertains to adults, but the point I am going to make pertains to children as well. It says medical equivalency permits a physician to arrive at a judgment that the findings, although not exactly mis... matching the listed criteria, have the same effect as a listed impairment with regard to inability to perform work-related activities. For a child the concept would be that, in deciding equivalency, you can see whether the child's impairment, although not listed, has the same impact on his ability to perform the sorts of functions to which that body system relates as a listed impairment. And the other point I would make, that we also point out in our supplemental brief, is that the... Secretary, through SSA, undertook a study of the child's disability program this year. And the preliminary results of that study, requested by the Senate Finance Committee in its consideration of pending legislation, evaluated and discovered certain areas where the Secretary thought that there... that there should be additional attention to making sure that adjudicators are fully complying with the Listings. And one of the areas in which the study described areas in the men... area of mental impairments, was that as to those that were found not to equal the Listing, erroneously, they were almost exclusively based on the failure to consider how all documented impairments combined to affect the child's overall functional capacity. So the Secretary, in evaluating decisionmaking by lower... by... in the sample of cases that were obtained, specifically reaffirmed the idea that this... that the equivalency concept is not construed or applied. Antonin Scalia: Where is that statement you have just quoted? Edwin S. Kneedler: This is at page 7 of the typescript version of our... of our supplemental brief, I am sorry, that we filed on November 22. That quotation-- Antonin Scalia: Well, so that may show that other people are misinterpreting the regulation as well, but I suppose it shows, at least, the Secretary doesn't-- Edwin S. Kneedler: --Well, the error rate for mental impairments was only 10 percent. Now, one hopes that it could be brought down from that, but in the review of the cases the Secretary determined that 90 percent of the denials were correctly decided. Now, it... I don't think there is any indication that adjudicators generally, and Respondents haven't pointed to any, that adjudicators generally believe that functional... functionally related consequences can't be taken into account in the equals area. If there are no further questions, I would like to reserve the balance of my time for rebuttal. William H. Rehnquist: --Very well, Mr. Kneedler. Mr. Weishaupt. Richard P. Weishaupt: Mr. Chief Justice, and may it please the Court: The question presented in this case is whether the admittedly-- Thurgood Marshall: If... you wind on the side... if you wind that up on the side-- Richard P. Weishaupt: --Thank you. The question in this case is simply whether the admittedly disparate treatment afforded children is consistent with the language passed by Congress. Congress, as Mr. Kneedler correctly pointed out, required that children were to be treated in such a way that if they had an impairment or combination of impairments of comparable severity to that which would disable an adult, then they would be found disabled. It is our belief, and it is adequate... amply supported by the record, that that is simply not the case, that the Secretary frequently has a great deal of difficulty dealing with children who have impairments that combine a number of different factors, or that are not on the list... on the very short list that the Secretary has. Sandra Day O'Connor: --Well, Mr. Weishaupt, the... Mr. Kneedler says that the equivalence determination takes care of that. Richard P. Weishaupt: Yes. Sandra Day O'Connor: And I think you better address yourself to that, that the Secretary's interpretation is that the equivalence determination allows consideration of the functional impact of even multiple conditions. Richard P. Weishaupt: The Secretary's interpretation, as promulgated by Ruling 83-19, which is the only thing on paper that addresses the question of equivalence, quite simply states that functional consequences are not to be determined. To quote briefly from that ruling, at joint appendix page 240, "The functional consequences of impairments, irrespective of their nature or extent, cannot justify a determination of equivalence. " And that, quite frankly, is at the heart of this case. The Secretary does not have an adequate means with which to address the difficult cases. Yes, it is true that many retarded children do quality for disability benefits because their retardation meets the Listing. But the problem is those children who have a combination of impairments, or who have a rare disease, that simply does not come on the Listing or that have an atypical amount of functional loss. The Secretary's argument seems to be, at least insofar as the Listings incorporate function, it seems to be that the Listings represent the Secretary's estimate of the typical impact of an impairment upon the typical case. But that is not the way that the Social Security Act is supposed to function. The Social Security Act is supposed to function in order to make case-by-case determinations of each individual, not only looking at that child as an individual and matching his findings up with the Listings, but also to determine how those impairments actually affect that particular child, what that child can do and what that child cannot do. I think a good illustration of the problems that the Secretary has with more rare diseases is found in the Wilkinson case, which is... which is cited in both our briefs. In that case the child there suffered from a rare liver disorder that meant that he swelled up at night, that he ran fevers three or four times a week, that he constantly cried, he couldn't leave the house; he was allergic to all standard food. But the, that particular rare liver disease was not on the Listing. He was also, as a result of the toxic chemicals that were thrown off by his liver, slightly retarded. The Secretary's defense of that case was that the closest listing was the mental retardation listing, and since his retardation didn't yield him an IQ of under 69, that he simply was not disabled. There is no doubt that an adult in that case would get a very different examination. Sandra Day O'Connor: If the Secretary took out the language there, in that Regulation 83-19, so that a medical... a medical equivalency determination also looked to functional impairment, would there be anything left of your case? Richard P. Weishaupt: That would go a long way toward resolving the problems that we have with the Secretary's approach. The remaining problem would be that the Listings for children are modeled to reflect exactly the same degree of impairment that is used for adults, in that process that is used for adults. The problem with that is that for... the Listings do not represent the inability to perform substantial gainful activity, they represent a much higher cut, a cut that allows the Secretary to make presumptive determinations for the people who are so impaired that there is just no question that they can't perform substantial gainful activity. In fact, the Secretary, with an express delegation of authority from Congress, has set the Listings at the level that is used for determining disability among disabled widows. Disabled widows are found to be disabled if they cannot perform any gainful activity, which, according to the legislative history of that provision, is to be a much more stringent test than the test used for workers both in the Title II program, and in the SSI Title XVI program that was modeled on that Title II program. A number of courts, including the court in Willowford v. Harris, have criticized the mechanical results that sometimes occur from using a Listings-only approach for widows. But whatever may be the shortcomings of that approach for widows, Congress clearly did not say that children shall be found disabled if they have an impairment of comparable severity to that which would render a widow disabled under the standard in the Act. And those were the two standards of disability that were in the Act at the time of original passage. On the one hand you had the inability to engage in substantial gainful activity, which was the test for workers, and then there was also the test for disabled widows, which was the inability to perform any gainful activity under regulations promulgated by the Secretary to so determine. Congress meant to help children. All of the brief legislative history of the original SSI Act showed that there was grave concern for what Congress called among the most disadvantaged of young children... of all Americans. And the Secretary's approach of conflating the process for children and adults... I am sorry, for children and disabled widows, into one test, which is seen throughout his regulations and clarifying rulings, is simply inconsistent with the plain meaning of the statute. Mr. Kneedler made the suggestion that many of the adults who qualify at step 5 do so because they have adverse vocational factors: they are approaching advanced age, they are poorly educated. That is true. However, 20, fully 25 percent of all the qualifying adults, according to the Secretary's figures, quality because they... at that step 5, because they have either a medical or a medical/vocational set of problems that renders them disabled. It is very clear from the Secretary's regulations and the cases in this Court, that a person with no adverse vocational factors, a young person, well educated, with job training, could quality as disabled even if he or she did not meet the Listings. That is what the City of New York case was all about, where apparently there was some subregulatory documents that gave the impression that if a younger worker had a mental impairment that left him extremely disturbed, but he did not meet all of the criteria of the Listing, Social Security was assuming that the fact that he didn't meet the Listing meant that he must therefore be able to perform substantial gainful activity. That position was renounced by the Secretary after being criticized in the district court and in the court of appeals. And in this Court, the Secretary only addressed himself to the question of remedy. Antonin Scalia: The Secretary explains that, Counsel, by saying that for an adult like that, a young adult like that, the statute provides a clear criterion: the ability to work. It provides no such criterion for a child. And therefore you have to resort, the Secretary says, to comparable severity, which is what the statute says, which in turn forces you to look to particular functional disabilities and see if the child has them. Richard P. Weishaupt: Yes, but the Secretary does not take a functional approach. Rather, he takes a... an approach that compares the child's listings to one... problems to one of 57 Listings. Antonin Scalia: I don't know how we resolve that. You say he doesn't, and he say... he says he does, and points to language that... obviously allows them to use functional considerations. How are we to resolve that dispute? Richard P. Weishaupt: I think by looking carefully at the wording that actually exists in Ruling 83-19, which states that functional impairments cannot be looked at in order to arrive at a conclusion that someone has a impairment that rises to Listing level, which in and of itself is a more difficult test than an adult would ever be put through. But even putting that aside, Justice Scalia, the Secretary does not allow a child with atypical symptomatology to show that even though he doesn't meet A, B and C, that his impairments are so severe in A and B that he should be found to be disabled. That is why we find the Secretary's practice of awarding benefits on children's eighteenth birthday, because when they reach 18, then they can be looked at with a... in a holistic functional approach, and then they can be awarded benefits. Antonin Scalia: Once again, there is just a flat disagreement as to what... I guess what the fact is on that. Mr. Kneedler has just told us quite the opposite of what you said. That if the child has A, B... A, B and C, no single one of which rises to the proper level, the combination of the three nonetheless, on the basis of the functional results of the three, would suffice. Richard P. Weishaupt: The Secretary will allow an equivalence finding to be made in the circumstances where a child has a combination of impairments that together yield the signs, symptoms and laboratory data that are necessary to meet one of the Listings. So, in other words, if the child with the rare liver disorder also had an IQ of 69 or below, yes, he would be found to meet the listings. And if... and he would be found to meet the Listings. However, in a situation where the... where the combination of impairments can't provide the kind of test scores that are necessary because they are so disparate... we cite... one of the amici cites in their brief, a child with severe hypertension, asthma and obesity, and there is just no link up of, in terms of the symptoms. Each set of symptoms is distinct, and they don't cross over into other listings. That child has no where to turn, because the Secretary clearly states in that ruling, 83-19, that it is forbidden to make an overall assessment of function and try to figure out what level of function is suggested by a Listing and-- William H. Rehnquist: Does the record give any indication of how often that occurs, that three different kinds of symptoms that you just referred to? Richard P. Weishaupt: --No, although the brief of the AMA and the American Academy-- William H. Rehnquist: Is that the record? I mean, does it rely on the record? Richard P. Weishaupt: --No, it relies on their knowledge to state that children frequently suffer from a wider array of disabilities, and frequently have more combinations. However, the class of children, if you will, who suffer from that wide array is probably not large in absolute terms, but it is significant for those children who are denied SSI benefits. The SSI children's program only awards benefits to a quarter of a million children, and approximately 100,000 claims are made each year, 50,000 of which are turned down, and 50,000 of which are granted. Of that 50,000 that are turned down, some number, the record does not reflect what, of those children suffer from a combination of impairments, like the cases cited in the amicus briefs, that defy evaluation under the Secretary's approach. For many children the Listings approach works adequately. But it is those children who don't, who need a case by case adjudication, for which we claim that it is important for the Secretary to have a system with the flexibility to provide that, just as he has a system to provide that kind of flexibility for adults. William H. Rehnquist: Did any of the Plaintiffs in this case have the sort of situation that you are talking about, with the three different kinds of symptoms? Richard P. Weishaupt: No, although Joseph Love suffered from a combination of mental retardation and emotional disorders, failed third grade three times, eventually was found to be so disturbed that he could not even be in a classroom with other emotionally disturbed children. He was found not to be disabled because one of the criteria in the Secretary's mental health listings for children looks at self-care skills. And since Joseph helped his mother with the dishes once in a while, that was found to be adequate self-care skills so that he didn't rise to that level. But the fact that he couldn't even achieve an education in a forum particularly designed for his particular needs was irrelevance under the Secretary's formula. We are not saying that all of these determinations are easy, but that is why the Secretary is delegated authority to make individualized determinations. And we submit that as long as the standard is one of comparable severity, that he can't do it in a way that is so markedly different and markedly inferior from that for adults. Anthony M. Kennedy: But when the Secretary found that his ability to help his mother entered into the equation, isn't that the very functional kind of analysis that you insist ought to be made? Richard P. Weishaupt: Yes, but it is only used in that case to deny. What was not done was to determine whether there were other functional deficits in other areas that were significant enough to outweigh the fact that he could do the dishes, even though he couldn't even interact with other children. So, when... and in fact, Joseph Love was subsequently found to be disabled, when his symptoms dipped, although there is still a question of that period when he was helping his mother wash the dishes, whether he was disabled. So what we are saying is that we... the Secretary violates the statute by not being able to allow his adjudicators to look at overall function. Not necessarily that looking at function is automatically going to qualify someone as disabled, but rather that one needs to look at the overall function, just as one does for adults, to avoid mechanical results. To avoid assuming that because the typical effects of a particular impairment are as they are in the Listings, that they may not actually take place or affect an individual in quite that typical way. That a child may not respond to medicine the same way that another child does, that he may experience pain, that he may have a whole plethora of functional problems that are fair game for adults to attempt to use to show that they are disabled. Unless there are further questions, I will conclude my remarks. Thank you. William H. Rehnquist: Thank you, Mr. Weishaupt. Mr. Kneedler, you have five minutes remaining. Edwin S. Kneedler: Thank you, Mr. Chief Justice. I do have several things I wanted to say. First of all, this class action was brought as a facial challenge to the requirement that a child show that his impairment meets or equals the Listing. As we have shown, that requirement was established in 1974, it was ratified by Congress in 1976, and it has been in place ever since. Particular disagreements about the way the Listing might be applied in a particular case, and whether one child should be granted or denied under that... under the Listing, are simply not properly before the Court in a class action. And, for example, the particular way in which the equivalency concept might be applied in this case, or one situation or another, is not before the Court. But with reference to the equivalency-- John Paul Stevens: Why isn't it before the Court, if there are members of the class who would fit the description of your adversary? Why isn't... why isn't a class representative entitled to make those arguments? I'm not quite... I don't quite understand. Edwin S. Kneedler: --Well, the question... this suit was brought to challenge the requirement that a child must meet or equal the Listings-- John Paul Stevens: I understand. Edwin S. Kneedler: --not what... not what the content of the Listings themselves was. And this is a suit to challenge the meet or equals requirement which has been in the regulations for a long time. John Paul Stevens: Well, but if there are members of the class, I gather... I don't have the definition of the class in front, it would include this person in the... Wilkinson case, or whatever it was that he referred to, why can't the argument be made that that requirement is invalid as applied to some members of the class? Edwin S. Kneedler: Well, we just can't tell on this record, on the basis of the record of this, of a hypothetical member of a class who might have one disorder or not, first of all whether he would be found disabled. I mean, as I have explained, if the severity of his impairment is equal in severity to one that is listed, he would be found disabled. John Paul Stevens: Well, I understand if it is equal to one that is listed, but looking at page 240 of the regulation, where you called our attention to paragraph 3 on 239, it seems to me that there would be people who would have... it would be people under 18, who would have total disability but not meet one of the standards. Edwin S. Kneedler: Well-- John Paul Stevens: Because you specifically say the functional consequence of the impairments, i.e., RFC, irrespective of their nature or extent, cannot justify a determination of equivalence. Edwin S. Kneedler: --And I think the parenthetical is... explains what this sentence is about. What the Secretary is saying is we don't decide children's cases on the basis of the residual functional capacity. In other words, what a child can do despite his impairment. That is what you do for an adult. For an adult you look at the impairment itself. It's really two sides of the same coin. Instead of looking at what he still has left, you look at what has been taken away from him by virtue of his impairment. You match that impair... that impairment to the Listings. And in deciding whether the impairment is severe enough-- John Paul Stevens: You match one of the impairments to the... you match to one-- Edwin S. Kneedler: --You match the combined effect of the impairments, as-- John Paul Stevens: --To only one of the Listings. Edwin S. Kneedler: --To the one that is most near, most nearly applicable. Speaker: Yeah. Edwin S. Kneedler: And that is not to say that you disregard the other aspects, but you check to see whether the child's impairment has... whether his impairment has a similar functional impact on him that the listed impairment has on a child who has that impairment. Byron R. White: Mr. Kneedler, what is necessary here to hold a regulation facially invalid? Is it enough to show that in some instances it-- Edwin S. Kneedler: Not at all. It has to be... it has to be the content of the regulation has to be, as we have explained, manifestly contrary to the Act, that the Secretary can't even proceed in this manner. And that, if the regulation is misapplied in a particular case, that is not a proper subject for a class action lawsuit such as this. This-- Byron R. White: --Well, but what if the regulation, as applied in particular cases, in some cases, would be inadequate to satisfy the-- Edwin S. Kneedler: --Well then a claimant who wants to make that claim could make that in his own individual suit. Byron R. White: --Well, I know, but would it justify a facial-- Edwin S. Kneedler: Not at all. And we're here-- Byron R. White: --Even, even though the regulation should be different to respond to the statute in a few cases. Edwin S. Kneedler: --That's right. And, for example, if the Court were to conclude, contrary to our interpretation and contrary to Respondents' own best interests, that the 83-19 does not allow for consideration of functional impact, the proper course would be... would be to invalidate that ruling in a proper case. As we say, we don't think that's here, but-- Antonin Scalia: But if the regulation... Mr. Kneedler, you are treating this as though the question whether a regulation can be stricken on its face is the same as whether a law can be stricken on its face as unconstitutional, and the test there is whether in any of its applications it could be constitutional. Surely the test for regulation is not whether in any of its applications it can be valid. Edwin S. Kneedler: --No, but as Respondents-- Antonin Scalia: It has to be valid in all of its applications as written, at least. Edwin S. Kneedler: --Yes. Antonin Scalia: Or it has to be, at least theoretically... on its face it must theoretically be able to lead to the right result in all cases, isn't that right? Edwin S. Kneedler: Right. And the... theoretically it can here, because the only regulatory requirement at issue is whether the child can meet or equals... equal the Listings. That is theoretically possible of meeting the statutory standard of comparable severity. If, in a particular case, the Listings themselves are inadequately applied, then that is something to be taken up elsewhere. But as to the regulation being challenged, that... it's valid in all its applications. Thank you. William H. Rehnquist: Thank you, Mr. Kneedler. The case is submitted.

Warren E. Burger: We will hear arguments next in 76-906 United Air Lines against McMann. I think you may proceed whenever you are ready Mr. Aikens. Arnold T. Aikens: Mr. Chief Justice may it please the court. This matter is before the court on petition of certiorari to the Fourth Circuit Court of Appeals. The case arises under the Age Discrimination Act and presents a very narrow issue. That is whether an involuntary retirement of a person under age 65 pursuant to a bona fide pension plan, adopted many years before the Act is permissible without further justification. A stipulation in this case has been entered in to as to the facts and they maybe very briefly stated. The respondent McMann began his employment with United Air lines in 1944 and during the course of his career, he held several positions. He was retired at the age of 60 in 1973 and at that time held the position of technical specialist aircraft systems, which is a flight management position. At the time, respondent began his employment with United. The United had a pension plan in existence, its membership was voluntary. Respondent did not elect to join that plan until several years later in 1964. At the time, he joined the plan his application card indicated that the normal retirement age was 60 years, thereafter he received annual reports from the company describing the benefits he had accrued and on the face of each of these reports the normal retirement age was stated as 60. Prior to his retirement in 1973, respondent notified the Secretary of Labor that he intended to sue on the ground that his retirement violated the Age Discrimination Act. The Labor Department responded that United's plan was a bona fide plan, and in as much as it had been adopted many, many years before the Act that it did not appear to be a subterfuge. Respondent, then filed his action in the Eastern District of Virgina, the case was submitted on cross motions for summary judgment and summary judgment was granted in favor of United. He appealed to the Fourth Circuit, claiming that his retirement violated the Discrimination Act. United contended that an expressed exception. Section 4(b)2, 4(f)2 expressly provided that involuntary retirement was authorized pursuant to a bona fide plan that was not a subterfuge to evade the purposes of the Act. United relied upon then the only appellate decision Brennan v. Taft Broadcasting, and said that in as much is its plan had preexisted the Act by some 26 years. That it therefore could not be a subterfuge which was the holding in the Taft case. The Fourth Circuit reversed. The substance of its holding was that any involuntary retirement is presumed to be a subterfuge to evade the purposes of the Act. Looking to the history, the legislative history of the Act, the court said that in order to avoid the condemnation of subterfuge, the employer must prove that the retirement related to either an economic or a business purpose and not simply age. In this decision, the Fourth Circuit stands alone, the Second , Third, Fifth and Ninth are now in conflict. Two sections of the Act are pertinent to this case. Section 4(a) provides that it should be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against individual with respect his compensation, terms, conditions or privileges of employment because of the individual's age. Speaker: Mr. Aikens, I am curious about one fact, does the record show that everybody under this plan was discharged at age 60 by United? Arnold T. Aikens: Yes the record does show. It is revealed in a system board decision, Professor Cox wrote which indicates that the normal retirement plan is followed for everyone at United. The Fourth Circuit's decision recognizes the fact that United has uniformly applied -- Speaker: No exceptions whatsoever. Arnold T. Aikens: No exception within United Airlines. Speaker: What happens if a person is retired in other section and then applies for reemployment? Arnold T. Aikens: We do not think, even if you are retired on one day and applied for reemployment, the following day Your Honor, we do not think that it is possible under the Act realizing the Act as to somewhat inconsistent phrases -- Speaker: What do you mean possible -- what would you say to – what would United say to the person applied? Arnold T. Aikens: United would have to say Your Honor that the Act does not ban a retirement program, that he has been retired and at the kind of employment the Act speaks of is those persons who have not been retired and are receiving pensions. Speaker: Would not the company at least have to say we will reemploy you but you will have give up your pensions? Arnold T. Aikens: I suspect that the company would, although this would inconsistent with its -- Speaker: Or the reason -- you are suggesting the reason that they would refuse to reemploy him as he is retired pensioner not that he is too old. Arnold T. Aikens: That is correct. Speaker: So this is a logical extension of his election to be on the pension plan. Arnold T. Aikens: His election to be in the pension plan and the uniform practice definitely. Speaker: Well, I have to interrupt that -- were there cases in the other circuits -- did the cases in the other circuits involve pension plans where people had the option to elect in or out? Arnold T. Aikens: I believe -- Speaker: Did any of them involve situations where once you are employed, you are under the plan willy-nilly and there is no way out of it? Arnold T. Aikens: Your Honor I believe each of the case involves a plan in which the employer could retain the employee after the age 60 or whatever it happened to be under the plan. Speaker: I do not understand that. Arnold T. Aikens: The other cases where involved plans in which a retirement was not mandatory at a certain age, the employee could be retained after 60 or whatever the age happened to be if the employer chose to do so. Speaker: That just sounds like there was not mandatory retirement at all. Arnold T. Aikens: That is correct, it is optional in the part of the company in most of those cases. Speaker: It was not much of a conflict. There is nothing -- Arnold T. Aikens: Not a conflict within the plan is there. There has been a conflict with in the application of the statute. Warren E. Burger: You said that when he first became employed back in the 40s that he did not go on to the plan by what process or steps did he move to get on to the plan, did he apply to go under it? Arnold T. Aikens: Yes Your Honor in 1964 he apparently made the determination to join the plan and did so, it is a voluntary election on his part. Warren E. Burger: Do you argue that, that is a contract? I do not observe in your brief anywhere that you argue that that constitutes a contractual undertaking between himself, voluntary contractual undertaking between himself and United? Arnold T. Aikens: It is a Your Honor, we deem it to be a contract, the retirement plan is -- Warren E. Burger: Does the contract clause enter in to this in anyway? The subsequent Legislation and the Court probably would have saught to be invalidated the contract, if there was a contract. Arnold T. Aikens: We do not think that the Legislation Your Honor has invalidated. Warren E. Burger: Well, but that is the position of the Court. Is it not? Arnold T. Aikens: That was the position of the Fourth Circuit yes Your Honor. Warren E. Burger: Does that invoke do you think the contract clause? Arnold T. Aikens: We do not believe so, Your Honor, the plan is. Warren E. Burger: But if it is a contract the Statue that has construed has some tendency to inherit does it not? Arnold T. Aikens: According to the Fourth Circuit and according to all other circuits, no. Warren E. Burger: Well, it is under review here. Is it not? Arnold T. Aikens: Yes. A Section 4(F)2 of the Statue provides that it shall not be unlawful for an employer to observe the terms of a Bona fide Seniority System or any Bona fide Employee Benefit Plan such as a retirement,pension or insurance plan which is not subterfuge to evade the purposes of the Act, except that no such employee benefit plan shall excuse the failure to hire any individual. Three cases essentially have focused on this exception. The first of this being the Taft case from the Fifth Circuit and it should be noted and I think that while it is alleged that the language of this provision is not plain, both Brennan and McMann have both stated that the language is unambiguous, the problem has been in the difficulty. The difficulty with applying the terms subterfuge. In Taft, the Court applied dictionary definitions saying that the bona fide plan was a genuine authentic good faith plan. It defined subterfuge as deception by artifice or stratagem thus applying a state of mind concept to the definition. The Court in Taft held that since the plan, it was involved in there preceded the Act by some six years. It obviously could not have been subterfuge to evade the purposes of the Act. United agreed with the holding of that case and relied upon at in McMann in. And as much as its plan was conceded to be bona fide paying reasonable benefits and had existed some 26 years before the Act. The McMann case rejected that definition and presumed any early retirement or the retirement before the age of 65 to be unlawful. It said that one must look to a reason unrelated to age to justify an involuntary retirement, and accordingly the Court said that that reason should be a business or an economic reason. The Court said that this conclusion was justified by its review of the history and the history that it looked to, was a single reference related to the 4F2 exception, that history provided that this section of the Act does apply to new and existing plans. That the exception emphasizes the primary purpose of the bill which is hiring and it said that Congress's purpose was to remove plans as a barrier to hiring persons within the protected age group. The history that the Court relies upon is really limited to the last phrase of section 4(F)2. This is sometimes been referred towards the Javits Amendment Senator Javits was extremely concerned that corporations would not hire persons within the protected age group simply because of the high cost of putting them into pension or benefit plans for a very limited number of years. He sought therefore to eliminate that as a barrier which of course that exemption has done. That exemption however addresses itself to another condition as well as this. Nevertheless it appears that what the Fourth Circuit has done is to say that if there is an economic factor to be considered in connection with the hiring of an individual, then there should be an economic factor considered with respect to involuntary retirement and so the Court imposed that as a criteria. The distinction however is that the Congress imposed the economic factor with respect to that portion of the exemption covering hiring. It did not do so as to involuntary retirement. Speaker: The First Circuit rule in Taft Broadcasting, any good faith retirement plan that was established prior to the enactment of this Statute of 1967, would permit in your submission, the involuntary retirement of any employee at whatever age that plan provides -- It could not be a subterfuge that is your submission is. that right? Arnold T. Aikens: The Court did not looked beyond that, however it is interesting that in its definition of bona fide, the Taft case did consider, not just a plan but a plan that provides reasonable reasonable benefits. Speaker: No, good faith is the English translation of bonne foi. Arnold T. Aikens: Yeah , That is correct. Warren E. Burger: The Third Circuit took a different view on that point that the Fifth Circuit, is it not? Arnold T. Aikens: The Third Circuit did Your Honor in the Zinger case and the Third Circuit said that it would not look at the term subterfuge in terms of the a mental concept or a state of the mind concept. It distinguished -- it looked to the purposes of the Act and it said that the Act is primarily aimed at prohibiting discrimination in hiring practices and in discharging and that the Act was intended to preserve the retirement plan. It did not ban them. It then made a distinction between a person who is retired and receiving reasonable benefits and the person who is totally discharged or who is retired but does not receive any benefits and it said this is the subterfuge, that person who is harmed because he does not have benefits and this is what that prohibition is aimed at. It therefore concluded that the subterfuge as used in Section 4(f)2 means a shame plan or one that does not provide reasonable benefits to the retire age. Speaker: Were retirement plan without any benefits, there is no difference than a discharge. Arnold T. Aikens: That is precisely the Court equated the two. Speaker: On what point would the amount of benefits distinguish between what is bona fide and what is not? Arnold T. Aikens: No Court- no court, Your Honor to our knowledge has ever said what is reasonable and what is unreasonable. Speaker: But the Statute does not use the word reasonable. Arnold T. Aikens: And the the Statute does not use the term reasonable. No the Statute addresses itself simply to -- Speaker: Whether or not it is bona fide and whether or not it is subterfuge. Arnold T. Aikens: That is correct Your Honor. Warren E. Burger: Well if it provided 10$ a month, that might cast some doubt on its good faith or it is just a subterfuge, would it not? Arnold T. Aikens: It would indeed Your Honor. Speaker: Well, I thought that was your submission, Mr. Aikens that no plan that has been added in to prior to the enactment of this Act, it would possibly be a subterfuge. Arnold T. Aikens: No plan that is a bona fide plan Your Honor. Speaker: It might or might not be bona fide -- the Statute sets up two criteria, does it not? It has to be both bona fide and not a subterfuge. Is that not right? Arnold T. Aikens: Correct, that is correct Your Honor. Speaker: And I thought it was your submission that no plan that antedated the enactment of this Legislation could possibly be a subterfuge. It might not be bona fide but it could not be the subterfuge. Is that your submission? Arnold T. Aikens: The United's position was consistent with the Taft position that if it is bona fide plan and did pre-exist the Act, then it would not be a subterfuge. Speaker: That could not be. Arnold T. Aikens: That is right. Speaker: How could a post- Act bona fide plan be a subterfuge? Arnold T. Aikens: A post Act plan coder could not be. Speaker: Post Act bona fide plan, how could that be a subterfuge? Are those words mutually inconsistent? Arnold T. Aikens: Some Courts have held that something that is bona fide cannot be subterfuge. Speaker: Then is the statute redundant? Arnold T. Aikens: It could be said that it is, if one were to look at subterfuge and define and not as or look to its application, could a plan be genuine but it could it have been put into effect with provocation of circumventing something, it might be a subterfuge. Speaker: Mr. Aikens, I suppose there is also a theory which is suggested although not completely explicit in the Third Circuit opinion that when there are adequate pension benefits as opposed to a case in which there is a discharge with no pension, you really do not have a discharge within the meaning of the Act. Arnold T. Aikens: That is correct Your Honor. Speaker: Do you take that position or do rely exclusively on 4(f)(2)? Arnold T. Aikens: No Your Honor, we rely both upon Taft and say the Taft was correct as far as it went and we also rely upon the Zinger case, the Third Circuit and these two decisions are not that far apart, they do not really reach different results, the distinguishing difference, I think between the two cases is that Taft concludes that a bona fide plan is one which provides reasonable benefits. The Zinger Third Circuit decision uses reasonable benefits to define the term subterfuge. And really they arrive at the same result but reasonable benefits is defined in two different words. We believe that the Zinger case too supports the position of our case and in that case the Court looked to the Legislative history. Speaker: What were in fact the benefits received by Mr. McMann under this plan, he did not elect to go under it until his 51st birthday. Arnold T. Aikens: That is correct. Speaker: Then he had only nine years of employment before his retirement and what were his benefits in terms of a percentage of his average wages or highest three year wages or whatever. Arnold T. Aikens: There are two parts to plan Your Honor, there is a fixed and there is a variable part. The fixed part in this case derives from the contribution of the employee, however because this was a pilot's plan subject to negotiation and collective bargaining. Mr. McMann only paid one year under the fixed part, United pays the complete contribution for the fixed part of the portion and the variable part he made contribution-- Speaker: Part of the collective bargaining agreement with AOPA, was it not? Arnold T. Aikens: Yes that is correct. The sum that he received from the plan is reduced by two factors. Number one, the fact that he was a member for a very short time and then secondly at the time of his retirement, he elected to accept a ten year option, that is a guaranteed payment for ten years which further reduced to -- this would have amounted in dollars and cents to some thing like $450 in that area. Speaker: A month? Arnold T. Aikens: That is correct. Speaker: And what was his salary at the time of his retirement approximately? Arnold T. Aikens: I do not know Your Honor. United did-- Speaker: You do not know what percentage this was of his salary or? Arnold T. Aikens: No I do not know, but United in view of the fact that this sum was not a very high sum and certainly not equivalent to one who would have been member of the plan for 20 or 30 years, he made a voluntary contribution which exceeds what he gets and actually the benefits that he now receives, they are approximately $850 a month and this is not the contribution that he receives of course he is not out of the pension plan it is United's contribution to him. Speaker: Well does United do that for everybody or who has just been in plan nine years? Arnold T. Aikens: No Your Honor we believe that this is unique. There has been a change in circumstances at the time that Mr. McMann joined the company and he was a pilot. It was membership and the plan was by election. Now we do not have that problem because the pilots are automatically enrolled in the plan, so that I think Mr. McMann is unique in the company in receiving this additional contribution. Speaker: Do they say they paid after this lawsuit or before it? Arnold T. Aikens: No, it was at the time of his retirement. Warren E. Burger: Just to get the arithmetic correct. The full answer to Justice Stewart's question is that he is getting $850 a month, $450 on the pension on, 400 supplemented by the voluntary contributions of United. Arnold T. Aikens: That is correct Your Honor and those figures are average figures, I do not mean to be specific about that. Speaker: Before his retirement he had been in touch with the Labor Department indicating his intention to proceed out of this tax -- Arnold T. Aikens: Yes he had. Speaker: Did – I suppose United knew about that? Arnold T. Aikens: Yes it did and it received the response of the labor department, a copy of it. In the Zinger case that Court went to a great deal of difficulty to trace the history of this Act. The legislative history and to clearly demonstrate that Congress intended to protect the pension plan or the retirement plan in 4(f)(2) and that it did create an expressed exemption allowing for involuntary retirements pursuant to that, that body of history, the Fourth Circuit has for some reason chosen to ignore, but the History briefly stated is that this was an Administration Bill and the President in submitting the bill to Congress expressly provided for an exception for those persons retiring under pension plans. Senator Javits' who was most active in the Court before the committees in advocating the plan, recognized also that the administration's plan which permits involuntary retirement under a bona fide plan meets only part of the problem he said, obviously then he recognized this is a valid part of 4(f)(2), he then went on to propose his amendment which is now the last phrase of 4(f)(2). Speaker: Just as so I got it straight. In order for us to agree with you but we have to reach the question and deal with it as to whether the statute, whether 4(f) or whatever the exemption is, covers a plan that is obligatory on the employee but optional on the employer, your plan United could have under the terms of the plan retained any employee beyond 60. Arnold T. Aikens: That is correct Your Honor. Speaker: You said that they never had-- Arnold T. Aikens: In practice it never he has but it could -- Speaker: Certainly there was a strong dissent in the Fifth Circuit on Judge Tuttle saying that the exemption was not even meant to cover a plan that was optional on the employee. Now that Fourth Circuit put that issue aside because it decided against you an another ground, but do we have to, what do we about that question, do we have to deal with it here? Assume we agreed with you otherwise -- Arnold T. Aikens: In the factual context of our case it does not have to be dealt with sense we have uniformly, United has uniformly applied -- Speaker: Well, I know but that is the argument is, the company still has the option -- that Congress only intended to permit the company to or to exempt a plan that was obligatory both ways. That was the argument in the Fifth Circuit. Arnold T. Aikens: Yes but we think that the history belies this that Congress did not speak-- Speaker: Well that maybe so but do we have to reach it, if we hold for you? And not to decide it. Arnold T. Aikens: I do not believe that the Court would have to decide it in this case Your Honor. Speaker: I thought your submission was that, while normal, and may not have dictionary meaning of mandatory, that in fact it was equivalent to mandatory under your plan and that has been historically administered and that is what Professor Cox found in the arbitration. Arnold T. Aikens: That is what Professor Cox found and that is what Fourth Circuit conceded that United is not (Inaudible) normal in this case means mandatory. Speaker: Now that means mandatory in fact. As a matter of the historic administration of this plan. Arnold T. Aikens: Yes. Speaker: And that was a unanimous decision of the arbitration panel was it not? Arnold T. Aikens: Yes it was Your Honor. Speaker: Mr. Aikens, am I correct there are not some legislation pending in the Congress today that ties right in to this problem. Arnold T. Aikens: There is and it is my understanding Your Honor, that the house has passed a bill and a bill pending in the Senate. Speaker: Does it have bearing on this case? Arnold T. Aikens: It does not have any bearing on this case. Mr. McMann of course is affected by this and any new bill will not be retroactive. Others who have been retired pursuant to involuntarily retired, pursuant to plans are also affected by the ruling of this case. Speaker: You realized, of course, that large majority of this Court is beyond the age of 60 and do you think that we should all (Inaudible) ourselves and that you go else where. Arnold T. Aikens: No your honor no I do not. Warren E. Burger: The rule of necessity would take care of that, would it not? Arnold T. Aikens: Your Honor we respectfully submit that the Fourth Circuit's decision is an error and it should be reversed and that the court should follow the rulings of Taft and Zinger Mr. Chief Justice may I reserve my time -- Speaker: Mr. Aikens, may I just ask says one other question? On the question of the amount of benefits for your adversary, stipulation Exhibit 3 does give dollar figures, $420 and $840 was his first check. Is there any thing else in the record that gives a precise dollars or we are just giving? Arnold T. Aikens: No your honor there is nothing in the record that gives us those figures. Warren E. Burger: Mr. McBride you may proceed whenever you are ready. Francis G. McBride: Mr. Chief Justice and may it please the court. This is a case of first impression. It is very first case this court has ever considered under the age discrimination and Employment Act of 1967. The kind of determination that the court will have to make has been made many times before by this court specifically this court must decide what the import of the language used by Congress is and it must also examine what Congress intended to do when it passed the legislation. The language of statute which is involved particularly Section 4(f)(2) requires that in order to come under that exception, a pension plan must be both bona fide and not a subterfuge to evade purposes of the Act. The purposes of the Act are set out in Section 2 of the Act. Clearly Congress stated them explicitly as possible they are to allow older workers to obtain and to retain employment. Warren E. Burger: Do you distinguish between the purposes of the Act and language of the Act in any way? Francis G. McBride: No I think the language of the Act is clear Section 4(f)(2) incorporates by reference basically, the provisions of Section 2 which state the purposes. The purposes, I think are essential to this court consideration of the question. Also Section 4(a) of the Act where the actual prohibitions of age discrimination are enumerated provides that there can be no discrimination in employment when sole criteria for that whatever action is the age of the person involved. Warren E. Burger: Do you accept the Fourth Circuit's characterization of the plan as being a bona fide plan? Francis G. McBride: The question down there was presented to me, and I said I agreed with them that it was bona fide in the sense that it does pay substantial benefits. I agree generally that the plan is bona fide, United's plan is bona fide, yes. However the question before the court primarily is whether or not the plan is subterfuge to evade the purpose of the Act. I think it is very important for the court to be aware that the purposes are as I stated to let older workers be employed. Speaker: Or younger workers, it is equally violation of the Act to discriminate against somebody because it was youth is it not? Francis G. McBride: The Act itself only applies between the ages of 40 and 65 your honor. Speaker: Well you discriminate against somebody because he is only 40. Francis G. McBride: That is correct because he has been 40. I do not think that was discriminating because of youth, I do not think because -- Speaker: I mean it was not on the mind of Congress but that what is the language of the statute says. Francis G. McBride: The language does in fact have that import yes. Warren E. Burger: Would it violate the Act in your view if the company refused to permit a man 41 years old to begin pilot training and apply for pilot's job? If he had no previous flying experience. Francis G. McBride: That would be a very difficult question your honor. Primarily because of the necessary extent and expense of training someone to become a pilot. But in that case if that kind of discriminatory result was allowed, it would not be allowed because the man was 41, it would be allowed because of a business reason In other words, the company would not be able to realistically finance that kind of training necessary for a person to become a pilot. So that would fit in with what the Fourth Circuit had in mind when it said a business or economic reason. Speaker: That is covered by the BFOQ language of the statutes is it not? Francis G. McBride: No that would not be BFOQ language. Speaker: It might also should then recovered by the FAA regulations and perhaps also by the agreement between the company and the AOPA. Francis G. McBride: Even if it was, the FAA regulation has no minimum entry age but if it was within the scope of the contract, for example, if a contract said we will not hire anyone over the age of 40 to become a pilot, that would be similar to the present case and whether that provision would be allowed to stand in the contract, would become a question of whether it was permissible under the Act. The Act would have clear priority over that kind of question. Speaker: Since I have already interrupted you, am I correct in my understanding that in your answer to the Chief Justice's question you made clear that in your view at least whether something is bona fide is quite a different question from whether or not it is a subterfuge, by something I mean a pension plan. Francis G. McBride: Definitely. Speaker: That there are two separate and quite distinct tests. Francis G. McBride: Yes Congress used both terms and -- Speaker: Alright. And that we have to assume that they meant different things they were not indulging in totality. And your understanding of the meaning bona fide is that it provides reasonable benefits that the plan provides reasonable benefits-- Francis G. McBride: That is the working definition that every court which has considered a question has used whether or not that is a precise-- Speaker: Or whether it is complete. Francis G. McBride: Or complete is not really been a issue. Speaker: But at least that is one criteria and if whether or not it provides -- the plan provides the reasonable benefits. Francis G. McBride: That is correct. Speaker: Retirement benefits. What is the test in your submission, what is the meaning of -- in your submission of whether or not a plan is a subterfuge? Francis G. McBride: The primary-- Speaker: It has not to do with reasonable benefits. Francis G. McBride: No, it has nothing to do with reasonable benefits. The primary test becomes question of whether or not the criteria used is the criteria which is prohibited by the Act. In other words, if age is sole reason for an action a Discriminatory Action then that becomes --. Speaker: Let us not, if you can to use polar words. If it is a sole reason for mandatory retirement under 65, is that what you mean? Francis G. McBride: Well yes, it becomes a subterfuge because the purpose of the Act and the prohibitions of the Act is against determinations based solely upon age. Speaker: Well then pension plan, that even though it provided reasonable benefits was there for bona fide would nonetheless be a subterfuge and not covered by this exception to the general provision of the Act, if it in fact provided for mandatory retirement under 65, unless there were some but other reason? Francis G. McBride: Unless there were some other reason yes. Speaker: And whether that other reason had to be some economic -- Francis G. McBride: It could be economic or business reason or it could be an outside ruling by the federal government, such as if a person is a fire fighter and the Congress decides that fire fighters should be exempt from or involuntary retirement of fire fighter should be allowed or even though -- Speaker: Is it like a policeman or something like that? Francis G. McBride: That may not be a bona fide occupational qualification, if there is this type of ruling that would allow the involuntary retirement. Speaker: Mr. McBride, I would think the dictionary definition of a subterfuge is something that says one thing and means another. It is something that purports to be okay but really is not and by your interpretation, if a contract that says in so many words, we are going to retire you at 65 or 60 and give you these pension benefits, that makes it perfectly clear and does not dissemble it at all. It is nonetheless a subterfuge. Francis G. McBride: Yes Your Honor, I think that the -- what should we say sinister action type of definition of subterfuge is not applicable in this case. Speaker: Well it has to be a subterfuge to evade the purposes of this Act. Francis G. McBride: That is true. Speaker: In order to be a subterfuge to evade the purposes of the Act it has to be a subterfuge to start out with I take it. Francis G. McBride: But I do not think that subterfuge, the term subterfuge implies any malicious intent or any deliberate going around the Act. In fact, the result may be a subterfuge although the attempt may not necessarily be that to get around the Act and also again the purposes of the Act which are important in this case. Warren E. Burger: Prior to the passage of the Act to was it in any sense a subterfuge? Francis G. McBride: I do not think, I can really answer the question because prior to the passage of the Act there was no legislative purpose that would be avoided by the subterfuge. Before the Act was passed, the plan would have been bona fide but as far as the question of whether it was a subterfuge or not, I do not believe would really have any relevance because there was nothing to evade it to. Speaker: In order for you to prevail, do you think you have to show that this plan was a subterfuge as that term is used in the Act? Francis G. McBride: No I think the-- Speaker: What other grounds could you prevail on? Francis G. McBride: Well I think that we could prevail upon the terms of the Act or terms of the pension plan itself. The pension plan states that the normal retirement date shall be the 60th birthday of the participant. The United Airlines plan which is involved here, did have a provision for superannuated employment of someone beyond that normal retirement date. The Fourth Circuit in that reached the question and it was not necessary to reach that question under the grounds for the decision of the Fourth Circuit. They took a rather broader approach to the problem and therefore did not get involved in the question of whether or not the plan itself would have been adequate presuming they had agreed with United's interpretation of the statute to involuntarily retire Mr McMann. Thurgood Marshall: Mr. McBride to what extent is collective bargaining got to do with this? Francis G. McBride: With the retirement age. Nothing. Thurgood Marshall: But it was a broader collective bargaining was not it? Francis G. McBride: The retirement age was never a part of the -- Thurgood Marshall: The retirement plan? Francis G. McBride: Well, the retirement plan, it is an unusual situation. As I understand that only portions of the pension plan have been bargained for. The original United Airlines pension plan was established in 1941. At that time the retirement date for pilots was 60. That date has maintained itself throughout all of the alterations to the plan including the most current edition. Thurgood Marshall: Its change in the plan was not negotiated with the union? Francis G. McBride: It was partially negotiated with the union. The relevant portions of the plan which we are concerned with were never a subject of collective bargaining. Speaker: Could they have been? Francis G. McBride: I believe they probably could have been but as a practical matter, I do not believe that any result would have come of that for several reasons primarily, the company has always maintained the age 60 date was necessary and the Airline Pilots Association has never agreed with that and I would think it highly unlikely that any meaningful result would have come of putting that on the bargaining table. Speaker: Would it have made any difference had it been the product of collective bargaining? Francis G. McBride: I so not think so, no, I think it would be the same situation that we have here now. Speaker: It is a statute regardless of --. Francis G. McBride: The statue regardless of the contract, I do not think there is any problem with the preexisting plan question. The legislative history made it quite clear that Congress intended the Act to apply to both existing and new plans and there are many decision primarily in Circuit courts. Thurgood Marshall: I have great difficulty in how you can say that this was meant to apply to plans previously adopted, the following language, a subterfuge to evade the purpose of this chapter. I do not see how that could apply to plan that was adopted before, unless they had a crystal ball. Francis G. McBride: Again it is a question of subterfuge to evade the purposes of the Act. The subterfuge can come into being when a plan is operated so that age is the basis for the decision. Thurgood Marshall: After the Act. Francis G. McBride: After the Act then it becomes the subterfuge to away the purposes of the Act. Speaker: That is what the Fourth Circuit in effect held. Francis G. McBride: That is what the Fourth Circuit in effect held, right. Warren E. Burger: The day before the Act became effective it was not a subterfuge you say because there was no yard stick by which to measure, let us say after the effective date of the Act. It automatically became a subterfuge. Francis G. McBride: Yes. Warren E. Burger: To evade the Act. Francis G. McBride: The purposes of the Act, yes. Warren E. Burger: Well, I thought you said there is no difference between the purposes of the Act and the Act. Francis G. McBride: Well the statute speaks in terms of the purposes the act. Warren E. Burger: Did not you indicate that the words, the purposes are far redundant and the result would be the same if it said the Act or the chapter. Francis G. McBride: Well I think the phrase 'purposes of the act' makes it much clear specially in light of the way the act has been interpreted by some Courts. Some Courts, Zinger and Taft, they have obviously considered the act rather than the purposes. I do not think there is any difference but and they said there it appears to some question about it. Speaker: Mr. McBride, may I ask you. Do I correctly understand you, few moments ago to say that you so not have to urge affirmance on the subterfuge arguments but may do so on the basis of the plan and indeed does not mandate retirement age 60. Francis G. McBride: That is correct. Speaker: Even though the Fourth Circuit expressly said that it concludes for the purposes of this decision, that the plan should be required as one mandating retirement. Now you did not cross petition but you nevertheless argue it either that your liberty to ask affirmance on the basis that the Court of Appeals was wrong in the respect. Francis G. McBride: That is correct Your Honor, yes. Speaker: Mr. McBride do you have any comment on the pending legislations of the Congress? Francis G. McBride: Yes I do Your Honor. I have several comments on the pending legislations. The pending legislations which has been approved by the House of Representatives by vote of 459:4 or 359:4 specifically, pertains to section 4(f)2. The language of -- one particular portion of the language which is being added is that it adds to Section 4(f)(2), the phrase and except the involuntary retirement of any employee shall not be required or permitted by any such seniority system or any such employee benefit plan because of the age of the employee. There has been considerable legislative history so far on these Amendments. The House report number 95-527 speaks of this particular amendment as being one to clarify the Act because of the varying judicial interpretation. Speaker: Mr. McBride what is left in the exception? If that is enacted, what is left in the exception? Francis G. McBride: Well if this was enacted, you still have the problem of whether or not there can be a discrimination not so much on involuntary retirement grounds but as we submit the purpose of the Act is now whether you can discriminate for example with regard to a Health Insurance Program because of the prohibitive cost. Speaker: Could you read that language again, if you do not mind? Francis G. McBride: Okay. Speaker: Now this is an addition to two. Francis G. McBride: This an addition to Section 4(f)(2). Speaker: Is this the only addition to two? Francis G. McBride: Yes Your Honor and except that the involuntary retirement of any employee shall not be required or permitted by any such seniority system or any such employee benefit plan because of the age of the employee. Speaker: Is the discussion over there made clear whether or not that would apply to previously negotiated plans? Which operate in (Inaudible). Francis G. McBride: I think the discussion during the original Act made that clear, Your Honor that it was intended to apply to present plans and also that this would apply to present plans as well. Speaker: There have been amendments to that, have there not, some committee exempting teachers and professors, we really do not know what shape the thing might come out -- Francis G. McBride: That is the Senate Committee, Your Honor. Speaker: And this is. Francis G. McBride: This was the Bill as it was passed by the House. Speaker: Passed by one House. By the House of Representatives? Francis G. McBride: Right. The Senate did add various and incendiary (ph) exceptions and it came out of committee, I believe last Friday. Speaker: Your client is seeking damages as well as reinstatement, is he not? Francis G. McBride: Yes he is. Speaker: So the case would not be moot? Francis G. McBride: No, it would not. Also Your Honor, there has been considerable legislative history in the House and in the Senate regarding this and they make it quite clear that the Fourth Circuit position is in line with what the original intent of Congress was. Speaker: It is in 1967? That is when the Act was passed. Francis G. McBride: I realize that. There is language both in 1967 and in 1977. When dealing with the 1977 Amendments which have been proposed, Congress has been aware of the varying interpretations of the provision by the different Circuits and they have specifically mentioned in some cases, in some instances this particular case. Senator Javit's for example, when he was introducing the Amendment in the Senate, stated that the purpose of this Amendment was to facilitate the hiring of older employees by permitting their employment without necessarily providing equal benefits under employee benefit plan. Speaker: Now you are back in 1967? Francis G. McBride: No this is in 1977. Speaker: Oh he said a similar thing back in 1967? Francis G. McBride: He said similar things in 1967 but he also added before the Supreme Court considers the arguments about what the Congress has intended by Section 4 f)(2), I think it is incumbent that the Congress made clear that this provision was never intended to permit the wholesale evasion of the ADEA's protections. Also Senator Williams on the Senate For, stated that the new bill, the 1977 Bill makes it clear that the Fourth Circuit correctly interpreted the the will of Congress. Warren E. Burger: Are Senator Javit's remarks some sort of exposed facto legislative history of the earlier Act? Francis G. McBride: Not really Your Honor, they are, to a degree they are but they are very consistent with what he said in 1967. They are more a re-affirmance than something completely new. Speaker: We have said things alright about it. Francis G. McBride: Pardon me Your Honor. Speaker: I think we have said on many occasions that we look rather scamps at post. Francis G. McBride: I realize that, I realize that Your Honor. Warren E. Burger: We will resume at 1 o'clock and you have five minutes left. You may continue Mr. McBride. Francis G. McBride: There are a few more points I would like to clarify Your Honor. First of all, I think the position of that Department has been mentioned by Mr. Aikens, of the Department of Labor, although there was an initial determination by person in a the field, it has never been the official position of the Department of Labor. In fact the department did to file an Amicus brief in the fourth Circuit and they have assisted in the preparation of my case. Speaker: But they have not filed an Amicus Brief here. Francis G. McBride: No they have not Your Honor. Speaker: Is there any significance in that? Francis G. McBride: No and their position has not changed. I believe at one time they were planning file an Amicus brief and I am certain there would be happy to if the Court were to request Solicitor General to file one. Speaker: They should file on their own. Francis G. McBride: Pardon me Your Honor. Speaker: So they frequently do it on their own and -- Francis G. McBride: I realize that the -- Speaker: I wonder whether there was some significance in the absence of such a brief. Francis G. McBride: No there is no significance Sir. Their position is the same. Warren E. Burger: I suppose you might suggest it is one of benevolent neutrality. Francis G. McBride: No I would suggest, that they are actively in our behalf, in fact to a large extent, the decision of the Fourth Circuit was based on their Amicus Brief. Speaker: Mr. McBride, I do not like to press this again but I would like to be very clear. You are arguing to us that you are entirely on affirmance on one of two grounds. Either that 4 (f) 2 is not applicable at all because this is not a mandatory retirement plan or even if 4(f) 2 is applicable, its conditions have not been satisfied by the United. Is that right? Francis G. McBride: That is correct. Speaker: On either ground. Francis G. McBride: On the either ground yes Sir Speaker: Mr. McBride did has the department ever withdrawn its earlier interpreted bulletins? Francis G. McBride: The published interpreted bulletins have never been withdrawn. Speaker: Are they contrary to your present view. Francis G. McBride: No they are not. What the interpreted bulletin does is it incorporates by reference or requirements of section 4(f)2. Speaker: Do you think the department of Labor if it was here and standing where and it representing and was standing where you are would suggest that their position in their amicus brief is not different form the interpreted bulletin? Francis G. McBride: That is correct Your Honor. Basically the position of the Department of Labor. Speaker: Did they argue -- does they have brief argue that their position has always been the same? Francis G. McBride: With respect to you the requirements with respect to there being some other outside requirement. Speaker: Yes. Francis G. McBride: As the matter of fact, during the original hearings on the 1967 although United and the Chamber of Commerce quoted Secretary of labor works. He also stated in the house hearings that the bill does recognize on the one hand, his plans specifically recognizes those plans that are worked out for rational reasons so long as they do not result in differentiation just on the basis of age itself. Where there is no justification in fact. Which is precisely a situations which we have here. The legislative history which has been presented to the court is not complete and I would urge that the court study the legislative history in its entirety. The position of the department as indicated by the remark, I just quoted by a Secretary Wirtz has always been that there must be something other than just age, and they have not changed this position. The one other factual thing which I think that should clear up. Speaker: Do you think interpreted bulletin -- well I will put it this way. Does the department agree with you on your alternate suggestions that the exemption does not apply at all if the company may itself permit a person to stay beyond the retirement age? Francis G. McBride: I am not certain of that I think -- Speaker: Let me read it the interpret bulletin. The fact that an employer may decide where in certain employers to continue working beyond the age stipulated in the formal retirement program does not in and of itself render an otherwise bona fide plan invalid. Now that is -- is that vague or is that -- Francis G. McBride: No I do not believe that this is vague -- Speaker: Well if the interpreted bulletin seems contrary to your alternate positions. Francis G. McBride: That may be I -- Speaker: Well does it – again, do you think that the department stands by its interpreted bulletin in that respect? Francis G. McBride: I really could not say. I believe that they would urge that the decision be affirmed on the alternate ground and I really cannot speak with certainly about the position of the department. I am at particular aspect of the case Your Honor. Speaker: So you think that the, they would have abandoned their interpreted bulletin? Francis G. McBride: I do not think that they necessarily would have been abandoned it, I think that they probably would take the position that it was -- Speaker: Wrong. Francis G. McBride: Not wrong, not artfully done for the first time around and that -- Speaker: Seems pretty square down there. Francis G. McBride: If they had another chance at it they would perhaps used different language. Warren E. Burger: Of course the Department of Labor had no barriers to presenting its views to this court and departments of the government frequently do. Francis G. McBride: I am aware that Your Honor I think the, they did not in fact plan do it but there was a -- I understand the time problem in the Solicitors General's office which was a reason for it not being filed. Warren E. Burger: Very well, thank you gentlemen. The case is submitted.

William H. Rehnquist: We'll hear argument first this morning in Number 97-1754, Immigration and Naturalization Service v. Juan Anibal Aguirre. Ms. Millett. Is that the correct pronunciation of your name? Patricia A. Millett: Yes. Mr. Chief Justice, and may it please the Court: In the Immigration and Nationality Act, Congress expressly invested in the Attorney General the authority to determine whether an alien who has committed a serious, nonpolitical crime should be denied withholding of deportation. Congress further made clear that once the Attorney General has serious reasons for considering that such a crime occurred, the bar on withholding is mandatory. The issue in this case is whether the Attorney General, through the Board of Immigration Appeals, had serious reasons for considering that respondent's acts of burning buses, destroying private stores, and hitting, binding, and stoning innocent civilians constituted serious nonpolitical crimes. David H. Souter: What, by the way, if you have a chance, are we supposed to do about the fact that the individual now says that isn't a correct translation; he didn't stone any individuals. What he said was, he threw stones against the side of the bus or something to stop the bus, but they didn't actually throw stones at individuals, which might be important. What should we do about that? Patricia A. Millett: First of all, we disagree it is important, but even if the Court considered that it was, the respondent has filed a motion to remand with the Board of Immigration Appeals and, I think consistent with this Court's decision in Stone v. INS, this Court can go ahead and proceed to review the judgment that's before it and allow that motion to proceed on its own track. William H. Rehnquist: Well, this tape question is a very late-in-the-day thing, is it not? Patricia A. Millett: It most certainly is. It didn't appear until the brief in opposition in this Court, and that was-- William H. Rehnquist: It wasn't presented to the Ninth Circuit at all. Patricia A. Millett: --Not at all, even though the same counsel represented Mr. Aguirre there, but that... again, the motion is pending before the Board of Immigration Appeals. We believe it should have no impact on this Court's resolution of this case, or ability to proceed and decide this case. Sandra Day O'Connor: Now, it is suggested by the respondent that somehow the board's and the Government's interpretation of the statutory standard differs in some way from that recommended pursuant to the convention and the protocol that bind other nations generally. Patricia A. Millett: Uh-huh. Sandra Day O'Connor: The language in the convention and protocol looks about the same, but they say the Handbook somehow establishes a more egregious standard. How have other countries interpreted the protocol and the convention, do we know? Patricia A. Millett: In this particular regard, on the question of balancing the risk of persecution there are a couple of other things-- Sandra Day O'Connor: Uh-huh, yes. Patricia A. Millett: --the Ninth Circuit required that haven't, as far as we know, been addressed by other countries. But on the question of balancing the risk of persecution-- Speaker: Yes. Patricia A. Millett: --there are two courts that have directly ruled on it, and they are split. The Canadian court applied the balancing test that is recommended in the Handbook, without saying that it was compelled, but choosing to apply it. The British House of Lords has held that the balancing test does not apply, so we have a one-one split. The respondent... or, I'm sorry, the United Nations High Commissioner in his amicus brief also cites a decision from the French Commissioner of Refugees in a case called Pham, P-h-a-m. That case, however, did not... first of all, has been vacated, and secondly did not address the serious nonpolitical crime exception. It addressed Article 33's particularly serious crime of sexual-- Sandra Day O'Connor: Is that question, whether there are serious reasons for considering that a particular offense qualifies as serious and nonpolitical, is that a question of fact or law, do you think? Patricia A. Millett: --Well, it has two tiers. Whether the test the Attorney General has adopted for identifying serious nonpolitical crimes could, of course, be reviewed for whether... its consistency with the statute, but because of the language that the Attorney General may determine, and because of the serious reasons for considering language, that would be an extremely deferential review. If the test is legally correct, then the application of any facts in the record in a given case would be... against that test would be reviewed for substantial evidence. William H. Rehnquist: Is the U.N. convention binding on the United States? Patricia A. Millett: The convention is not. The proto... the United States is a party to the protocol relating to the status of refugees, and that has incorporated virtually all of the provisions of the convention, including this definition of refugee, which includes... this portion of its definition of refugee, which includes a serious nonpolitical crime exception. The only thing that is not carried over is the original limitations, original European limitations on the definition of refugee. Anthony M. Kennedy: Is the Handbook incorporated in the protocol? Patricia A. Millett: No, it is not. In fact, we... nothing... nothing in the text of the protocol or the convention mentions, let alone compels, balancing the risk of persecution. Antonin Scalia: Nor in our statute. Is that protocol self-executing? Patricia A. Millett: No, it is not, and so even... I guess even if it did, if the Attorney General's reasonable interpretation was that that had not been effectuated via United States law, again that would not become-- Antonin Scalia: We need a statute that implements it. If we don't have a statute that says you take into account the degree of persecution that will be received at home, then there just isn't a statute that does that. Patricia A. Millett: --Absolutely, although again-- Ruth Bader Ginsburg: The protocol doesn't do that either, does it? It's just the Handbook that sets up this balancing test, so there's no inconsistency. In fact, our statute seems to be very close to the protocol. There isn't a significant difference between those two. Patricia A. Millett: --No, there is absolutely no, as we see, tension between the protocol or the convention and the United States law and the Attorney General's interpretation of that. The only question is whether we are inconsistent with a recommendation in a Handbook written by the United Nations High Commissioner of Refugees. William H. Rehnquist: Why is that a question at all? Patricia A. Millett: Because that's what the Ninth Circuit relied on. Speaker: Oh. Patricia A. Millett: It's not our question. [Laughter] Anthony M. Kennedy: Well-- Patricia A. Millett: We, in fact, agree and think it should not be a question. The Attorney General was, of course, entitled to give that document weight if she chooses in interpreting the statute, but is not bound by it. Anthony M. Kennedy: --Well, now, as I understand the-- --Go on. As I understand the respondent, they say, well, you can't really talk about McMullen proportionality, the seriousness of the crime in light of the political objectives, if you don't also talk about persecution, which I take it you're going to tell us is a non sequitur, or-- Patricia A. Millett: Yes, that would be our position. The test for a serious nonpolitical crime and the proportionality test that that applies are tests that focus on the character of the crime itself. Whether someone later faces a risk of persecution for protected status or protected conduct has no bearing on whether an earlier committed crime had a serious nonpolitical character. It either was or was not a serious nonpolitical crime when it was committed, and the fact that a risk of persecution materializes doesn't change that. Stephen G. Breyer: --Why not? That is to say, why... you might think... normally words in statutes have a context, and suppose a person... your idea is you're just going to list every crime in the U. S. Code and put it on two lists, it's serious or not serious. Well, I... why wouldn't you in this kind of situation, where you say a person, let's say, has a minor drug offense that you might consider serious. Well, doesn't it make a difference whether we consider it serious for the purpose of the statute, whether that's seriousness because you called it that, it's so serious that it means the person will be sent back to the same country where he'll be killed immediately, as compared with, he'll be sent back to the same country rather than a different country, where he will serve 1 day's imprisonment? I mean, I might think... you tell me... if this person's going to be killed because I have to send him back to the same country, I don't think that that previous marijuana crime is such a big deal. If you tell me, well, we're going to send him back to the same country rather than a different country, and all that will happen, he'll spend 7 hours in a cell, I'll say, well, okay, I'll give it to you. I mean, why not make that kind of all-factors considered? You're doing that with nonpolitical. Patricia A. Millett: The first thing to keep in mind is, the question in this case is whether the Attorney General is compelled by the statute or the convention to adopt that approach. Whether or not one thinks it would be a good approach to adopt, she most definitely is not, in our opinion, by the text, legislative history, drafting history of either the statute or the convention and protocol. The second thing to keep in your mind is, you mentioned the history of terms. The term nonpolitical crime does have a history. It's a term with meaning in immigration... I'm sorry, in international law and in extradition law, and the balancing that the Attorney General has used to identify whether something is political or nonpolitical draws upon that history, but it is still... both of them are describing the crime itself. The risk of persecution doesn't change the crime. The question is whether it's a serious nonpolitical crime-- Ruth Bader Ginsburg: Ms. Millet, may I clarify... ask you to clarify one thing, because I think when Justice Breyer said, it's just you list everything in the U.S. Code as serious or not serious, do I understand correctly that in defining what is a nonpolitical crime, that the Attorney General is in sync with the Handbook, that the dissonance comes up only at the tail end on the question of, do you then balance against the risk of persecution. But I thought in defining what is a nonpolitical crime it isn't simply a matter of going through the U.S. Code and saying this is serious and this is less serious. Patricia A. Millett: --No, that is correct. That is correct, and sometimes the analysis of serious and nonpolitical can overlap, but it's... as I explained, the term nonpolitical and the definition that the Attorney General has adopted is consistent with the Handbook, is consistent with the Ninth Circuit's at least prior articulation-- David H. Souter: But the Attorney General rejects the gross disproportionality test, as I understand it. Patricia A. Millett: --The Attorney General rejects the notion that things have to be tantamount to atrocious conduct. David H. Souter: Yes. Patricia A. Millett: How-- David H. Souter: Which I take it is what the Ninth Circuit was getting at on the second reason that it-- Patricia A. Millett: --Yes. That is how we interpreted that. Antonin Scalia: --Ms. Millett, do I have to give the Attorney General's interpretation deference if I think the Attorney General's interpretation may be wrong for a reason quite different from the reason that respondent here says? Specifically, I don't care what the Handbook says. I care what Congress passed and what the fair meaning of our statute is. And, frankly, when I... I find it quite incredible that we are adopting an interpretation that takes into this country people who commit any crime at all, even murder, so long as it's for a political reason, and so long as it's not disproportionate. Now, there's a totally different reading of political... non... I mean, I've never heard nonpolitical crime. It's the opposite of a political crime. And my normal understanding of a political crime is a crime whose definition... it's not the motivation of the criminal in committing a murder. It's rather, the very definition of the crime is a political crime, such as the law in Cuba under which some journalists have just gone to jail because they criticized the Government in the press, a law that prohibits criticism of the Government, perhaps a law that prohibits... even a law that prohibits treason. But when you're committing a crime that is independently criminal... murder, rape, whatever... the fact that you're doing it for a political motive, why should that make any difference as to whether we want those people in this country? We don't allow those things to be done for political motives in this country. Do we want to admit immigrants who have that philosophy? Patricia A. Millett: Well, that is a choice again for Congress and the executive branch, particularly Congress to make. Antonin Scalia: Well, all Congress said was, nonpolitical crime, and that's a perfectly reasonable interpretation of what a political crime consists of. In fact, I think it's the more normal one. It's not, you know, well, I murdered somebody, but it was proportionate. It was really sort of necessary for my political goal. We're admitting people on those bases? Patricia A. Millett: The question would be if... the way in which that would come up, and sometimes there are things that are so... how serious it is can be factored into whether or not it can even be accepted as nonpolitical. Again, the history of the term political or nonpolitical is a contextual inquiry, and the more drastic means that are employed is often a factor. On the other hand, someone who attempted to kill Hitler during World War II, or if they'd even, in fact, succeeded, would not necessarily have to be excluded from a country under this definition. And there are-- William H. Rehnquist: What about Lee Harvey Oswald, who succeeded in killing President Kennedy? Is that a political crime? Patricia A. Millett: --I don't think that would be the position of the United States, and I don't know whether it was a political motive-- William H. Rehnquist: Well, no, but I mean-- [Laughter] --backing off and looking at it-- Patricia A. Millett: --Right. Right. William H. Rehnquist: --as an act of someone... an assassin, but who disagreed with the President and wanted him out of the way. Could that be a political crime? Patricia A. Millett: Could the acts of an assassin ever be considered a political crime? I think yes, the Attorney General would have the discretion to do that under this statute. Antonin Scalia: To assassinate Queen Elizabeth, to take a current and quite likely-- [Laughter] --scenario, that, we'd have... we'd just weigh it, was it proportionate, you know. Could he have achieved his end by some lesser means, maybe assassinating somebody else? I find it extraordinary that that's what we're going to go through in deciding whether to admit people. Patricia A. Millett: Well, again, Justice Scalia, even if this Court finds it extraordinary, the question is what Congress and the executive branch have determined. This is a question of-- Antonin Scalia: No. No, it isn't. If it's extraordinary, you shouldn't interpret the statute that way. Patricia A. Millett: --If it's permitted by the plain language... it is not foreclosed. It is not foreclosed by the plain language of the statute or the plain language of the convention. In fact, we believe that that is the type of deference that the Attorney General was granted under-- David H. Souter: All right, but Ms. Millett, has the Attorney General ever, let's say, given a favorable interpretation to an allegedly political crime when the political objective was at least not an acceptable political objective to the Government of the United States? Patricia A. Millett: --I'm having a little-- David H. Souter: Have we rewarded the enemies of our side, for example, during the Cold War... when the Attorney General looks to what is, let's say, the political motivation, the political side of the equation, does the Attorney General simply count as political those political objectives which are acceptable to the Government of the United States at the time? Patricia A. Millett: --It's a larger inquiry than that, and for example, with the hypothetical about Queen Elizabeth, the Attorney General will also consider the structure of the country in which... first of all, we think it's perfectly... the Attorney General is free to consider political relations in this aspect of the test. Sandra Day O'Connor: So that somebody who tries to assassinate Saddam Hussein, with whom we're having a current disagreement, and who fails, and then wants to come here and get refugee status, we would take the position, the Attorney General would take the position possibly that that's... that that person is admissible, because we're having a disagreement with the regime? Patricia A. Millett: I hesitate to identify any particular leader or country or anything in a way that would suggest we would open the doors for killing or not, and in fact often an assassination-- Sandra Day O'Connor: Well, I just want to know if that's possible-- Patricia A. Millett: --But whether-- Sandra Day O'Connor: --under your view. Patricia A. Millett: --I mean, actually, historically in the late 1800s and early 1900s, the political offense exception to extradition often had in mind the lone assassin who would go and shoot a head of State, but the-- Sandra Day O'Connor: So-- Patricia A. Millett: --The Attorney General would not-- Sandra Day O'Connor: --So the answer is yes, that person would be admissible, given refugee status, possibly? Patricia A. Millett: --The... given... the question is withholding of deportation, not refugee status. Possibly, yes, but what would the Attorney General consider-- Antonin Scalia: I mean, you like Kennedy, you don't like Hitler. It's a question of where Saddam falls in... you know, in that-- [Laughter] Patricia A. Millett: --What's more important... what is important-- Antonin Scalia: --on that graph. Patricia A. Millett: --In the... what is important for the Attorney General to consider and has considered, in fact in the Doherty case that came before this Court a few years ago, is whether there is a... how there's... the means chosen relates to the ability to express and obtain... express political views and obtain political change in a given country. In the United Kingdom, which was at issue in Doherty, the Attorney General concluded that it was a critical or an important factor that there are peaceful means for changing Government and expressing views in that country. There may be countries and there may be times in this world when there will be a country and there is no way of safely protesting, expressing your view, or changing the Government, except through violence. Now, that does not mean that all violence will be proper, or will be acceptable. Anthony M. Kennedy: I was going to suggest that this line of inquiry takes us somewhat far afield from the issues in this case, but maybe it doesn't. Must we confront in this case the issue whether or not the political motivation of the crime bears on its political character, as opposed to, on the other hand, defining a category of crimes, speech, protest, that are political? Must we do that in this case? Patricia A. Millett: I don't think there's any question that political motive is one factor, but it is not the exclusive or driving factor. The question is whether it's a serious nonpolitical crime, not a serious nonpolitical criminal, and so the inquiry-- John Paul Stevens: But it seems to me that as soon as you agree to that, and I... certainly that's the Attorney General's position, the question is not how political it was, but whether it was nonpolitical, and as soon as you've got any political ingredient in the incident involved, it cannot be described as totally nonpolitical. Patricia A. Millett: --That is not something we agree with at all, Justice Stevens. The term nonpolitical crime, as interpreted by the Attorney General, is a term with a history, and we're focusing on the crime, not the criminal. And the history in international law, and in particular in extradition law, is a contextual inquiry. It's quite clear that countries... in fact, the French test is an objective test that doesn't look at motivation at all. John Paul Stevens: Are you telling me that every case, every crime involving the burning of a couple of buses would always be nonpolitical? Patricia A. Millett: No, but there's not a bright line of yes it would be, or no it would not be for political... but what is clear is that the fact that they have a political motivation alone is not going to make that a political crime, any more than blowing up a Federal day care center in Oklahoma City is going to be considered political. John Paul Stevens: Let me be sure I understand your position. The motivation, is it the motivation required to satisfy a statutory element of what the crime... how the crime is defined, or is it the motivation of the particular person who seeks withholding or deportation? Patricia A. Millett: Motivation is one factor in deciding what that... if what the person did qualifies as a nonpolitical crime. It is only one factor. John Paul Stevens: But it's the motivation of the individual, not necessarily the term motive as used in the statutory definition of the crime, is that right? Patricia A. Millett: Yes. Oh, it's... for mens rea, you mean, or-- John Paul Stevens: Well, whatever the... whatever the term, mens rea, or intent, or malice, whatever. It's not that term that you're talking about. You're talking about the subjective intent of the defendant in the particular case. Patricia A. Millett: --The subjective political motive is... yes-- John Paul Stevens: Okay. Patricia A. Millett: --is one factor, although again, in this contextual inquiry on the nature, of whether something is a political or nonpolitical crime, we look not only, again, at the motivation, but at the nature of the crime, and one factor that has been critically important in that analysis historically, and is now for the Attorney General, is whether civilians have been the target. And a political motivation that takes... that vents its political anger on innocent civilians, as occurred here, is... carries a heavy presumption in international law and in the eyes of the Attorney General that it is non-- Ruth Bader Ginsburg: Ms. Millett-- --But I-- --let me go back to Justice Kennedy's question, because I am frankly getting lost. I thought that it was the position of both the Attorney General and even the Ninth Circuit that we are dealing with a nonpolitical crime, and that the only question is, given that nonpolitical status of the crime, for whatever reason... I think Justice Scalia has suggested maybe it was the wrong reason for typing it a nonpolitical, but anyway, I thought that the Attorney General's position and the Ninth Circuit was, this falls in that category, but you still have to weigh the persecution. I thought that's what this case was about. Patricia A. Millett: --Well, there were a couple of other... it's not absolutely clear to me where the other two factors of the Ninth Circuit mentioned the atrociousness and the necessity and success, where they come into this calculus. But certainly on a question of balancing the risk of persecution, it's only been argued about deciding whether or not it's serious. And again, our position is not only that it is not compelled in any means by the statutory language, indeed it's a strained one, but also to keep in mind that adopting such a balancing test would result in a complicated matrix of withholding judgments under which you're going to be having varying degrees of seriousness of the crime weighed against varying gradations of actual threats to life and liberty, and the nature of those judgments reviewed by courts all over the country. And the Attorney General has determined that not... because it's not compelled by the language, she elects not to impose that interpretive and administrative thicket on the withholding provision. I would like to-- Antonin Scalia: But you're already willing to make the, it seems to me, more difficult determination of how necessary it was for the political objective. I mean, that requires a knowledge of the political situation in the country and so forth and so on. That seems to me even harder than these other factors. Patricia A. Millett: --And so the Attorney General is here opposing the adoption of a necessity test. David H. Souter: Is it right-- --May I ask you-- --No, please go ahead. May I ask you this question about the BIA's application of what it at least understood was the Attorney General's test? The BIA stated in a rather conclusory way that here the, let's say the political character of the crime was outweighed by its seriousness, which it described as being great enough to come to the attention of the warring or the contending parties in Guatemala, which sounds to me as though it's saying, whenever the crime, given its political motivation, is effective in getting the attention of the political contenders, they've gone too far, that the criminality by definition at that point outweighs whatever political character they might have... it might have. So it sounds as though, to put it crudely, nothing fails like success, seems to be the reasoning of the BIA here. Would it be appropriate, even if we do not accept the Ninth Circuit's opinion, to send it back to the circuit, presumably to be sent back to the BIA to explain its reasons for concluding, as it did here, a little better than that conclusory reasoning that I've just characterized as if you're successful enough you necessarily fail under the statute? Would that be appropriate? Patricia A. Millett: No, it would not, for two reasons. First of all, it's the Ninth Circuit that wants to look at necessity and success, not the board. The board's reference to the fact-- David H. Souter: Well, I thought... did I mischaracterize the board? I didn't mean to. Patricia A. Millett: --Well, I... the board's reference... the board's reference to the level, attracting the attention of the Governments was not to say you're disqualified because of that, but to use that to describe how much violence was involved against civilians here. There was sufficient violence against civilians that it would attract this atten... this level of attention, so that is again evidence this was not, as the Ninth Circuit characterized, minimal or harmless violence-- David H. Souter: So you're saying it was emphasizing the violence rather than the merely criminal character of what was being done. Patricia A. Millett: --The level of violence targeted at civilians is what was done. I would like to reserve the-- Anthony M. Kennedy: May I just ask one... I know that you want to reserve some time for rebuttal. Are you saying that the crime is grossly out of proportional to the political objectives? Patricia A. Millett: --Violence against civilians, in this case, yes, the board-- John Paul Stevens: And that's the test? Patricia A. Millett: --I'm sorry. Is... I'm sorry. Anthony M. Kennedy: And that's the test? Patricia A. Millett: The test is either proportion... a proportionality between the objective and the means used, or... or atrociousness. I would like to reserve the balance of my time. William H. Rehnquist: Thank you, Ms. Millett. Ms. Wettstein, we'll hear from you. Nadine K. Wettstein: Mr. Chief Justice, and may it please the Court: I'd like to pick up on the point we just left off with Ms. Millett, that in answer to Justice Kennedy's question the Court does not have to grapple or decide on the difficult, what is a political crime, what is not a political crime. The issue really facing the Court is whether or not the Board of Immigration Appeals properly reversed the decision of the immigration judge. William H. Rehnquist: Well, the issue before us is whether the court of appeals correctly decided this case, isn't it, and there are... the question presented is whether the court of appeals erred in reversing the decision of the BIA. Maybe you see it as the same thing, but it isn't quite the same. Nadine K. Wettstein: Well, Your Honor-- William H. Rehnquist: If the Ninth Circuit was wrong, even if the BIA was wrong, that does not mean that we would simply say, go back to the BIA. Nadine K. Wettstein: --Your Honor, the BIA... rather, the court of appeals gave three reasons for reversing the BIA, and two of those three reasons were that the board did not correctly apply its own test set out in the Matter of McMullen, which is a BIA decision setting forth the standards for determining serious nonpolitical crime. And to just clarify with Justice Ginsburg for a moment, nobody says that this is a political crime. Everyone said that this was a... rather, no one said it's a nonpolitical crime. Everyone said it's a political crime. The board... the immigration judge held that it was a political crime. The Board of Immigration Appeals did not say that it was on balance. It said on balance that it was too serious to be political, but it didn't say that the motives were unpolitical, or nonpolitical. In other words, the board misapplied its own... well, the board purported to apply the McMullen test, and it did not apply the five factors of the McMullen test, it only concluded as to one factor. Ruth Bader Ginsburg: I really find that difficult to follow, because the McMullen test was a test that was said on the way to saying that the applicant there did not qualify for any dispensation. So to take a test that picks somebody who doesn't qualify, and then you say, but now somebody else who wasn't a terrorist, isn't a terrorist and therefore didn't satisfy those factors. I just don't think that you can get very far from taking a case that says, this person has these five characteristics and he's out, then say that means well, when you don't have those five characteristics you're in. I really don't think that McMullen can be worked that way in reverse. Nadine K. Wettstein: Your Honor, McMullen mirrors and incorporates the Handbook standard, paragraph 152 of the Handbook, which sets out five tests, and when you apply those tests in this case-- Ruth Bader Ginsburg: I thought the board has always said, up until the other case, that it isn't taking any position on this balancing. It notes that that's the position that the Handbook takes, but as far as I know, there has never been a time when the board said, we embrace that test. Nadine K. Wettstein: --Well, Your Honor, there are two different kinds of balancing here. Perhaps if we separate them, that might be clearer. There's a balancing, the so-called balancing in paragraph 152 of the Handbook, if we may call it that, and that really is... provides five tests for the political-nonpolitical question. And then there's the separate question in paragraph 156 of the Handbook, which is whether or not you consider the risk of persecution once you have already determined that the crime is-- William H. Rehnquist: Isn't it agreed that the Attorney General and the United States are not bound by the Handbook? Nadine K. Wettstein: --Yes, Your Honor, that's certainly agreed, but the board has adopted the paragraph 152 in the matter of McMullen, so it wouldn't necessarily be bound otherwise, but-- Antonin Scalia: That balancing is a balancing of what? Nadine K. Wettstein: --It's a balancing of the political-nonpolitical question, Your Honor. It includes the motivation of the actor, whether or not the crime was out of proportion, whether or not there's a causal link between the acts and the goals, whether or not the crime was atrocious. So in answer to some of the Court's questions earlier-- Anthony M. Kennedy: Do you mean, it's out of proportion to the political objections-- Nadine K. Wettstein: --That's right. Anthony M. Kennedy: --objectives, or out of proportion to the common law character of the crime? Nadine K. Wettstein: Whether the act is out of proportion to the goals. The question in 15... in the 152 Handbook is whether or not this is a political crime, so if it's out of proportion, I think that was some of what... an answer to some of your questions earlier about killing someone that, you may have a valid political goal, but if you overstep your bounds, if you did too much to meet that goal, then the crime loses its political character. It becomes a nonpolitical crime. Stephen G. Breyer: Is there in the Handbook or, more particularly, are there in previous board opinions... think of previous board opinions. Is there anything in those opinions that either says directly, or says by incorporating the Handbook, that in deciding whether a particular crime is political or not political, one will look to see... and these are the... whether or not the nonpolitical part is a) disproportionate, b) grossly disproportionate, or c) some other set of words. What in the previous board's opinion either says directly, or through incorporating the Handbook, whether that standard should be proportionate, grossly disproportionate, or some other set of words. And, if so, what does it say? Nadine K. Wettstein: Well, McMullen, Your Honor, is the chief board decision about this. This has not... this issue has not come up very often in the board. There are some early cases in the early eighties with Marielito Cubans. This issue did not really come up with those, in those cases. There have been... this issue has come up in the extradition context, and there are some district court cases in a case called Doherty and also in McMullen, where extradition was refused because they were political crimes, and-- William H. Rehnquist: Why isn't the test not whether the board has followed an earlier precedent of its own, but whether the board's action conforms to the statute? Why does the Ninth Circuit say the board is wrong for not following McMullen if, in fact, the board's decision is consistent with the statute? McMullen isn't part of the statute. Nadine K. Wettstein: --No, Your Honor, but McMullen is the board's own decision deciding what the statute means, and-- Sandra Day O'Connor: Well, to whom do we owe deference here, to the Attorney General, or to board precedent, or what? Nadine K. Wettstein: --Well, Your Honor, to return to the Chief Justice's question earlier, the question is, was the court of appeals correct. And the court of appeals said, here are the tests that you have laid out, and here is circuit law, and here is how these tests are supposed to be applied, and you did not correctly apply them in this case. Sandra Day O'Connor: Well, is there any room for interpretation of the statute here, and if so, do we look to the Attorney General's interpretation and give it deference, or what do we do? Nadine K. Wettstein: Well, you certainly can do that, Your Honor. The statute itself only says, serious nonpolitical crimes. So the Court could say you don't like the McMullen test, and you think some other test should apply. But, of course, no one was able to apply that new test in this case, so then a remand would be appropriate if you-- William H. Rehnquist: The board is a creature of the Attorney General, is it not? Nadine K. Wettstein: --That's correct. William H. Rehnquist: I mean, she can overrule anything it does. Nadine K. Wettstein: Right, but she has not done that here. The Attorney General, neither on the 156 political crime balancing nor on the risk of persecution balancing, the Attorney General has not issued any precedent decisions on either of these questions. Her decision is limited to McMullen, and in the McMullen decision the risk of persecution balancing did not come up. Stephen G. Breyer: Well, doesn't it apply here... to go back to the Chief Justice's question, is there some reason that the most basic rule of administrative law wouldn't apply, namely, an agency cannot change its decision without focusing on it? You have to follow your own rules. An agency has to follow its own rules. If that really hornbook rule applies, then I would have thought, since there's certainly nothing in this one paragraph-- Nadine K. Wettstein: Right. Stephen G. Breyer: --of the BIA's decision that purports to change anything, I would have thought the question would be whether it's consistent with its prior rules. Of course it can change those rules, if it wants, but it hasn't. Nadine K. Wettstein: That's correct. Stephen G. Breyer: And that's why I asked you, what is the prior rule. Is the prior rule adopt the Handbook? Is the prior rule the word grossly disproportionate, or is the prior rule something else, because whatever that prior rule is, I guess they should have applied it here in the one paragraph, so what is it? Nadine K. Wettstein: Well, yes, Your Honor, I think the Government would agree that the prior rule is Matter of McMullen, and there has been no other decision by the Attorney General. William H. Rehnquist: Well, are... do you agree with Justice Breyer that an agency could not come out differently in a particular case from the way it had before without some sort of an elaborate procedure? Nadine K. Wettstein: Well, Your Honor, since McMullen is... was the precedent decision here, I think if the board-- William H. Rehnquist: Well, supposing this were just the Attorney General, you know, not a BIA or something like that, the Attorney General under the... and last year she says, well, I think McMullen is right, then this year she says, well, no, I'm not... I'm going to back away from McMullen some. Nadine K. Wettstein: --She certainly could do that. William H. Rehnquist: Is there some administrative law rule that says she can't do that? Nadine K. Wettstein: Well, Your Honor, she has, in fact, done that in a case where-- Stephen G. Breyer: Aren't you going to answer yes to that, that an agency does have to focus on it? Nadine K. Wettstein: --Well, the Attorney General, Your Honor, is... has authority over the Board of Immigration Appeals. As you've noted, the board is a creature of the Attorney General, so at least under the statute she can overrule a decision the Board of Immigration Appeals has made. Antonin Scalia: Without focusing on it, even. Without focusing on it. That's what Justice Breyer-- Nadine K. Wettstein: Without focusing on it. Antonin Scalia: --Does Arizona Grocery apply-- --Yes. Justice Breyer wants you to adopt the position that an agency cannot alter its course from a prior adjudication without focusing specifically on that adjudication. Nadine K. Wettstein: Well-- Antonin Scalia: Now, if you say that you agree with Justice Breyer, I'm going to ask you what case you have in mind that says-- --Arizona Grocery. You say Arizona Grocery is the hornbook-- [Laughter] Nadine K. Wettstein: --Arizona Grocery. [Laughter] Arizona Grocery. Stephen G. Breyer: It's, an agency has to follow its own rules. Nadine K. Wettstein: Well, we don't even have to reach that here, of course. Antonin Scalia: The agency does have to follow its own rules-- --Right. Nadine K. Wettstein: Right. Antonin Scalia: --in the sense of regulations. Arizona Grocery had no regulations. Nadine K. Wettstein: Well, I don't think we even have to reach that here, because the board did not purport to change its policy. Sandra Day O'Connor: Well, I thought here the board had taken the position in McMullen and in this case that the question of whether a crime is a political offense is primarily one of fact. I mean, that is primarily a fact issue, and the board here determined as a matter of fact that it was one that followed the language of the statute. Nadine K. Wettstein: Uh-huh, that it was... the criminal nature outweighed the political nature. Sandra Day O'Connor: Right. Nadine K. Wettstein: But Your Honor, that's all they said. They just simply announced it, and they violated another cardinal principle of administrative law that the agency is supposed to show that it reasoned and not merely reacted, and here the agency just simply concluded, so it isn't as if they overturned McMullen, or... they purported to apply McMullen, but they did not adequately apply... they did not-- Sandra Day O'Connor: Well, have we applied some special rule in the area of fact determination that says they have to explain it, or can they just determine the facts, and do we owe some deference to that factual determination? Nadine K. Wettstein: --Well, Your Honor, in this case, certainly if they had properly applied the tests they would have reached a separate... a different result. They simply concluded that the political element outweighed the criminal element, but if they had considered whether Mr. Aguirre had political motivation, whether there was a link between his acts and the goals, they would have reached a separate decision. So yes, I think the facts... if it were... was just a fact determination, if they had properly applied their tests, they would have reached a different determination. David H. Souter: Well, advert if you will for a minute to what the Ninth Circuit said. You... in the first place, I guess the third reason for which the Ninth Circuit thought there had been error was the failure to consider the seriousness of the persecution. And I think you mentioned earlier that McMullen didn't involve that, so that's an open question so far as McMullen goes. Nadine K. Wettstein: That's right. David H. Souter: And quite obviously the board did not in this case think that whatever the relevance of that factor might be, if relevant at all, would have been in favor of your client. Go to the second... I think it was the second reason that the Ninth Circuit gave, and that was that the board had failed to consider the possibility of a gross disproportionality, or the significance of gross disproportionality between the political and the common law character. In McMullen, did the board adopt a gross disproportionality? Nadine K. Wettstein: Yes, it did, Your Honor. David H. Souter: Did they use that term? Nadine K. Wettstein: That's right. David H. Souter: They used that term? Nadine K. Wettstein: It applied the gross, and it also applied the atrociousness test. So it applied both of those tests and found that McMullen's actions, contrary to Mr. Aguirre's actions, were in fact grossly disproportionate and were atrocious, and-- Antonin Scalia: Did they say that that was a condition, that that condition always had to exist in order for the crime to be nonpolitical? Nadine K. Wettstein: --No, Your Honor, they didn't say it was a condition, but it does... those were the tests that they applied, and that again mirrors-- David H. Souter: They considered it a relevant factor, is that... would that be a fair way to-- Nadine K. Wettstein: --I'm sorry, Your Honor. David H. Souter: --In McMullen did they say, look, it's just one of the things that ought to be considered, is there gross disproportionality or isn't there? Nadine K. Wettstein: Yes. David H. Souter: Without saying that if you satisfy that test a particular result necessarily follows. Nadine K. Wettstein: That's right. David H. Souter: Okay. Nadine K. Wettstein: They did not say, this is an absolute condition, but they said, here is what we consider, and what they consider mirrors the Handbook-- Antonin Scalia: But they found it nonpolitical here even without finding it to be atrocious. Why should they then move on to consider the atrociousness factor? Having found that the other factors have already rendered it nonpolitical, if the atrociousness factor is not essential, as you say it isn't, then what's the harm that's been done? They looked at the other factors and they said, I look at these other... it's nonpolitical. Nadine K. Wettstein: --Well, Your Honor-- Antonin Scalia: I don't even have to consider whether it's atrocious. Maybe it is, maybe it isn't. Who cares? Nadine K. Wettstein: --Uh-huh. Antonin Scalia: It's nonpolitical because of these other reasons. Nadine K. Wettstein: Your Honor, I don't want to mischaracterize what I said. It isn't that the board in McMullen said it isn't a necessary factor. Those are the factors they considered. They didn't say which ones of those are necessary and which ones are not-- Antonin Scalia: Well, then-- Nadine K. Wettstein: --so it may be that's a necessary factor. Antonin Scalia: --But then it seems to me the agency could have done just exactly what I've said, and certainly we give the agency the benefit of the doubt. What... I mean, I assume we apply a substantial evidence test on all those factual matters, right, so there's some evidence that could support the agency's determination, is that right? Although I'm not sure the Ninth Circuit did that. It seems to me they reviewed all the factual determinations de novo. Nadine K. Wettstein: Well, Your Honor, it isn't so much a factual determination here as a procedural determination. The Ninth Circuit did not reach its own substantive conclusion. It simply remanded to the board for it to apply its test, so it's really more procedural errors. Ruth Bader Ginsburg: I... let's concentrate on what the BIA did, because it seems to me that in characterizing what went on here, it did even what the Handbook says, and it says, in determining whether this is political or nonpolitical, its closest to the political camp when you're acting against the Government or Government personnel, much more iffy if your target, the person you're actually hitting on, is a private individual, or a private company, and then weakest of all when you're hitting on private individuals and you're trying to produce general chaos. Now, here the people who were hurt, even if just temporarily, because they were lassoed and hit... we'll leave out the stones... were private individuals. The shopkeepers whose merchandize was trashed were private individuals. So it seems to me that that falls in a category where to call it political is highly questionable even on the... all the U.N. standards. Nadine K. Wettstein: Well, Your Honor, the statute does not say, and the Government seems to be trying to read into the statute, the word civilians, or noncivilians. The statute doesn't exempt political actions taken that happen to affect civilians. Ruth Bader Ginsburg: Do you agree with the statement that's made in that U.N. brief that the political link is strongest when the target of the activity is Government personnel and property, or is that wrong? Nadine K. Wettstein: I would agree with that, Your Honor, but that does not mean that actions that by necessity are diffused, and not as they were in Guatemala... it wasn't as if you had an armed insurrection against-- Ruth Bader Ginsburg: But we're talking about what the applicant's acts were. And the next thing I read from the U.N. brief is, the link is weakest when the politically motivated act... nobody disputes that these acts were politically motivated... when the politically motivated act is principally directed against private interests. Nadine K. Wettstein: --Mm-hmm. Ruth Bader Ginsburg: And the... whatever... the bus was privately owned, was it not? Nadine K. Wettstein: Yes, Your Honor, but as in one of the other amicus briefs, the buses were not just simply privately owned. The Government had enormous involvement in the bus-- Ruth Bader Ginsburg: The individuals who were on the bus were just ordinary individuals. They weren't-- Nadine K. Wettstein: --That's true, Your Honor, but of course-- Ruth Bader Ginsburg: --Government servants. Nadine K. Wettstein: --the goal here was to prevent harm to the passengers, not to hurt the passengers. The passengers were not targeted. Ruth Bader Ginsburg: So that's why they burned them? Nadine K. Wettstein: I'm sorry? William H. Rehnquist: That's why they burned them, the buses? Nadine K. Wettstein: Well, no, the buses... the people were moved off the buses before the buses were moved, Your Honor. That was the goal of moving the passengers, so they would not be harmed. The goal was to prevent greater harm to the passengers. The buses were burned as a protest of the 100-percent bus fare increases, which the Government approved. The Government in Guatemala approves the bus fare increases. It regulates the bus routes, it regulates the-- Ruth Bader Ginsburg: What about the shopkeepers whose merchandise was just trashed? Did the Government... has no... you describe the bus transportation that's in close with the Government, but these private shopkeepers who had their merchandise trashed, for what reason? Nadine K. Wettstein: --Well, Your Honor, obviously in this country in this day and age we don't like these acts. These acts are offensive to us, but that's not really the test. The test is, under the conditions that Mr. Aguirre found himself in Guatemala, was this out of proportion to his political goals? Stephen G. Breyer: Suppose I agreed with you, purely for the sake of argument, on three points... two anyway. Suppose I disagree... suppose I thought the law prior to this case in the board is really murky. There isn't a clear rule. Assume that with me. I'm not saying whether that's so, so assuming. Assume, second, that this administrative law judge really went into this in the greatest depth. And after really going into it he says, you know, on balance this is a political crime. There are some things for, some against, but I think it is basically. Then he gets reversed by the appellate, the BIA, and they do it with one sentence, just saying, well, we think it outweighs, nobody focusing on the right test, nobody doing anything. That's disturbing to me, if those assumptions are true. What principle of law would justify my sending the case back for further work by the board? Nadine K. Wettstein: Your Honor, the principle that you mentioned earlier, which is-- Stephen G. Breyer: No. I've assumed that out of it, because I've said that the previous... I'm assuming... I'm going to read all that stuff, but I'm now assuming against you that the previous state of the art in the board is all murky. They don't have a clear rule, and there's nothing that says you have to follow a rule that isn't there, so if it's murky, you see... let's assume that's all murky. And now let's also assume, which I think is true, that the ALJ here really went into this factually, and then what I think is also true is, he gets reversed by the board with a simple sentence which doesn't analyze anything, which doesn't purport to say what's the right test, it's nothing. It's just somebody saying, oh, you're wrong. Nadine K. Wettstein: --Uh-huh. Stephen G. Breyer: Okay. Now, if all that's true, what principle of law will justify your victory, which is victory in the sense of getting it sent back? Nadine K. Wettstein: Right. Well, Your Honor, the board itself has said on numerous occasions that the immigration judge's decision is itself entitled to deference, because the immigration judge is the one who observes the witness, and that's certainly what happened here, and heard the testimony, including the mistakes in the testimony. Antonin Scalia: I didn't understand that this was your appeal, that what you were complaining about here is the procedural failure of the board to have an adequate opinion explaining its overruling of the administrative law judge. Is that in your... I don't recall reading that portion of your brief. Nadine K. Wettstein: Yes, it is, Your Honor, because after all the court of appeals gave three reasons for reversing the board. And two of those reasons, the first two of those reasons were the failure to apply its previous precedent and the Ninth Circuit precedent. The third reason was the persecution balancing, and that's what's the balance of the Government's brief and, of course, the balance-- Antonin Scalia: Was any... please, let me... was any of the reasons the failure of the board to explain itself in adequate detail? Nadine K. Wettstein: --Yes, Your Honor, it certainly was. If you'd like me to point to that section of the brief-- Antonin Scalia: Yes, I'd... I'd-- Nadine K. Wettstein: --Okay. Antonin Scalia: --I mean, I know they said the board was wrong, but I don't think that they... I don't recall just a procedural objection. Even if the board was right, they didn't have an adequate opinion, which is-- Nadine K. Wettstein: Beginning on page 29 of our brief-- Speaker: --Of the-- Nadine K. Wettstein: --Your Honor, there's a correct standard for-- Antonin Scalia: --29 of what? Nadine K. Wettstein: --Of... sorry, of our brief. Antonin Scalia: Yes. Nadine K. Wettstein: Of the respondent's brief, and-- Ruth Bader Ginsburg: Was Justice Scalia asking about your brief, or about the Ninth Circuit? Nadine K. Wettstein: --Well, I thought he was asking about-- Antonin Scalia: Well, both. I-- Nadine K. Wettstein: --The issue was whether the case concerned... in other words... we're arguing that the court of appeals did not... that the board's failure to apply properly the... it's own test was-- Antonin Scalia: --No, no. That is different. That isn't the point. Justice Breyer was making a purely procedural... and you know, I like procedure. I used to teach administrative procedure. [Laughter] And he was making a purely procedural point, that even if the board was right, it didn't explain itself. And I don't recall that being in this case, either at the Ninth Circuit level or in your submissions to the Court. Now, if it's there I-- Nadine K. Wettstein: --I think it certainly was in the court of appeals decision too, Your Honor. If we look at-- William H. Rehnquist: --If you can't find it, maybe you can just file it with-- Nadine K. Wettstein: --No, I have it here. William H. Rehnquist: --Do you have it there? Nadine K. Wettstein: Yes. It's... this is in the petition for certiorari, page 5a, 4a and 5a. The court said-- William H. Rehnquist: Whereabouts on the page are you going to reading from? Nadine K. Wettstein: --Let's see, 4a on the second full paragraph. First, the board looked only at the offenses of Aguirre, et cetera. Under the protocol, the board should have first determined the nature and purpose of Aguirre's acts, that is, whether they were committed out of genuine political motives... this is in the McMullen-- Antonin Scalia: That's saying that they didn't apply the proper tests, which I understand that to be in the case. You're saying they didn't apply the rule that the board had before it. But I'm not talking about whether they didn't apply the proper rule. I'm just talking about the fact that they didn't explain themselves. It was simply unexplained, and I don't recall that being in the case. Nadine K. Wettstein: --Well, I think that's putting it generously, Your Honor. If you say that the board did not apply the proper rule, that's actually what the court accused them of having done, and that's what we accuse them of having done, too, but I think the question here is, if they applied the proper rule but didn't explain themselves correctly. William H. Rehnquist: Well, but that's in... you say the question here is if they didn't explain themselves, but I simply don't see that in the part of the Ninth Circuit opinion you just quoted, that they are... that the Ninth Circuit is saying that, that... they're saying several reasons why the board was wrong, but as I read it, one of them was not that it didn't fully... that it didn't explain itself in its opinion reversing the immigration judge. Nadine K. Wettstein: Well, I think, Your Honor, because the Ninth Circuit assumed that there were tests in place. Now, Justice Breyer's question was that, let's assume there are no tests in place, but the court had a test to work with, so it was not dealing with the situation you suggested, which is where there's no test. And then you say, well, you just didn't explain yourself correctly, but in fact this is worse-- William H. Rehnquist: But they're still reversing the immigration judge, and I understood part of Justice Breyer's question to be, you know, was the board wrong for reversing the immigration judge without giving any explanation for doing it, and I don't see that as being in the case. Do you think it is? Nadine K. Wettstein: --Well-- William H. Rehnquist: You can answer that yes or no. Nadine K. Wettstein: --No, Your Honor, because the court had more to work with. The court had the test that the board did not apply, that Justice Breyer wrote out of our hypothetical. So therefore the court didn't have to say, there's no test here but you just didn't explain yourself, because the court had something more concrete to use, which was, here's this test, you have adopted the test, you didn't apply the test, go back and do it. That's really what the court said. Ruth Bader Ginsburg: There's one issue of at least, it seems to me clear, and I think we have to decide it one way or another, whatever else we decide. The Ninth Circuit said, the board erred as a matter of law in failing to consider the persecution that the applicant might suffer if he returned to Guatemala. We have, as was noted, a square conflict. The House of Lords goes one way on that, a lower court in Canada goes the other way on that. We are being asked to decide that question of law. The House of Lords decided as crisply as it could the crime either is or is not political when committed. Its character cannot depend on consequences the offender may... actually would suffer if he returned. Mustn't we decide at least that question, either the Canada court is right, or the House of Lords is right? You said we don't have to-- Nadine K. Wettstein: No, Your Honor. In fact, the Attorney General has not determined that question, so it may be appropriate to remand to the Attorney General to determine that question in the first instance, whether, in fact, the risk of persecution needs to be considered when you're applying this exclusion ground, so this Court certainly does not have to reach that question. Ruth Bader Ginsburg: --Well, I'll ask for clarification whether indeed it's true that the Attorney General has not resolved that issue. Nadine K. Wettstein: Right. The only precedential decision that the Government cites for that position is Matter of Rodriguez-Coto, Your Honor, which is a 1985 decision, has never been cited again for that principle, and in fact-- Ruth Bader Ginsburg: It's never been rejected, and it's a flat-out statement, right in the thing, we reject the balancing test. Nadine K. Wettstein: --Well, Your Honor, the case did not... rejected the balancing test for two different exclusion grounds, and it did not... the case itself did not deal with this exclusion ground, and it has never come up subsequently. And the Attorney... so there has never been an opportunity, in fact, the board here in this case didn't decide it, either, so there's never been an opportunity for the Attorney General to make a decision. Now, the Attorney General could have drafted regulations adopting one position or another, but that has not happened, so there actually is no precedent. Ruth Bader Ginsburg: Well, you point to the ambiguity in a statement that we reject any interpretation of the phrase, particularly serious crime, serious nonpolitical crime, which would vary with the nature of the... of evidence of persecution. Nadine K. Wettstein: Right. No, Your Honor, I'm not saying the language itself they use there is ambiguous. I'm simply saying that the board... that was... this was not the issue in that case, and so it's dictum for that reason. It's also dictum for the other reason that the board had three other reasons for its decision in that case before it got to this. That case dealt with-- Ruth Bader Ginsburg: Well, am I wrong in getting the picture that the board has twice said, it's an open question with us? One said, in dicta, it's closed, we're rejecting it. Nadine K. Wettstein: --That's correct, Your Honor, and I think the board would say it was not bound by Rodriguez-Coto if it wanted to reach the opposite decision. Thank you. William H. Rehnquist: Thank you, Ms. Wettstein. Ms. Millett, you have 4 minutes remaining. Is it true that the Government has no position on the balancing test, the third ground of the Ninth Circuit's decision? Patricia A. Millett: Absolutely not. The position was taken in Rodriguez-Coto, it needed to be taken there because he had committed crimes in Cuba and in the United States; those had to be addressed and, if nothing else, the Attorney General's position is clearly reflected in our brief in this case. Now, the reason it was not mentioned specifically in the board's decision is... I would like this Court to keep in mind that the respondent didn't file a brief before the Board of Immigration Appeals, so before this Court sends it back for the board to do it again, please keep that in mind. Secondly, on the question of the test, and was it correctly applied, and consistently, I'd like to refer the Court to petition appendix 17a, 18a, where the test is quoted. The carry-over paragraph at the top of 17a, right near the end, in evaluating the political nature of a crime, we consider it important that the-- William H. Rehnquist: 17a of the petition? Patricia A. Millett: --Petition appendix. We consider it important that the political aspect of the offense outweigh its common law character. Where the phrase grossly out of proportion comes in is simply in the next sentence as an example of something that would be outweighed. Grossly out of proportion is not the test. It is proportionality or atrociousness. The Ninth Circuit made it, and, and we believe that they should not have done that. Second, the discussion in the following paragraph, right under analysis and conclusions, and then on the next page, 18a, there's an entire paragraph saying why that balancing was struck against the respondent in this case. Now, not only did they not file a brief, but... it is our position that some crimes don't require a lot of explanation, and that masked men wielding sticks, lobbing stones, forcing people out of stores, destroying stores, and splashing gasoline on buses and setting them on fire doesn't require a lot more than what the board said here. Ruth Bader Ginsburg: With all that, suppose it were established crystal clear that if this person is sent back to Guatemala he will be horribly tortured, the answer would still be the same? Patricia A. Millett: The answer under the withholding of deportation provision would be the same. However, as we reference in our reply brief, there is now a torture on convention that the United States is a party to, and that the Immigration and Naturalization Service has recently issued regulations on, and that sets up a procedure-- Antonin Scalia: Convention on Torture, you mean. Patricia A. Millett: --Convention on Torture. Antonin Scalia: There are those of us who think that there should be torture for a convention, maybe-- [Laughter] Patricia A. Millett: I apologize, Convention on Torture. And that sets up the regulations, which I would be happy to lodge with the Court if it's interested, set up a procedure called deferral of removal for someone who is disqualified from withholding of deportation, but meet... can show and meet the convention's definition of torture. Stephen G. Breyer: What's bothering me, and I can't quite get my hands on it, is this... is purports to be, as it's presented, an argument about what standard to apply. But looking at the paragraph that you just read, and the Ninth Circuit, it may be that everybody agreed on what the standard was, and it's that McMullen standard, and this is really a case about whether or not that BIA board applied the standard that they purported to apply. Patricia A. Millett: The problem is that-- Stephen G. Breyer: And if I read through this record and come to that conclusion, I'm not sure what to do. That's why I ask the question. If this isn't really a case where people are disagreeing about standards, at least in the political... they may be on the serious word, the word serious, but they may not be on the word political. It may be grossly disproportional is what they mean. Patricia A. Millett: --The problem is that in addition to balancing the risk of persecution the Ninth Circuit added two new factors, and it is not at all clear to us that those are not intended to weigh upon this political analysis. Two new factors to add on top of this disproportionate analysis. Stephen G. Breyer: Which are? Patricia A. Millett: One is changing the or atrocious to and atrocious, or and approaching atrociousness. Secondly is necessity and success. Now, maybe they would come under both factors, but it's... I think it's critically important that this Court hold that the Attorney General is not compelled to adopt those standards. Thank you. William H. Rehnquist: Thank you, Ms. Millett. The case is submitted.

Earl Warren: Number 60, Abram Flaxer, Petitioner, versus United States of America. Mr. Rein. David Rein: May it please of Court. This case is here to review a conviction for contempt for refusing to produce certain records before the Subcommittee on Internal Security of the Senate Committee on the Judiciary. The time of the incidence which led to the indictment on this case, the petitioner, Abram Flaxer, who was National President of the National Labor Union, the United Public Workers of America, this union organized members and various continental agencies, federal, state, county, and municipal governments. In 1951, about which is the time at which the subpoena was served upon him which led to this case. This union had approximately 35,000 members. On this number, only about 5% were employed in the Federal Government mostly in the Bureau of Engraving and the Post Office Department and of the Records Administration. The remaining members of the union were employed in state governments, county governments, and municipal governments throughout the country. On September 19th, 1951, petitioner was served with subpoena duces tecum from the Subcommittee on Internal Security of the Senate Committee on the Judiciary. This subpoena called to the production of the union's records including certain financial data of the union. And of the issue which is raised by the indictment in this case, also the names and addresses of all of the union members employed by the Federal Government and the names and addresses of all union members employed by state, county, or municipal governments. The subpoena bought a signature of Senator McCarran, he was at that time Chairman of the Subcommittee. The subpoena contained no information as to the subject under inquiry or the reason why the Subcommittee was interested the information.It appears from the record that the subpoena had been prepared by members of the staff and the Subcommittee and apparently without any formal advance approval or authorization by the Subcommittee itself. Petitioner appeared in response to this subpoena before the Subcommittee on October 5th, 1951. Only one member of the Subcommittee was present at the time, Senator Watkins. At the outset of the hearing, petitioner preceded -- objected the proceeding in the absence of a quorum, stating that he did not believe that a single Senator constituted a quorum. Senator Watkins overruled this objection saying that under the rules of the Senate and of the Subcommittee, he did constitute a quorum for all purposes. At this hearing, petitioner produced as demanded by the subpoena, the union records would show the amount, the source, and placement deposit of the union's funds, and also organizations to which the union has contributed during the past 12 months. He was asked and he answered various questions concerning the method of operation of the union and the number of distribution of its members among various governmental agencies. He brought however, producing the names and addresses of the union's members. He argued, and I like to turn now to page 7 of our brief in which we quote from the record in which he stated his position as to why he did not wish to produce all the list -- the membership list of the union. He said that this demand invaded the right of the union to the privacy of its membership records. And the experience of this country had taught that invasions of this privacy were served to -- to compile blacklists for the sole purpose of destroying unions. And he said, and I'm quoting now, "Every individual who joins the union, joins it with the confidence and trust supported by tradition and law that the act of joining and maintaining membership is a personal right and freedom that isn't violative." A request such as the present constitutes a wholesale invasion of such privacy, and the right to be let alone which is protected by the Fourth Amendment. Every trade union member imposes a special trust in these union offices to protect and preserve that right. Therefore, to submit to the request in this subpoena would be a violation of the trust imposed in me by my membership and the betrayal of the entire trade union movement in this country. I have no doubt that not a single union president which find it possible to comply with such a request. He said, "I'm confident that the members of this committee, after considering my views and after studying the full implications of their request made in this subpoena realized its conflict with the basic union traditions of this country now incorporated to federal law and withdraw the demand for membership lists." He added at the time that he did not have -- he had not compiled in advance this list of union members because he considered the demand to be an improper one. Senator Watkins directed him to produce the membership list. Nevertheless, at this point, petitioner asked for reconsideration of this request, arguing that the demand for the list was in violation of a national policy against an employer asking the names of the union members. Senator Watkins replied that there was no law holding that the United States itself could not find out the names of members in its employees who belonged to a union. Counsel for the committee, Mr. Arens then asked petitioner, "How long it would take him to compile this information?" Petitioner replied that he probably could compile it in about a week. Although he did not have a membership list of the kind called for in the subpoena, the information was available to him for that purpose. Senator Watkins thereupon ordered the petitioner to produce the information within 10 days from the date of the hearing. That is October 5th. Speaker: Is between -- this was the -- this took place on the day when the original subpoena was returnable? David Rein: That's correct. October 5th which was the first time he got an opportunity to appear before the committee which was the date in which he was asked to appear. Speaker: So the 10 days is in effect an extension of the subpoena. David Rein: I would think so, Your Honor. That's one of the points we argue in our -- in our brief later. Speaker: Do you think it is an extension of the subpoena, Mr. Rein? David Rein: Well, I think it is, yes, very definitely. Petitioner again objected -- Felix Frankfurter: Well, does that mean that if a subpoena is returnable on a given date, the -- assuming as I do for the purpose of discretion, authorizing -- issuing tribunal whether a court or an administrative agency, a current committee can say what we've asked, have it -- it takes more time to be assembled and therefore, we'll be able to bring this up 10 days then? David Rein: I -- Felix Frankfurter: What's the nature of the infirmity here? David Rein: The informative in this case? Felix Frankfurter: What's the nature of the infirmity, what is formed in the extension? Suppose it is an extension, what is the infirmity in that -- assuming the tribunal has jurisdictions, has power to ask for what was asked in the subpoena and a return was made on the return date, what is the infirmity of the tribunal saying, "I now see it takes more time than I thought or we thought." David Rein: Well, there is no infirmity in that. Felix Frankfurter: What did -- but you said that's one of the points you've taken. David Rein: Yes. There is no infirmity in that. The only issue -- Felix Frankfurter: What's the infirmity? David Rein: The only issue was that the petitioner is not guilty of contempt on that day. That's the only point we make about it. Felix Frankfurter: And is the -- is the indictment made as a contempt on that? David Rein: Yes. As a matter of fact -- Felix Frankfurter: (Voice Overlap). If he says, "I'm not going to produce any of it," -- David Rein: Well he didn't say that. Felix Frankfurter: -- the return date evaporates? David Rein: He didn't say he was not going to produce it. Felix Frankfurter: Well, that's the -- that's the question. But the mere fact that there's an extension, I got the impression -- David Rein: Well, the mere fact that there's an extension raises other issues -- Felix Frankfurter: What makes that (Voice Overlap) -- David Rein: -- but it makes us clear -- it makes it clear that he's not guilty of contempt on that particular date. Felix Frankfurter: It all depends what he does that day. David Rein: Well that's true, but I would get to that. Felix Frankfurter: But merely because there's an extension for the fulfillment of the order doesn't aide as we know infirmity and that will be, doesn't preclude this -- his having been guilty but subsequently there on that day. David Rein: Well, I'll get to that point in my argument. Felix Frankfurter: I know. David Rein: It's just one of -- Felix Frankfurter: I would -- David Rein: I may say -- Felix Frankfurter: (Voice Overlap) -- your quick answer because that's one of your points. David Rein: I may say it's one of my many points in this case. I think it's a good point but it's certainly not our principal point. Petitioner again objected and he asked the committee to reconsider this request. He said at that time, "That I don't think that these lists can be looked upon in any other like than as blacklists." The Senator replied to the petitioner at that time that this was an executive session of the Subcommittee and that the records were not necessarily be made public, to which the petitioner replied, and I'm quoting now from page 9 of the brief. "So, on that I don't see any good purpose that these records would serve even if I were to produce them. I think that they are wholly irrelevant if you say they are not to be made public." Senator Watkins said that he was not promising that they would not be made public because he did not think that the Government had to make such a promise to get the information. Mr. Flaxer then said, "I think with all due respect to the committee you are infringing here on an area which just crosses the boundaries of individual rights as well as trade union rights far beyond the contemplation of any." He was cut off in the middle of that objection by Senator Watkins' statements that whatever your argument is that is the order now. A colloquy ended with Senator Watkins stating to the petitioner that he was ordered to produce the records within 10 days. The petitioner stating that he would take that request under advisement. At no time during this hearing did the Subcommittee state what was the subject of the inquiry, the purpose for which the subpoenaed membership list was desired, for what use whether it could be made of the list by the Subcommittee. What I have read to you here is the complete transaction which is relevant to the demand of the Subcommittee. At the trial, the Government introduced in evidence only two things. One, or -- well, I should say, they introduced the subpoena, they introduced the transcript of what occurred at the Subcommittee hearing, which was succinctly as I have put it to you, and also they put on the stand just one witness. That was Mr. Richard Arens, counsel for the Subcommittee, who was put on the stand to testify as to what the pertinence of -- of this particular demand was. Mr. Arens testified that the Subcommittee had information that the petitioner in this case, the Union Secretary Treasurer, a former Negotiation's Director and "certain members of its executive board" were members of the Communist Party. In that connection I'd like to indicate what the Government's position seemed to be in that respect. We objected to that type of testimony on the ground that it was hearsay. The Government said, and I'd like to quote here for Mr. Hitz's statement. We are not trying to prove he was a communist -- Speaker: Where are you reading at? David Rein: Page 52 of the record, in the transcript to the record. We are not trying to prove he was a communist. We are trying to prove that the committee thought he was and that is enough to get him before the committee and his records. I assume that referring to his records in this connection, Mr. Hitz's man, not the petitioner's records, but the records of the union. Earl Warren: Where is that 52, you say? David Rein: Yes, at the very top of the page 52 -- Earl Warren: Oh, yes. David Rein: -- of the transcript of the record, that statement of Mr. Hitz. Mr. Arens was the only witness. Neither he nor any other witness gave any testimony as to what was the subject and their inquiry, or the pertinency of the union's membership list to any subject. Nor there is any evidence in this record as to why the Subcommittee wished the names and addresses of these 35,000 union members or what use it intended to make of that information. The trial court ruled -- denied our motion for judgment of acquittal. It ruled over our objection that the records were pertinent to some subject under inquiry though it never bothered to state what that subject was. It also ruled as a matter of law that a quorum had been present. The petitioner was convicted on both counts of the indictment. I should indicate that although there was only one subpoena here, the indictments set the refusal to produce in two separate counts. One count covering the refusal to produce the names and address of the members of the union employed by the Federal Government, the second count, alleging a failure to produce the names and addresses of members of the union employed by state, county and, municipal governments throughout the United States. This appeal was first heard before a three-judge panel below or before the decision was rendered, it was heard en banc. I think it's important to turn to that first decision of the Court to indicate its theory as to why these records were pertinent. It's the only place where any theory was expounded anywhere here, and as I gather from the Government's brief, and apparently it's the nature of -- of the Government's theory. And I turn now to page 104 of the record where the majority opinion on the first opinion was written by Judge Wilbur Miller. And he said it was because of -- now, I'm reading now from the top of the page 104. It was because of congressional alarm reflected on that Act, I'm referring to the Subversive Activities Control Act of 1950, and other recent legislation that the Subcommittee was authorized to study and investigate the extent, nature, and effects of subversive activities, including the infiltration of labor organizations by persons who are or may be under communist domination. Against such a background, the pertinency of the membership list demanded by the subpoena is at once apparent. He then said, "The names could be used to check against a list of subversives to determine the extent of infiltration into the union, a matter clearly pertinent under the resolution particularly since this is a Government employees' union even though the names of state and local members are included, regardless of where they were employed, the names of members were pertinent because an investigation of the union was pertinent. We brought this case here on a petition for certiorari. This Court without hearing argument vacated the judgment below and sent the case back to the court below to reconsider in the light of this Court's decision in Watkins against United States. On remand, the Court of Appeals again hearing the case en banc affirmed, again affirmed the conviction. In its opinion, it did not indicate whether it endorsed the views originally expressed by the Court in its original opinion. It was entirely silent on that subject. Although one of the principles we believe in Watkins was the important principle as indicated here in the arguments yesterday of balancing invasions against the Bill of Rights against what might appear to be a justification of the Government for the information. The Court gave no consideration to that problem at all. He considered only one question, and that is the question as to whether the petitioner had been informed of the pertinency of the demand. It came to the conclusion to which I will later address myself that it was not necessary to inform him because the petitioner already knew what the -- what the pertinency was. We contend here that there are at least six separate grounds upon which a judgment of acquittal should have been entered in this case. I do not believe that I will have time to cover all of those grounds in my argument. I would like just briefly to state what our position is with regard to all of those grounds. We state first that the judgement below is erroneous because there is no proof anywhere in this record as to what the subject under inquiry was, as to what the pertinency of the particular demand was to any subject under inquiry, and there is no showing of any legitimate or legislative purpose. We contend also that under the doctrine of Watkins, one is to balance, so gross an invasion of the Bill of Rights as it's present here against an asserted government purpose there is nothing to balance. We have only here a gross invasion.We have nothing on the other side. We contend thirdly that petitioner was not informed as required under Watkins of the pertinency of the demand. We contend also that the resolution strictly as applied here was too vague to furnish us an authorization for compulsory process. We contend also that the single Senator present was not under the rules of the Senate and under the rules of the Subcommittee itself, a quorum of authority to rule upon petitioner's objections. And we contend finally that in any event, there was clearly no contempt on October 5th which was the date set forth in the indictment. Speaker: What did the Court charged the jury on the -- David Rein: They must find a contempt on October 5th that it should not consider. Both sides agreed and the court below agreed that the issue of whether there was any contempt at any other time was not in the case. That only issue before the jury, the only issue raised by the indictment, the only thing tried in this case is to whether or not there was a contempt on October 5th. I think there's no -- no issue was ever raised about that. We asked for instructions. To that effect, the Government agreed to it and other courts on charge. Felix Frankfurter: But if you've heard about that Mr. Rein, that's the end of the case, isn't it? David Rein: That's correct. Felix Frankfurter: Then we don't have to go in to these far-reaching sessions. David Rein: That's correct. Perfectly correct if there were -- Felix Frankfurter: But you're going to draw the deduction that I would draw from your answer namely that's the piece to dispose off first? David Rein: Well, I think that that's -- I think that I have a number of arguments here. Some of them are not very far-reaching but I think it's important for me to present to this Court at this time all of the reasons why I think -- Felix Frankfurter: I understand that you should know. David Rein: -- of the petitioner's regard in this case. Felix Frankfurter: But if you're right about that, you're confident that you're right, that's -- that's the end of the matter. David Rein: That's correct. Felix Frankfurter: It doesn't mean you shouldn't argue with the other points.(Voice Overlap) -- David Rein: Well, I'm confident of all of these points and of that as well as there'd be others. That is correct. Felix Frankfurter: But you're going to start with the biggest point, aren't you? David Rein: No, I'm going to start with a small point, [Laughs] a relatively small point. I'm going to stop with the point that the prosecution here, that the conviction here must be reversed because of the failure of proof of the subject of inquiry, the failure of proof of pertinency and the failure of the Government to prove any legitimate legislative purposes. Felix Frankfurter: That's the constitutional point, isn't it? David Rein: Well, not necessarily. Felix Frankfurter: The first one is -- David Rein: No, not necessarily -- Felix Frankfurter: The failure to disclose -- the failure to disclose the subject matter, therefore he has the right to keep his mouth shut because the First Amendment, from your point of view protected this. David Rein: That's correct. But we do not even need to reach a constitutional question because the statute involved here, 2 U.S.C. 192, says that a witness is not guilty of contempt unless he refuses to answer a question which is pertinent to a subject under inquiry. This Court has held in Sinclair and in other -- in other cases purely as a statutory matter although you can also do it for constitutional reasons but purely as a statutory matter that the burden is upon the Government and all of these cases to prove pertinence, to get it within the meaning of 2 U.S.C. 192. So although it has constitutional overtones, it can be decided purely on that statutory ground, and there's a statutory requirement approved for pertinency. Speaker: Will you leave your time enough -- save enough time in any event at some stage to argue the date of the contempt, if you go that part? David Rein: I will -- sir, I would say on that, Your Honor, if I may perhaps -- well, I'll take no art of order and address myself briefly to that. I think that that point is covered absolutely adequately for my purposes while the dissenting opinion written by Judge Edgerton in the original opinion in this case in which he pointed out quite clearly the fact that the way this colloquy ended, there was no obligation upon the petitioner to produce anything on October 5th. That he was ordered to produce it 10 days later. Now, the majority -- Speaker: It is -- David Rein: I'm sorry. The majority of the Court disagreed and this was its reasoning and I can state it very briefly, that it did not matter what happened toward the end of the discussion, that what was important was the fact that somewhere during the colloquy and it is true, he was ordered to produce in accordance with the language of the subpoena. That therefore, he was guilty of contempt in all of the other discussion, the argument that went back and forth did not matter. I'd like to indicate, Your Honor, purely as a technical matter that the petitioner really was under no obligation to produce this membership list within the terms of the subpoena because as I understand it, he is only required to produce things which are in his possession. He had no such membership list in his possession. He would've had to compile such a membership list in the first place. And it was only reasonable, it seems to me, for him to come to the committee at the first time he had an opportunity to come to the committee to make his arguments before going to what would have been considerably expensive trouble of compiling the list which was not in his possession. Charles E. Whittaker: Did he resist the subpoena on that ground, Mr. Rein? David Rein: No. He didn't resist the subpoena on that ground but he did not actually go to the trouble of compiling the list until he had an opportunity to present his argument. Charles E. Whittaker: Was there -- was there a time intervening between the date of service and the return date in which to have prepared the list? David Rein: I assume there was. Yes. Charles E. Whittaker: Do you know offhand the date of service? David Rein: Yes, there was. He was served on September 19th. He appeared October 5th. He said he could've put -- Charles E. Whittaker: (Inaudible) David Rein: He said -- he said he could have prepared it within a week. There would've been time to him to prepare it and he makes no issue that he did not have it then, necessary time. I make only the point that this was the first opportunity he had to protest or to the propriety of the demand. And I may say that there is no indication here that there was anything of time was in anyway of essence to the committee that it had to be produce on -- there was anything magic about October 5th. To turn now to the question of the failure of proof in this case, we contend that I think the record bears this out that the prosecution did not prove either the subject under inquiry, the pertinency of the membership list, or any legislative purpose. There is nothing in the transcript of the hearing here which would give any indication of any of these elements. And certainly one cannot find it in the vague language of the resolution itself. At the trial all we have in addition to the transcript was the testimony of counsel for the Subcommittee, that the committee had certain information that certain officers of the union, including the petitioner, were members of the Communist Party. And that's all there is. By itself, this does not demonstrate either a subject under inquiry or that the inquiry has a legislative purpose. And more important, it certainly shows no rational basis, certainly no legitimate basis for the demand for a list of 35,000 members of the union. The court below and the Government here contend that the subject under inquiry, their language, was whether or not there was Communist Party infiltration into the union. We say that there was a number of difficulties with this contention. First, there is nothing in the record to support it. The Government concedes there is nothing in the record that no one ever said that. If there is however, that one can gather that that was the subject under inquiry from the entire tenor of the proceeding, we would say first, that certainly one cannot gather a subject under inquiry or pertinency with the undisputable clarity that is required in contempt cases as indicated by this Court in Zacher against the United States from the entire tenor of a proceeding particularly since the Government, although it refers to entire tenor, it can appoint to no statement made either by Senator Watkins or by counsel for the Subcommittee. In addition, we say, even if you examine this tenor from beginning to end and all the way through, you cannot find that subject under inquiry. What is the tenor of the proceeding? The tenor of the proceeding is that the petitioner was asked certain neutral questions about the method of operation of the union, the number of its members, the distribution of these members. All of which questions he answered. The only thing that you can gather from the tenor of this proceeding was the fact that the petitioner repeatedly and consistently complained and objected that the sole purpose of this demand was to employ the list for blacklisting purposes. That charge, it has, was never reputed or denied by Senator Watkins. The only other thing that we have here is a statement by Senator Watkins during the course of the colloquy. That there was no reason why the Government was not entitled to know which of its employees belong to a union. Now we have here a situation where Senator Watkins with the Subcommittee of one, of a Subcommittee of a full -- of a Subcommittee of seven, of a committee of the Senate of one house of our national legislature. Now, I think for the Senate there to equate himself with the Government of the United States, and to say that the Government of the United States had a right to know which of its employees belong to a union hardly indicates that the Subcommittee necessarily had that right or that the Subcommittee had a legitimate subject under inquiry even assuming that the Government had such a right. Charles E. Whittaker: Were the Government being an abstraction, it have to get it through its legislative agency? David Rein: Well, no. Not unless it served a legislative purpose. This Subcommittee -- Charles E. Whittaker: How -- David Rein: This Subcommittee has not the right to demand a list of union members on the abstract proposition that the Government is entitled to this right. This Subcommittee can demand it only if it within the jurisdiction conferred upon it by a valid clear Senate of resolution -- Charles E. Whittaker: I wasn't referring -- David Rein: -- that fall within the jurisdiction. Charles E. Whittaker: -- to the matter of whether they might lawfully do it. I was referring to the means, the mechanics, how could the Government in the abstraction obtain information except through agents? David Rein: Well, presumably they could pass an act, passed by both Houses of Congress and signed by the President of the United States if they were interested in it. Charles E. Whittaker: And thereby obtain information? David Rein: Well, I don't know what information. The information have to relate -- Charles E. Whittaker: That's provided for by the subpoena? David Rein: Well, my point is, Senator Watkins' statement that the Government is entitled to know does not advance the Government's case that there was a legitimate subject of inquiry before this committee. That's (Voice Overlap) -- Charles E. Whittaker: And I misunderstood you on it because you said, he erred in equating himself with the Government. David Rein: Well, I think he did because he was asserting that the Government had a right, that of meeting an issue, which is that this particular Subcommittee had a legitimate legislative purpose within the jurisdiction confined to in the Subcommittee. I think he did err in equating himself with the Government because he did not have all of the jurisdiction possessed by the Government in all its parties. Even if one assumes that this was a subject of inquiry, this does not, it seems to me, advance the Government's problem. Because the question still remains, the important question in this case is, what is the pertinency of the list of 35,000 members of the union to even that subject under inquiry? Now, to plug this gap, the court below in its original opinion and the Government here employed another improvisation. And that is that the names of the union members could be check against a list of subversives. Now again, we run into a number of difficulties. First, there is no evidence here that this Subcommittee had a list of subversives. And, I would submit it doesn't seem to be a proper function for any legislative Subcommittee to compile and maintain such a list. I would also say and I think this Court can clearly take notice that it is extremely unlikely that 1951 at the time when the loyalty program of the Government of the United States had been in full force in effect for a number of years that there were going to be any government employees on any list of subversives. They obviously would no longer be in the Government. We contended that it's improper even to make this assumption by the court below for a legislative Subcommittee to be in the business of compiling the lists of subversives. And, I would go so far as to say I cannot see that it would be a proper function of any Government agency to compile such a list. The Government in this brief replies, I like to turn to brief 53 as to how they made that contention, and this is the Government's brief. It says and I'm reading now from the middle of the page. Nor was it necessary for the committee to have had a master list of subversives for the union membership list to have been useful to the committee in its inquiry. The court below said nothing about any such master list, so termed as petitioners. But the committee certainly had in its files as a result of its prior investigations, names of persons who there were at least grounds for believing war members of the Communist Party. I submit that this does not show that the purpose is anymore legitimate. It merely shows that a list is not a comprehensive or good list or a master list. It merely shows that it would not have been very useful even for this illegitimate purpose. Finally, we come to the problem of legislative purpose. Hereto, the record is completely bare. The decision of the court below and that is in both opinions didn't really consider the question. Indeed, if you read those opinions, it would seem to have adopted a view which was directly repudiated by this Court in Watkins that the inquiry was an end in itself, but merely that fact that -- and perhaps, I think they adopted a view which we -- will be put by the quotation I read from Mr. Hitz. That once they had information that the petitioner was a member of the Communist Party, they had a right to demand the records of the union and one may not go beyond that. In other words, the inquiry serves its all purpose. It need not have a legislative purpose. The Government here on appeal, and I think for the first time in the Supreme Court -- well I think it did raise it earlier in -- it's opposition to the petition for certiorari comes forth with a number of hypothetical suggestions as to what conceivably might have been of the legislative purpose of the committee. We have treated that in our reply brief. I do not think I have the time to go into them in full detail here except to say this. One, they are afterthoughts. Two, they are hypothetical suppositions as to what the committee might have had in mind. They are clearly farfetched and fanciful. And most importantly, in no case does the Government establish a nexus between a list of 35,000 union members in any of these purported legislative purposes. I want to comment just briefly on one suggested legislative purpose. It appears in the Government's brief at page 42. And that is that the Subcommittee here might have been interested in determining whether or not the union was a communist front organization as defined by the Internal Security Act of 1950. We would contend that if that had been the purpose of the committee, it would have form squarely upward of the language of this Court both in Quinn and in Watkins that legislative committees are not law enforcement agencies, nor trial agencies. The function of determining whether any organization is a communist front organization is committed by the Internal Security Act to the subversive activities controller -- Subversive Activities Control Board subject to judicial review. It cannot be determined by the kind of ex parte investigation that was conducted by the Subcommittee here. Speaker: (Inaudible) David Rein: Sure. Speaker: Was there any objections (Inaudible) that required a lot of work comparably with the things of that matter? David Rein: Well, it didn't -- it was not to its breadth in terms of work. It was -- into its breadth in terms of being a sweeping wholesale invasion of privacy without any justification. Charles E. Whittaker: Which would imply even to a small group, the theory as I get from the objection here, it was not on account of the -- being the first department is, but it was objection to -- a violation of the right to privacy if any at all. David Rein: Well, except that it gets aggravated in terms of what legitimate purpose can a committee have as the group gets larger and larger. Charles E. Whittaker: (Inaudible) in subpoena, if -- but to have a list from that, you must -- you object on that ground, is it not? David Rein: Well, they argued that it was abusive in asking for the names and addresses of all the members of this union, yes. Charles E. Whittaker: But wasn't it because it did that or is it because it has violated the right to privacy? David Rein: Well, I don't see a distinction between the two. I'm sorry. I think it's the same thing. Felix Frankfurter: Mr. Rein, may I ask you, putting to one side explicitness, appropriate explicitness of congressional purpose and putting to one side the question of authorization of the questioning committee quorum, all of it there. Assume they're all satisfied. What do you concede to be the limits of power of Congress in appropriate committee inquire into them the Security Act that Congress has passed in order to ask the names whether, (a) it should repeal it or whether (b), should extend it or modify it. What kind of scope does a Committee of Congress if it had rested at those -- to those that I concede to be clearly legislative problems. David Rein: Well, I don't think I can answer that question to the abstract. I agree with you -- Felix Frankfurter: We need to find out -- we need to find out so that may be specific. Did find out whether the whole Security Act as a utility in the sense that it's addressing itself to non-existing evil or can it find out whether the Security Act isn't tight enough or extensive enough or intensive enough because the evil is greater than Congress had inspected. David Rein: Surely. Felix Frankfurter: Can it go to those things? David Rein: I don't see any reason why it couldn't. Felix Frankfurter: Could that -- can it go and explore to what extent, there is whatever subversion maybe. David Rein: well -- Felix Frankfurter: There's a phrase where it say, Congress can't consider the problem with subversion to take us very far. David Rein: No. And I think -- Felix Frankfurter: When you're speaking the power of Congress. David Rein: I'm not presenting that -- that view at all. Felix Frankfurter: But you've indicated a while ago that -- shut off, you used some phrase under the Watkins opinion that is not beyond the power of Congress to go into these problems. Is it beyond the power of Congress? David Rein: I'm sorry I don't recall using any such phrase. Felix Frankfurter: Well, -- the United States, the Watkins' case barred Congress in doing it. David Rein: Well, I would say whether the Watkins case bars Congress from doing it as I read it, the problem presented by this Court by the type of resolution that you had for the House Un-American Activities Committee -- Felix Frankfurter: But assuming -- assume the resolution is sufficiently different so there is no (Inaudible) on that fall. David Rein: Well, then I don't think we necessarily have a problem then we would have to discuss each particular case to see whether or not the request is pertinent to a -- Felix Frankfurter: But supposing -- David Rein: -- a definite subject under inquiry. Felix Frankfurter: Well, take my -- take my hypothesis. If Congress bears an explicit language, "We have now in the books of the statute at large, the statute dealing with National Security to disregard to various aspects of what most colloquially I call disloyalty, subversion. We want to find out whether this is a needless statute or whether it's an inadequate statute. That would be an explicit purpose over this? David Rein: Yes. Felix Frankfurter: Would that be explicit enough? David Rein: It would be an explicit purpose. You still have the question as to whether what questions they were asking particular people had any bearing on that side. Felix Frankfurter: That's right. I'm trying to find out the area of subject matter not the specific question. Could they -- could they try to find out whether there's any achievement for any such statutes. David Rein: Surely. Felix Frankfurter: And therefore in order to find out how they would have to find out whether there are such things as subversives, whether there is such a thing as subversive. David Rein: I would think yes. Felix Frankfurter: Well, that -- doesn't that open up an area of examination pretty broad to find out? How can you find out subjectively unless you can find out that there are subversives? David Rein: Well, you don't have to have 35,000 names -- Felix Frankfurter: I'm not -- David Rein: -- of the people who aren't reputed even to be subversives. Felix Frankfurter: Mr. Rein, I'm not suggesting myself to the specific questions. I'm trying to find out -- David Rein: Well, I find it hard -- Felix Frankfurter: I'm just trying in the argument what your arguing is, the scope of congressional power. David Rein: I find it -- Felix Frankfurter: And to me, that's (Inaudible) David Rein: I find it hard to discuss this question in the abstract. Felix Frankfurter: Well, but you are discussing it. David Rein: It might have -- no, I'm not. I have, not here. Felix Frankfurter: The mere question is -- if the mere question is whether 35,000 was too large in effect, if they'd been asked to produce the list of the 500 (Inaudible) of the 50 members. If you're going to the question of 35,000, then you reach the problem that Justice Whittaker posed to you. David Rein: No, I do not. Felix Frankfurter: Just -- do not take your answer. David Rein: No, I do not. Felix Frankfurter: Making this -- David Rein: Let me put it this way. Felix Frankfurter: -- the excessiveness of the subpoena which is the mere difference -- David Rein: Let me put it this way and I will say this, that assuming a legitimate legislative purpose which I do not take it's the function of this Court to assume and to supply to a Subcommittee which hasn't presented any evidence as to what it was doing, but committees having a legislative purpose can only look into subjects generally. And I don't see -- and I would go this far, I can never see any purpose under which having the names and addresses of 35,000 members of a union can possibly further any legitimate legislative purpose the fact of getting names and addresses in itself is an indication that you're not thinking in legislative terms. And I would make that as my proposition. Felix Frankfurter: Well, my imagination is equal to excluding the possible relevance even to such an inquiry. David Rein: Let me say that if your imagination was equal to it, it's not your function here to extend it. It's the function of the Government in the trial or the Subcommittee to make some showing of how this would have assisted it. Felix Frankfurter: I agree with you entirely on that. I'm not -- David Rein: It's hard to make. My imagination, I would say, does not extend as far as Your Honors. I do not prescribe it. Felix Frankfurter: I didn't claim mine did extend. I said my imagination isn't equal to fencing off Congress absolutely and saying it's irrelevant. David Rein: Well, I can think of no circumstances -- Felix Frankfurter: Subversiveness -- David Rein: -- now where it might be. Well, that's about to -- Felix Frankfurter: I don't think it's our -- David Rein: -- where I'll have to label. Felix Frankfurter: -- business here to indulge in abstract fencing of a subject to Congress. David Rein: I'm not asking this Court to do that. I want to go briefly to the doctrine advanced by this Court in Watkins and more recently in NAACP against Alabama. There, the doctrine was set down that wherever there is a gross invasion or any invasion of the First Amendment rights, and here you have a gross invasion, there must be a balance to determine whether or not the governmental purpose justifies of that invasion. I would say in this case, we have nothing to balance on the other side, and secondly, there is no more reason to permit the demand of these names than there was in the NAACP case. There is no more relationship between the demands of 35,000 union members and any alleged purpose of the committee shown here in this record than there was in NAACP versus Alabama. Charles E. Whittaker: Would that have been (Inaudible) David Rein: I don't think so. I don't think so because we still don't know why they wanted it and it still appears here. And I like to address myself however, to that question on the assumption that there is a difference, and that really was my next point. At the invalidity of the subpoena was aggravated in this case by the fact that the bulk of the names it asked for were those of state, county, and municipal employees. I like to first bring to the Court's attention its own doctrine as set forth in the Bowman Dairy case. That whenever a subpoena, a single subpoena covers matters which are good and bad, one is not in contempt that one refuses to violate that subpoena because the language used is that the one who had subpoenaed the witness is not required to call the good from the bad. Therefore, if this Court holds that it was invalid and improper to demand the names of the employees, not employed by the Federal Government, and the entire subpoena must fall in both counts of the indictment must fall. Charles E. Whittaker: (Inaudible) David Rein: That's a specific objection. Charles E. Whittaker: Well, does he not? David Rein: He does not have -- he can contend as they did in the Bowman Dairy case that all of the subpoenas is bad -- Charles E. Whittaker: As I understand -- David Rein: -- as he did here. What? Charles E. Whittaker: Did he do that without inspection (Inaudible) David Rein: Well, you have to object if the whole subpoena was bad. You don't have to say, "I think part of it is good and part of it is bad." Charles E. Whittaker: He didn't say why? David Rein: Well, he did say why. Charles E. Whittaker: (Inaudible) David Rein: You don't have to be right. My point is this. You don't have to be right in all respects. Charles E. Whittaker: Your position is that here, and to the fact that (Inaudible) David Rein: Well, certainly. I don't think there's no question about that. We argued in our brief and it set out that certainly, in the field of relations between State and its own employees is at least presumptively a matter beyond federal jurisdiction. That for the Government, the Federal Government to invade that field, it must make at least a positive showing as to why it is justified in invading that field. We say here that there is absolutely no showing at all. There was none in the court below. There was none at the trial. The only thing that is presented here is the argument of the Government which I can only characterize as fanciful. That the Subcommittee might have been interested in doing something about that section of the Constitution which guarantees to the State, every state in the union a Republican form of government. The Government however, does not carry that contention to the point of trying to establish a nexus between these lists of names in that purpose. I want to turn out briefly to our contention that in any event, a judgment of acquittal should be -- be enacted because of the failure to inform the petitioner of the pertinency of these records as required by Watkins. The Government concedes here that nothing was said at the hearing which would satisfy this requirement, nothing at all. It contends however as did the court below that it was not necessary to satisfy this requirement for three separate reasons. One, that the subject was indisputably clear from the tenor of the proceedings in any event. Two, it argues that petitioner did not adequately raise the issue with pertinency. And three, in any event, the petitioner was well aware of both the subject of inquiry and the pertinency of the list. I think so far as the first subject is concerned, that everything was so clear, but nothing need be said. I've already addressed myself sufficiently on that point and need not go into it. On the second point, the argument that the petitioner did not adequately raise the objection of pertinency, I'd like to look at the record on that and indicate what was it that the petitioner did say. Now, he said, first, that he thought that the list was being asked for -- for blacklisted purposes. Well -- Speaker: (Inaudible) David Rein: I'm going back to what I referred to early in the brief and going over that. Speaker: (Inaudible) David Rein: Yes. He said that the subpoena was a wholesale invasion of privacy and violated the Fourth Amendment rights. In that connection, the Government makes a curious contention. It says that the petitioner's reliance on the Fourth Amendment was that in fact a -- made omission of pertinency. I must say it's always been my contention that my understanding that the Fourth Amendment is the constitutional provision of protecting individual against the demand for irrelevant documents. And therefore it seems to me that if he was required to use autistic terms, he certainly did it when he placed his objection on the Fourth Amendment. He said also that he thought the list was being used for blacklisting purposes. He was cut off in the middle of an objection in which he said that he thought the demand infringed here on an area which just crosses the boundaries of individual rights as well as trade union rights. At that point, it was Senator Watkins who said, "I don't care what your argument is." He had also said, when he said he thought it would be a blacklisting purpose, Senator Watkins said that, "Well, this is an executive session. We can keep this private." He said at that time. "Why don't you keep it private? I don't see how it would be relevant to any purpose even to the illegitimate purpose of blacklisting." Now, I contend, I don't see how a witness could more clearly state his objection to lack of pertinency than the witness has done here. We must remember that the witness is after all are not lawyers. There were some discussions here about the fact that witnesses do have counsel in these proceedings and the witness did have counsel in this proceeding. I'd like to just talk about that for one minute. In these proceedings the role of counsel is limited to advising the witness by a sort of whispering and the witness is here as things come up as to what the witness might say. Counsel does not have the privilege and counsel is not permitted as a matter of fact to make objections on behalf of the witness. It seems to me that under those circumstances, to expect that what the witness is going to say is going to come out in the most precise legal terms or that they are required to come out in the most precise legal terms is more than hypothetical. And I say under any stand and even if hypothetical standard, the petitioner here clearly objected to the pertinency. And therefore -- he was under Watkins entitled to be informed as to what the pertinency was.Finally the Government adapting the reasoning of the court below said that it was not necessary to inform petitioner of the pertinent subject under of inquiry of pertinency because he knew it any way. On that, I do not want to risk, to paraphrase the reasoning of the court below, I don't think I can.I think I would like to read it to indicate what Judge Prettyman said on that score in the second opinion. I'm reading now from page 34 of my brief quoting from the record at 117. Judge Prettyman said, "Even if the resolution is vague, Flaxer's responses to questions demonstrated that he knew what the subject of the inquiry was. In response to the subpoena, he produced the financial and various other records of his union and without objecting, presented them to the committee on the record. He thus indicated that he recognized the nature of the question under inquiry." Now, I would submit that this passage just doesn't have any semblance of logic whatsoever. The fact that the petitioner has no objection to presenting the financial records of the unions certainly doesn't indicate knowledge of any kind. And even if they did have knowledge as to the financial records of the union being pertinent to something, I don't see how you could follow from that or draw from that the inference that he knew the pertinency of the membership list. Felix Frankfurter: Mr. Rein, I think you have only a very little time left. May I ask you to reserve enough of it to document a statement you made earlier that it is both against the Senate rules and the rules of this Subcommittee violated both the Senate rules and the rules of this Subcommittee presented to Watkins as a one-man Subcommittee who have been empowered through (Inaudible) I hope you speak to that before you sit down. David Rein: Well, I -- I will. Felix Frankfurter: If not, just the reference. David Rein: As a matter -- Felix Frankfurter: And give us the references to those rules -- David Rein: Yes. Felix Frankfurter: -- of both the Senate and the Subcommittee. David Rein: The matter is covered rather fully, if I may say so, in our brief in page 43 on to page 52.Briefly our contention rest as follows. After the decision of this Court in Christoffel against the United States which held that a witness there was not guilty of perjury unless his testimony was given before a full quorum of the committee. The Senate rules was changed by Senate Resolution, I think 1 (a) to provide, and here is the language of the change. That -- well, the actual language of the rule appears earlier in the brief at page 3 or page 4 rather (b). Each standing committee and each Subcommittee of any such committee is authorized to fix a lesser number than one-third of its entire membership who shall constitute a quorum thereof for the purpose of taking sworn testimonies. The legislative history showed that the purpose of this change in the resolution was solely to meet the problem of perjury in the Christoffel case. Senator Hayden who introduced the resolution said it makes no other changes in the requirements of a quorum. It is our contention that for an important issue of this kind to determine whether or not the Senate wished so extravagantly to demand -- demand over objections of the petitioner. You have to have more than a single Senator to decide that question. I'd like to indicate that this question had never been decided in advance at the time of the issuance of the subpoena. As it appears from the record there had been no meeting of the committee which decided to issue the subpoena. And we say and I don't think I have more time to say that it is fully developed in our brief -- Felix Frankfurter: But I don't -- I maybe wrong. I quickly glanced over the pages and at the brief but I don't find reference of the discussion which you have said, who was it, Senator Hayden or somebody, Senator Hayden? David Rein: Yes, it appears on page 49. Felix Frankfurter: Well, then -- in other words -– David Rein: 48 and 49. Felix Frankfurter: Am I right in saying that you think that that (b) merely makes a single member practically a master without power to rule on the testimony it makes. David Rein: No. We are not -- we limit ourselves here in this case to say that he does not have the power to rule on objections to a subpoena duces tecum. We do not examine the question of his power to rule on objection to questions alone. We say when it comes to documents that sworn testimony, the phrase "takes sworn testimony" does not include the power to require the production of documents. We say that that is a sensible rule. Felix Frankfurter: I want to be sure what happened to be there, much of his problem and I was of the courts in Christoffel. Does this mean that a single Senator can't pass on relevance of questions asked, but -- but that he can't act -- can't pass on objections to the entire subpoena or the scope of subpoena? David Rein: We are limiting our argumentation here to say he cannot pass upon the validity of a subpoena duces tecum to produce documents. We are not arguing the question of what power he might have for particular questions. We say document is in a different category and sworn testimony does not cover documents. Felix Frankfurter: And you say that if I look at this debate on 48-49, I'll find that verified or indicated by what it said to this. David Rein: Plus our argument. I think that it has to be interpreted in accordance with our argument. Speaker: Supposing -- supposing Senator Watkins had put the witness under oath, he said, "If you complied with this subpoena -- David Rein: He was under oath. Speaker: Well, supposing he asked him, put him on the stand and say, "You comply to this subpoena," and the witness says, "No, I'm not going to comply." I think -- and other answer was, that sworn testimony with reference to the subpoena would be the deciding rule on that? David Rein: Well, now the here -- the issue here is a narrow one. He presented, in my view, this is the only opportunity he had to come before a quorum to present objections in a court let us say, if a subpoena is issued, that is, it would be by an attorney. You go before a court and you say, "I don't think the subpoena should be obeyed." You make your argument. You get your ruling from a competent tribunal. This was as it were, Mr. Flaxer's day in court. This was his opportunity to say and he wanted to say to a quorum of the committee, I don't think you should enforce the subpoena for a number of reasons. First, I think it's invalid. Secondly, and this should not be overlooked even if they had the power, their important policy considerations in terms of a general attitude toward unions nationally. That he was entitled to have those considerations passed upon by a full quorum of the Subcommittee and not by a single Senator who could not act as a quorum -- Speaker: But still -- still your argument assumes that if you've been put on the stand and you've been asked to give as many names of members of this union is possible that he could recall from recollection, you would say, "I object to that on the ground it's immaterial." Senator Watkins still as an individual member of the committee could (Voice Overlap) -- David Rein: Honestly, I don't have -- we don't have to reach that question here. Speaker: But I thought your -- David Rein: I think it had -- Speaker: -- argument assumed that. You've conceded it. You drew (Voice Overlap) -- David Rein: Well, it may or may not. I was saying -- Speaker: -- sworn testimony and unsworn documents as you call it passing the -- David Rein: Well, we limit ourselves to that. We don't necessarily assume the other. We don't think it's present in the case. That's all I would say about that. Charles E. Whittaker: Now, and the word is not just to your argument, that what was said about Mr. Flaxer at that time can't be treated as a motion to quash? David Rein: That's correct. And that he was entitled to have a quorum of the committee's rule on that motion and he did know it. William O. Douglas: Who -- who issued the subpoena? Was it Senator Watkins or the Committee -- David Rein: Well, -- William O. Douglas: -- Chairman or? David Rein: It was signed by the Committee Chairman. The testimony shows it was prepared by the staff of the Subcommittee and we tried to find out whether there had been any kind of a meeting, and apparently, there hadn't been any formal meeting of the Subcommittee to decide the issue of the subpoena. The testimony is that it was prepared by Mr. Arens and another member of his staff that were sent over to Senator McCarran for his signature. William O. Douglas: What -- were there any rules of the committee concerning the issue of subpoenas, who issues them? David Rein: According to the rules, it's issued -- they are issued by the chairman. William O. Douglas: Do you think that that at least the authorities that issues them should be -- should rule only -- David Rein: At least to that, I would go so far as to say that you would have the situation here with Senator Watkins, I don't think he would have the authority to invalidate the subpoena standing by himself after it had been issued by the chairman. So, therefore -- Charles E. Whittaker: And it's just for the motion to quash it, and that would mean, what was being inquired. David Rein: That's right. Speaker: Yes. David Rein: I think my time is up. Earl Warren: Yes, your time is up but we've taken so much of your time for questions, you may have five minutes in rebuttal. David Rein: Well, thank you Your Honor. Earl Warren: You -- Mr. Hitz, you may have five minutes more if you -- William Hitz: Thank you, Your Honor. Earl Warren: -- if you wish it. William Hitz: Mr. Chief Justice and members of the Court. Before addressing myself to the history of this particular hearing and the history of the Subcommittee and its relationships in perspective with the Un-American Activities Committee of the House which I would like to leave with the Court before I conclude my argument. I would like first to correct certain -- perhaps misimpressions that have been advanced here. Inadvertently I know by Mr. Rein with reference to the proceeding that Mr. Flaxer testified before. Now, Mr. Rein made a very fair statement I believe of the background of this case and perhaps because there was a question asked him, he did not fully state what I think is an important part of the factual background. Namely, that Mr. Flaxer who have been served at -- in Beekman Street in New York City where his office was located, some 19 days prior to the return date of the subpoena, apparently from his own testimony, made no effort whatever to obtain the list of members of his union to comply with those several parts of this -- of those two parts of the subpoena which called for his government employees in Federal Government and his governmental employees in state government. And instead of gathering that information and bringing it with him in his own custody of that of his lawyer and keeping it in his briefcase to object to when it was called for. He made no effort in New York to comply. He came to Washington. He was represented by counsel at the hearing which took place here of course or we would not be here. The United States Attorney's Office for Washington would not be here. He produced all available material, the financial reports which might have had some burden, some impact upon him, I do not know, he doesn't say so. But he produced everything except the membership lists. And he -- Earl Warren: Mr. Hitz, -- William Hitz: I'm sorry? Earl Warren: -- do we know from this record whether he had the possession of the membership list or not? William Hitz: We know inferentially Your Honor that -- that he did not because after he had failed and refused to produce the membership list here in Washington in answer to the subpoena duces tecum. He stated that he did not have the material available -- that he did not have the material and would not produce it. That's the way he put it. And I will come to that and quote it from the record. And he said that he would not produce it because he said, "I feel incapable of doing so." And apparently in context what he had referenced to was as an official of the union he felt that legally he was incapable of disclosing the membership list. But that was in respect -- Earl Warren: (Voice Overlap) as an abstract question, can a person who does not have possession of records be convicted of contempt for failure to produce them or to do the necessary work which would enable him to get them and make up the record? William Hitz: Oh, yes. If the failure to have them at the time of demand was at his own -- was due to his own fault. Earl Warren: Well, now, due to his own fault. Due to the fact that he -- I said that he didn't have them in his possession. Would that -- could he -- could he still be in contempt? William Hitz: Oh, I think so. I don't think possession in Washington is the determining factor here at all with reference to his contempt. I think he committed the background of the contempt when he failed to equip himself to comply in Washington when the demand was made. And I think the possession that he did not have perhaps the possession in Washington is immaterial if he deliberately and intentionally made himself incapable of complying by reason of leaving the material in New York City. Earl Warren: But my point was in whether he had possession of them in Washington. William Hitz: Oh. Earl Warren: Or whether he had possession of them at all. William Hitz: I'm sorry. I misunderstood -- Earl Warren: Was he the officer who had possession of those or in order to comply with the subpoena, would it have been necessary for him to get them from the possession of someone else and make up the list as required by the subpoenas. William Hitz: I'm sorry, I misunderstood the question. The record is clear that he had the material available to him in New York City and after a demand had been made and this was one point that Mr. Rein did not, I think, sufficiently opened up to the -- to the Court's consideration. After he had been told by the chairman that we demand the production of the membership lists in answer to the subpoena, and he said, "I don't have them and I don't think I'm capable of producing them," then, and in order to accomplish the legislative purpose that was here involved and it's an important one, the Chairman of the Committee -- of the Subcommittee, Senator Watkins, then probed him as to the possibility of obtaining future compliance upon as then issued oral order for him to comply within 10 days. And in the course of that, Mr. Flaxer stated that, "I can obtain the material. It would take me about a week to do so." And -- then the interrogator, Mr. Arens suggested to the Chairman that there then and now, be given an oral order to produce within 10 days. And that was done. And Mr. Flaxer was told to produce within 10 days. The contempt we say having already been completed with respect to the obedience to the commands of the subpoena returnable on the hearing day on the 5th of October. Speaker: Do you think it's possible to read this record? I was looking at it at page 49 and 50. Although I've taken the premise that it was to be on insistence production on the 5th that that was waived by -- in this colloquy by Senator Watkins and the witness was told then that he could have 10 days more in which to produce? William Hitz: I do not. I think that would be a very strain and torturous interpretation of the record and that it would be strictly an afterthought. Speaker: What do -- what do you with -- Speaker: (Inaudible) Speaker: Excuse me. Speaker: Excuse me. Speaker: What do you do with the last sentence? "Senator Watkins: That is the oath. Well, I have to go back to place this." William Hitz: Are we still on the fifth -- Speaker: Mr. Arens: "Will you produce -- will you produce it pursuant to the order of the Chairman of this session within 10 days and today?" Mr. Flaxer: "I will have -- I will have to take that under consideration." Senator Watkins: "That is the order. And, of course we will have to take whatever steps are necessary if at the end of that time you have not produced them." William Hitz: Well, first, I would like to answer your question by giving my conclusion which is, that this was not a modification of the subpoena direction. And that it was an effort after the futility of any further demands had been clearly -- had been exhibited because he didn't have the material. This was a further effort by Senator Watkins to obtain the material nevertheless at what future time it might be able to be provided. And I would like in that connection, Your Honor, having stated my conclusion, I would like to go back now and attempt to support it to you from the record. And I think it would be well since we are on this subject of the demand in answer to Quinn and also on the subject of whether or not there was a postponement of the subpoena's requirement that I would like to go back to the initial demand that -- to comply. Now, if the -- if the Court will bear with me on page 40 of the record -- on page 39 of the record, and I may say in the middle of the page, Mr. Flaxer stated that his office was in New York. The record at some other point indicates that he was served on Beekman Street in New York City with the subpoena on September 19 to appear on the fifth which is this day. Then, Mr. Flaxer takes over and he notes that a subpoena had been served on him and he says, "I produced all the items," this is near the bottom. Mr. Flaxer: "I have some. I produced all the items called for in the subpoena except one item." He then goes through the items that he did produce on the next page 40, his bank accounts and so forth, of the union. And then through the page 40 and the first part of 41, he is addressing himself to that subject and then all prepared for his failure and we say refusal to produce the membership list. He says on page 41, "I think that sums up the records which are required with respect to the financial status of our organization. The item which I have not produced is the item on membership list of our union. The demand for the production of this item raises a number of profoundly serious issues and so forth." He was interrupted by Mr. Arens, the interrogator who asked, "Are you reading from a prepared statement?" And Mr. Flaxer said, "Yes." "And who prepared it?" "I did." And then, as it's noted on the bottom of that page and the -- the next page, half of it, he makes a legal argument, more or less of a legal argument that he is not permitted by -- I think by the law as he said to produce the membership list to an employer having note that it is a government union, government employees' union that he is head of and he said that the Taft-Hartley Act forbids the production of such -- alleged to such a person, that is the employer. I would like to interpolate, I think he is not correct in that even it would be unlawful or prohibited or an unfair labor practice for him to have been required to produce to an industrial employer in a private industry, the membership lists because it has been held that it is not an unfair practice per se for an employer to inquire of the membership of a union. Or to inquire of an individual member whether he is a -- of an individual employee, whether he is a member of the union, that there have to be certain aggravating circumstances to the mere interrogation in order to encompass an unfair labor practice. So that his -- his premise I think is not a correct one here but we're not concerned too much with that, not at all indeed. And he attempts nevertheless to carry that over into the field of government employment. That is his objection. His objection is not to the make-up of the committee. He made the blanket objection that he was not before a quorum but his real objection is with respect to a privilege that he said he had with respect to delivering over the list of employees. Charles E. Whittaker: And -- do you suggest Mr. Hitz as to the question, exactly the (Inaudible) William Hitz: I do not sir. Hugo L. Black: What do you say about the statement on page 42, with the first full paragraph? William Hitz: Every individual? Hugo L. Black: A request such as the prevalent in the subpoena constitutes the wholesale invasion -- William Hitz: Oh. Hugo L. Black: -- and so forth that it's protected by the Fourth Amendment. What do you mean by that? William Hitz: Well I think he is -- I think there, he is objecting to the production of this particular item under this subpoena. And having that in mind, I -- I would like to revise and correct my answer to Mr. Justice Whittaker. I think to that extent pro tanto, he is objecting on the grounds of the -- perhaps the scope of the subpoena. Charles E. Whittaker: Would that -- William Hitz: I'd -- Charles E. Whittaker: -- prompt you to proceed? William Hitz: Yes. Charles E. Whittaker: (Inaudible) On the return date, he appeared this client and has filed (Inaudible) The Court does give it. After doing so, he denies the motion. The Court says, "You don't have to comply with that. Have to give you 10 days more within which you comply." Now, has the contempt of the subpoena been committed on that determination? William Hitz: Yes, I think so. I think he should come insofar as he's physically able -- he's able to do so. I think he should come prepared to add -- to comply with the subpoena. Charles E. Whittaker: And if he doesn't? William Hitz: And if he doesn't, then he is in contempt because he can't assume in advance either one of the two possibilities in his favor. Number one, he can't assume that the decision of the tribunal is going to be in his favor on his "motion to quash". Number -- Charles E. Whittaker: Can he assume that the Court will give him additional time -- William Hitz: He -- Charles E. Whittaker: -- if he overruled it. William Hitz: He certainly cannot. Charles E. Whittaker: (Inaudible) William Hitz: Well, then he's had -- he's had a -- he's had a ray of sunshine I think brought into his appearance before the tribunal to which he was not entitled and could not expect to see. Charles E. Whittaker: But having gotten that reaffirmed side does not immunize an otherwise possible contempt. William Hitz: No, I think -- Charles E. Whittaker: (Inaudible) William Hitz: I think that -- I think -- Charles E. Whittaker: (Inaudible) William Hitz: I'm sorry. I think his -- his contempt is complete and I think that he would then have certain equities on his side with respect to an endeavor to have the tribunal accept a later compliance as a purge. Charles E. Whittaker: Well, he either come in with objections in -- William Hitz: Correct. He certainly did Your Honor. Charles E. Whittaker: And if the courts passed one at that time, your motion is denied but I'm -- instead of holding you in contempt now, I give you 10 days more. Now, under those circumstances, has it commenced a contempt to be submitted as a matter of law? William Hitz: I think it has but I don't know -- I do not think that the record would disclose a prosecutable contempt. I think because there -- Charles E. Whittaker: (Inaudible) William Hitz: Oh, I -- I think there is because I don't think that in the -- in the -- under the facts that you put to me, that there would be a compliance with the Quinn requirement. In other words, I think that when he made known his objection and when the tribunal inferentially agreed with it to the point of having excused him for preparing for the production of the documents and making himself ready and able to produce them in Washington. That then when the committee doesn't pursue it to the point of, we demand the production of the documents here today but instead says, "All right, we've heard your objection, it was no doubt well meant. You don't have the documents. We realized that. We still want them. We will now permit you instead of complying today, as you can't do, and instead of holding you in contempt today as we can do but won't, we're going to give you 10 more days." They could do that and we would not be able to try that case under the Quinn doctrine. Charles E. Whittaker: Why (Voice Overlap) -- Speaker: Well, why isn't that in this record here? William Hitz: Well it's not the record for the reason that the Court rejected the legal affirmative defense that was sought to be interposed here to the production of the documents. With the -- the tribunal rejected that and after rejection, made a formal demand which completed the contempt in this case. Speaker: (Inaudible) William Hitz: Sorry? William J. Brennan, Jr.: As only been a formal demand was the production when? William Hitz: Well, the formal demand -- only if I could proceed on because I'm about to get right to that point Mr. Justice Brennan. Felix Frankfurter: But before -- William Hitz: Yes, Your Honor. Felix Frankfurter: You go on, I'm sorry I have to hold you up. William Hitz: All right, sir. Felix Frankfurter: The minute that you will go -- you said that the defendant petitioned in this case may have certain equity impression. William Hitz: Yes, sir. Felix Frankfurter: May I suggest this to you Mr. Hitz. What you call (Inaudible) maybe such an ambiguous statement, such an ambiguous expression of the command that the witness may well reasonably will, I suppose that he's given those 10 days and that the act hasn't fallen at the minute when Senator Watkins had issued the -- issued the order, let me say, that is the order now because that to which Justice Brennan has asked, that is the order now but he didn't stand, tap it by means of altruisms on that -- William Hitz: What page are you on -- Felix Frankfurter: And that -- William Hitz: -- Mr. Justice. Felix Frankfurter: Page 9 of your brief. The colloquy between Senator Watkinson and the witness. Speaker: (Inaudible) in the record. Felix Frankfurter: Excuse me, I beg your pardon, I'm sorry. Speaker: The petitioner's brief. Felix Frankfurter: Page 9 and 10. Now, he doesn't stop, that thing didn't stopped there, there some more colloquy and then Senator Watkins says, "That is the order and of course you will have to take whatever steps are necessary if at the end of the term you have not produced them." Now, I assume that's the correct transcription of the record. William Hitz: I -- I don't dispute it. I don't know, I'm sure of it. Felix Frankfurter: Well, I'd say, and I put this to you in order to elicit an answer -- William Hitz: Yes. Felix Frankfurter: -- hypothetically. I'm the last person in the world I think to exact fastidious accuracy of language from members of the Senate or members of the House when engaged in this kind of thing. But if Senator Watkins says was then, "That is the order. You've had ample time to produce these arguments. You come here rejecting our authority or saving our authority. I grant -- take that into a refusal to obey this (Inaudible) And therefore, we shall be compelled and refer the case of the United States Attorney," or some such language. There's some such in the case. Instead of asking since that is the order, you could produce this, give him 10 days more, and he said -- and if -- that at the end of term you have not produce them, we'll then take whatever steps are necessary. Now, I put it and since the statute itself must call for a wilful disobedience, a willful disobedience, is this -- isn't this an ambiguous incident. Isn't the incident ambiguous on the minds of the witness that he may well absorb the situation where if that's the judgment to Mr. Rein earlier that this was an extension of the period within which to comply. And if it is ambiguous, and I take it the case before is not being a willful disobedience. I'd like your comment on that. William Hitz: I would like to make two answers to that. First, the part that you have referred to just now of the record is the final statement on that subject. That is on the subject of attempting to get this material that was made by Senator Watkins. And the actual demand for him to produce, for Mr. Flaxer to produce in answer to the subpoena and upon the rejection of his objection to doing so occurs much -- much colloquy before this and on page 47 so that my first answer to you is that the demand has already been made. The content has been complete. It is then a prosecutable contempt under the requirements of the Quinn case and from then on there is -- Felix Frankfurter: But the Chairman, he might -- the Chairman may change his mind to qualify it or modify it. William Hitz: Oh, I think he probably can. I don't think the part that you've just read Mr. Justice Frankfurter indicates in its full context that the Chairman has changed his mind. I think he is pursuing now an oral argument, I mean, an oral demand as distinguished from the subpoena demand which has already been rejected by the witness and there has been no compliance under it and in fact he was incapable of complying no matter what had been said at the -- at the hearing. Felix Frankfurter: Incapable at the end of 10 days? William Hitz: No. Incapable at the time that he appeared in answer to this -- Felix Frankfurter: I know. But -- but a witness even in contempt proceedings and hearings and you know much more about that than I do, you really give him a notice for (Inaudible) You give him a chance to change his mind and different Chairman and having Senator Watkins some part of it. William Hitz: Well, -- Felix Frankfurter: Will comply to persuade witnesses not to adhere to their accountable position. William Hitz: Oh, yes. But when that's done, the witness is on the stand suffering the possibility of being held in contempt if he does not answer and he is there capable of complying. And that is the reason why this Court in its good wisdom decided the Quinn case and the Watkins case the basis for both of those cases was fundamental fairness which found expression in those words in the Watkins case to a witness who was subjected to the penalties of contempt because to judge the matter adversely to the rulings of the committee would lead him to contempt. In other words, a witness who is capable of producing by way of an answer, this witness here, Mr. Flaxer had rendered himself incapable of producing in New York City before he came to Washington. Felix Frankfurter: Well, but -- William Hitz: And that -- Felix Frankfurter: -- he may have had maneuvering grounds. First, if he had said, if that's in his last -- the last amount that Senator Watkins that the order is, if that is the order and of course we will have to take whatever steps are necessary if at the end of the time you have not produced them. If the witness had conveyed in whatever language however, susceptible or vague or abstraction, that is (Inaudible) if he had said, "Senator, it's no use of giving your -- giving me this order. I stand on the objective nature of the subpoena and I will appear to them 10 days hence. Now that for me would be a contemporaneous rejection of what Senator Watkins commanded for the future. But he then, drawing this note, we give you 10 days and we'll then decide what to do about it. William Hitz: We will give you 10 days now. Felix Frankfurter: Well -- William Hitz: If -- if Your Honor will -- I'm speaking from the record. If Your Honor will -- will bear with me for background material for what Senator Watkins has just been quoted by you to say, and indeed he did say it of course. Let me get to the background of what he said or what he meant, and what had transpired. I wonder if we could take this and the related matters, closely related matters in one long step and proceed back to page 47 which is the demand to comply with the subpoena. And just above the -- now, I would like to go back to page 46. He has been asked to locate in government agencies his Federal Government employees and he has named the Veterans Administration, the Bureau of Engraving and Printing, the Treasury Department and so on. And then he was asked to give more details. Mr. Arens: "What other government agencies and by government, I mean, the United States Government, do you have membership in irrespective of the volume of the membership?" Again, I say I really couldn't tell you. I am on the record here and I would not want to give you a statement that may not be entirely correct. You can give your best judgment. I don't know. You don't have any judgment on that. Well, I don't have the facts on the basis of which I can make a judgment because I guess that's the answer. Mr. Arens: And mind you, this is long after he has stated that he did not bring the material with him or he didn't have it with him. Mr. Arens: "Mr. Chairman, I respectfully ask of the Chairman that the witness be ordered to produce for this record in compliance with the subpoena duces tecum served upon him the record of the United Public Workers showing the names and addresses and so forth." Senator Watkins: "Do you understand the request made of you?" Mr. Flaxer: "Yes, I do." Senator Watkins: "Do you stand on your statement that you refuse to produce those?" Mr. Flaxer: "I didn't say I refused. I indicated the situation as such that I find myself incapable of producing them." And I'm interrupting -- I'm sure he means that he didn't feel he was legally capable of doing it but he was physically unable to, too. I think if I complied with the request of that kind first of all, I don't think I have the right either in terms of our membership or in terms of the labor movement generally. And Mr. Arens: "But you do have the information?" Mr. Flaxer: "In a general sense, I think I have the information." Mr. Arens: "And you have not complied with the command of the subpoena to produce that information?" Mr. Flaxer: "I think that -- I think it is an improper command, sir." Senator Watkins: "That is the reason you have refused to bring them here today." And I'm interpolating from New York. I think the context is clear -- "because you think it is improper?" Mr. Flaxer: "That is the reason I haven't got them." Senator Watkins: "That is the main reason. You are directed by the committee to produce those records according to the terms of the subpoena and there is the demand and the completion we say of the -- Hugo L. Black: Well, he didn't refuse that or he never did actually refuse to doing it. William Hitz: Oh, yes. Hugo L. Black: (Inaudible) careful not to refuse as I read the records. William Hitz: Well, he said I do not refuse. And he said, I mean -- Hugo L. Black: (Voice Overlap) and he argued -- he was arguing with them that they shouldn't make him do it. William Hitz: Yes. He was -- Hugo L. Black: As I read the record, he did not refuse at anytime each time they would -- put those words in his mouth, he was disdained. William Hitz: And each time he would say that he's incapable they would tell him that -- Speaker: He didn't have them. William Hitz: They would tell him that he had to produce and he was -- he was fencing with the committee. I don't think the committee would have to take the -- the advance of this -- the advancement of this objection and the reargument and the reassertion of it time after time so that there's no finality to the proceeding. I think that Senator Watkins was quite patient in hearing the entire objection in the quibbling. I -- I say when Mr. Flaxer said I'm not refusing, I'm just not doing it and finally we have the unequivocal demand by Senator Watkins. William J. Brennan, Jr.: Yes, but what follows Mr. Hitz, is again, they start the colloquy all over again, and he was asked if he was fencing with the committee. Are they not in his record, particularly what follows indicates that he's quite assuming -- believed that he ought not to require to turn them over and never actually refused to. Senator Watkins kept trying to persuade him that the grounds he was taking was erroneous and were wrong and reluctant finally ended up that's the end of it but we'll give you 10 more days. William Hitz: Well, I -- I don't think that -- I think that when someone in this situation does not produce when he says inferentially that he cannot produce on the day because he hasn't prepared the documents that even from that day on it will take him another 5 days to do so that he has failed to produce. William J. Brennan, Jr.: Well, he failed -- William Hitz: And -- William J. Brennan, Jr.: -- to produce and so there's no question about that. William Hitz: Indeed he did do that and -- William J. Brennan, Jr.: He refused to, in a sense -- which in a sense, in that day, I -- just strikes me as though what -- the way the Senator ended up, be it the fact to say, a very patient man. He always was. And he says, ‘Well, now look, we just don't have any merits on the grounds so I think you better go back here in 10 days." William Hitz: Well, I think that my contextual argument here or rather it's a contextual answer to Mr. Justice Frankfurter, I haven't quite complete it because I think between the point where you have asked me this question and the point where Mr. Justice Frankfurter took up the final remark of Senator Watkins there is some intervening colloquy which will indicate clearly the position which we take namely that after there had been the unequivocal refusal, the failure first which was a refusal which was deliberate and intentional therefore a violation of the statute had been completed by an objection being advanced in Senator Watkins making a demand that there was then an oral effort. And I'm going to substantiate what I contend here by pointing out in the statements of Senator Watkins that he used the expression "my demand, the present demand". I am now going to ask you. And we say that that is an oral demand over and apart from and in addition to the contempt that had already been committed under the demand of the subpoena. And -- Felix Frankfurter: (Inaudible) William Hitz: I think that they maybe occurring to Mr. Justice Frankfurter or other members of the Court that particularly in view of Senator Watkins' last statement that if he had indeed produced the material at the end of 10 days, would we have had the contempt case based upon the refusal under the subpoena on the fifth. My answer to that is very likely we would not, because there would have been some bit of futility in doing so and the committee would have had the material. But that would have been for this reason only. It wouldn't have been because there wasn't a contempt on the fifth in answer to the subpoena. It would have been because there had been accepted by the tribunal a purge of that contempt and there is the important part of this aspect of this case. Earl Warren: May I ask you this question then. Assuming that you are correct in your position that this is a contempt as of the return day on the subpoena -- William Hitz: Yes, Your Honor. Earl Warren: -- the time these proceedings were -- were held. And Senator Watkins said just what he said in this record. But suppose he did not wait the 10 days. Suppose he took it to the District Attorney the following day and he was indicted the following day for contempt, could we have sustained -- could we sustain a conviction for contempt? William Hitz: Oh, yes. There's no question about it. Earl Warren: And then -- and what -- what Senator Watkins said about giving him 10 days in which to comply would be of no effect whatsoever so far as -- on bearing on the question of contempt. William Hitz: Not under these facts. And the reason that I say that is two-fold. First, the witness cannot enforce upon the tribunal a purge. A purge that is a later a compliance after a refusal which amounts to a contempt has to be accepted by the tribunal in order to be a purge and that was decided by this Court in the Norris case. That's a partial answer. In addition to that however, the -- I think Your Honor or I think perhaps I should stress again that there has been no misconception given to the witness when he's on the stand by the demeanor of the committee or anything that was said by its chairman which led to the complacency of the witness which might have resulted in his failure to comply. In other words, the situation is not one where there is a refusal to answer and the capability of answering. In other words, there has been no lulling into complacency that the objection has been sustained or that for some reason the tribunal has changed its mind and that witness, this witness Mr. Flaxer, was not capable of complying with this subpoena at the -- on the fifth of October when he was before the committee. And he had rendered himself incapable of it. So that the very equities which caused this Court to decide Quinn and Watkins are not present nor is the danger to Mr. Flaxer at present which this Court remarked upon. This Court remarked upon the danger to the witness Watkins in deciding without enough information something which where it cause him to go to jail for contempt, and that he was entitled under the doctrine of fundamental fairness to be informed. We don't have a Watkins witness here. We have a witness who was not able to change the course of his intent, his refusal at the time that this prior colloquy or anything else was said or could have been said to him in Washington. Felix Frankfurter: Well, then and as to this view, in the suggestion of 10 days is a -- was a -- quite a futile thing for Senator Watkins to do. William Hitz: It so turned out. Felix Frankfurter: No. There's no question that it still turned out. It still turned out but even they had some purpose, they're not saying -- they're not stopping where you said the contempt was complete. William Hitz: Oh, yes, he did. Felix Frankfurter: (Voice Overlap) -- He didn't stop there because he said even at that -- if it's stopped there, if he stopped there then there would be no problem here on this aspect of the case. He didn't stop then for some reason of his own. He then gave him 10 days more presumably. I don't think one could give too much for Senator Watkins presumably because he thought the witness might change his mind and would obey within 10 days. And all I'm putting to you is the weight of the consideration, the question for all the contempt was completed in the -- in the complete statement of the record. It was a kind of an ambulatory performance. He didn't stop there. He went on, and he went on and he finally said well, "Well, we'll give you 10 days and if then you don't have it, ifd then you don't produce, we'll consider what steps we'll take. Therefore, I think -- to me, this is a case where the Chairman did qualify at least left enough with an impression on the witness to infer that he did qualify and gave him the 10 days. And so the question is since the prosecution did -- does turn on the contempt on the fifth, that's correct, isn't it, Mr. Hitz? William Hitz: It is. Felix Frankfurter: In view of the charge and all the rest. William Hitz: It is. Felix Frankfurter: So, that the question here is one of criminal procedure really and making out of case in view of this kind of a record that there was a willful disobedience concluded on that case. William O. Douglas: (Inaudible) William Hitz: If it -- I'm sorry. William O. Douglas: Your arguments in the brief, if that was (Inaudible) William Hitz: That it was resolved by what? William O. Douglas: By the jury where they held -- they found and he did refuse to comply and that goes (Inaudible) William Hitz: Well, I think that's the -- I think that could well be considered the final answer to this question. I'm giving many preliminary ones as I have been asked. I was coming to that and I don't think there's any possible answer to the point that the jury under complete and adequate inspections on this particular point came in with a verdict that he did indeed intend to, under the criminal intent that's involved here, the very simple one of an intentional act did intend to refuse to produce the documents on this day. However, I would like and I'm glad to mention that Mr. Justice Clark because I may have forgotten it although it's adequately in our brief. And of course, we do not need to discuss the importance and the weight which might even be a finality on that point where we have a jury question decided upon proper instruction. William J. Brennan, Jr.: Well, isn't that -- isn't that involve here though that any criminal charge open a motion for judgment of acquittal on the ground, isn't it, which is evident of the presiding jury (Inaudible) William Hitz: Oh, yes. William J. Brennan, Jr.: If denied, a jury can then -- a verdict of guilt (Inaudible) never gone to the jury, now isn't that the problem before us? William Hitz: Well, if this record is considered by the Court, of course to be so insufficient on the matter of -- William O. Douglas: Willfullness. William Hitz: -- of willfulness, of course the matter should not have gone to the jury. William J. Brennan, Jr.: So, that's the fact that the jury came up with the verdict, it doesn't really stated any, does it? William Hitz: Well, I think -- I think it does on these -- on these facts. I would like to make this suggestion. I feel that I have not sufficiently made this clear. The equities that have been advanced by Mr. Justice Frankfurter and others, namely, that it's possible that he might have complied in answer to a 10-day extension of time within which to comply with an oral order. And if he had done so, we would have factual equities which would have affected his completed contempt on the bill. And there is where I think we are confusing this record. I am too. I didn't mean to, and I hope I haven't caused the confusion. But I think there is confusion here with respect to a contempt that was complete because it could not have been corrected no matter what the committee said, did, or met with. And the desire and Mr. Justice Frankfurter said what would be Senator Watkins purpose in giving the 10-day extension, I'm glad to have that opportunity to answer. The purpose he had was the legislative purpose which he had in the beginning namely to obtain this information, and he wanted it. He wanted it more than a prosecution for contempt. And when he didn't get either one, then it was time to look back and find out was there a contempt indeed by this person who was a "contemptuous" witness because he didn't give an answer to the oral demand. He said, "I will think it over." Hugo L. Black: Well suppose -- I don't quite understand how you said so clear maybe that they have been contempt. But how you said so clear, what you have in a situation when a man objects, he did on 35,000 names which we don't know whether they had to cuff him or whether they had to bring him up in his automobile, or how they bring about. He objects on the ground that that's a non -- which conveyed his rights under the Fourth Amendment which may or may not be applicable. The Chairman, as one would (Inaudible) have to do, treated the matter seriously and discussed it with them. They continued to discussed it and the Chairman took the view of it and finally said that, "Well, you can have 10 more days." It's surprising that was not -- not proper proceedings for any court or committee, in connection with an objection generally raised on what is not claimed and out of frivolous terms. William Hitz: Well, I -- your -- I -- I agree with the facts. I disagree with the conclusion. You suggest perhaps that this was a proper procedure. That I agree with. Because Senator Watkins wanted to obtain the information, however, I disagree with the premise of Mr. Justice Black in your question, which is that there was an extension of the original demand. Hugo L. Black: I mean, it was not -- it was frivolous on this. I've known for a certain subpoenas, it required a tough law to bring (Voice Overlap) -- William Hitz: Oh, yes. Hugo L. Black: -- the papers. A man would sometimes raise objection to say, "That's too much. It cost me too much. It's withdrawn and so forth and so forth." And objection could be made on a genuine and sincere basis. Now, I suppose if -- if the thing of this kind had occurred, the man has been asked to bring up that notice, he came up and said that as he did, "I -- I want to discuss the issue is invading, like, he's going further, and you have a right to do." He wouldn't be in contempt because he didn't bring them up before he had a right to discuss that order now, would he? William Hitz: I think not in the truckload situation that you mentioned but we don't have that fact here. Hugo L. Black: I don't know how much this was. I don't know how long it would have taken, how much it would've cost, a copy of 35,000 names. William Hitz: And neither did Mr. Flaxer because he didn't advance that. Hugo L. Black: No -- but he -- he advanced the objection -- the Fourth Amendment objection which is a pretty broad objection. William Hitz: He didn't advance it because it was obstructive to his operations of the union or obstructive to his presence to that the committee that he could not do it physically. Hugo L. Black: It was treated by the Chairman as a -- as a genuine objection as one would expect that Chairman to do. And they had a discussion about it. And why -- why can you say and maybe it's true but why can you say that under those circumstances there is clear contempt already committed. But what he has done is to raise objection. William Hitz: Well, I -- I think -- Hugo L. Black: The failure to say and declining to refuse to bargain but continued to argue with the committee that they shouldn't bring them on -- should require under law when public. William Hitz: Well, our -- our position on that Your Honor is that he was capable of equipping himself in New York where the papers were, the tools were. He was capable of equipping himself to comply in Washington on the fifth. And he didn't have the so-called truckload which has appeared in -- in many legal arguments, a truckload of information which made it too burdensome for him to bring it. He was capable of doing so. And when he made up his mind during the 19 days interim between the service of the subpoena and his appearance here, he then decided upon the course he was going to take that he was going to rely upon this legal argument that the Government employer was not entitled to the employee's names and he came to Washington and he took that chance. And when he advanced it -- Hugo L. Black: Well, he took the chance of making an objection which was perfectly a legitimate objection. It's not frivolous, wasn't it? William Hitz: It borders on the frivolous. Hugo L. Black: You think -- well, of course if its true (Voice Overlap) -- William Hitz: Oh, I think it does. Hugo L. Black: -- and not a game in objection. That that -- I can understand the basis of your argument that you're making on. William Hitz: Well, I -- Hugo L. Black: I don't quite understand it unless (Inaudible) William Hitz: I think he probably made the objection or -- let's say, I will not contest his good faith in making the objection. I hasten to say if the Court well -- is aware by good faith, even good faith instilled by advice of competent counsel is not a defense to the contempt under this statute. But he may have thought that he had a point. But he took the chance if he was capable of producing, he took the chance that one of two things would happen, either that he would have his objection rejected and a demand made with finality. Or, second, that he would be given additional time having been informed that he had his objection rejected. That he'd be given additional time, not an extension, but additional time to comply. And he took that chance and his objection was overruled. He was given time within which to reply an answer nevertheless and he didn't do that. I think that -- but I have not been able -- Earl Warren: Mr. Hitz, may I ask you a very simple -- about a very simple contempt case? Suppose a man was served a subpoena duces tecum and on the return day, he came into court and the judge says, "Have you the documents?" And he said, "No. Your Honor, I haven't been -- I've just been too busy and I haven't been able to get around to it." And the judge is very much provoked, and he says to the man, "Now, you have not acted fairly with this Court. You should have given that time to -- you should have brought those things here." Well, he said, "I just haven't done it." And the Court says to him, "Well now, in spite of the -- your unfairness to the Court, I'm going to order you to bring those in 10 days from today and if you don't, you have to take the legal consequences." Has he committed a contempt on that first day? William Hitz: He has not, Your Honor. Earl Warren: What is the difference between that case and -- William Hitz: There is a failure of the intent to refuse or the intent to disobey which is a refusal. There is a failure of the criminal intent in that case because under your facts, he said that he did not have a time to do it. And we'll assume that he was correct in that. So, he can't -- Earl Warren: No. We don't have to assume he's correct in it. We assume he's -- he was wrong and that the judge felt that he was wrong. The judge says, "You've dealt unfairly with the Court. And -- and you did have a time and you should have had them here. But I'm going to give you 10 days more to do it and if you don't bring them within that time, I -- you have to take the legal consequences." What -- what about that? Where is the difference between that case and this? William Hitz: I don't think there is any. I think that if you put into your question that it's not necessarily a physical incapacity under which he was laboring, that is if he could do it, he could have done it but he came in and he said, "I didn't have time." Earl Warren: Yes. William Hitz: That then becomes a jury question as to whether or not he intended to refuse to produce the documents under the willful intent of this statute and that is submitted to the jury. Earl Warren: And even though the judge said, "I'm going to give you 10 days more in which to produce the documents. And if you don't do it by that time, you have to take the legal consequences," that -- that they could find him guilty of contempt right then and there. William Hitz: I would -- I would even go that far although we don't need to in this case. I think that where he has incapacitated himself from producing that the -- what transpires at the hearing does not affect the intent that he had when he was unable to comply. He's entirely differently situated than the witness who can answer a question. Because when the witness can answer a question, we have the Quinn case and we have the Watkins case if he qualifies for the Watkins ruling. And we have the acts of the Committee Chairman affecting the disposition of that witness with respect to compliance as he stands on the witness -- sits in the witness chair. And if the ambiguous statement or if they offered to purge in the next period of time has given him, then he does not have a conscious choice on the witness stand to refuse to answer or to answer it. He has been misled. He has been given -- he's been lulled into complacency as the case has hold. And it's unfair to him. He has not achieved the criminal contempt necessary for violation and he would not be guilty. If however, he is not on the stand capable of producing and complying such as the case we have here, in that case the statements made by the Chairman to him would not affect his criminal intent, would not affect his ability to comply, it would affect the possibility of a later purge which is not of his doing. Earl Warren: We'll recess now.

Warren E. Burger: We’ll hear arguments so far as we can in Number 28, Sanks against the State of Georgia. Mr. Padnos, you may proceed whenever you’re ready. Michael D. Padnos: Mr. Chief Justice and may it please the Court. The appellants in this case, Your Honors, presented to the Court over a year ago what we thought was a narrow question of due process involving the right to a hearing. When we presented the case to you last time, we argued on the basis of the Snyder case that the deprivation of the property-- of the rental property of our clients was unconstitutional. Since the Snyder case and since we last made that argument, this Court has given further encouragement to our clients and to us on the same issue with the case of Goldberg v. Kelly which is, again, a hearing case involving due process. Our position is very simple that, really, we don’t ask the Court to go any further than the Court went in those cases. Indeed, we take the position that the case before you is much easier to deal with than the cases you dealt with-- than the two cases you dealt with there. Potter Stewart: Mr. Padnos, I hesitate to bring the question up, but I think there is a question of mootness in this case. Certainly, the suggestion of mootness is filed in this case prior to argument and my recollection is that the Court deferred consideration of that motion to the argument of the merits, and I would expect that you’ll be dealing with that, will you, before the end of your argument? Michael D. Padnos: I’ll be happy to begin with that, sir. It might be easier. Potter Stewart: I didn’t want to. Michael D. Padnos: The appellees have suggested to you that there’s a possibility of mootness and they’ve raised two points. First of all, they point out that they believe that our clients may have moved out and, indeed, they are correct. Our clients have moved out. And, secondly, they present the existence of a new statute enacted in Georgia earlier this year. As we indicated in our sup-- in our response to the question, there-- I think there are several reasons why this case is not moot. First of all, the fact is that, as to our clients, the specific clients in this case, Mrs. Sank and Mrs. Momman, even though they’ve moved out they’re still subject to the double rent provisions of 61305. So, there is no way that this Court-- if this Court should hold this case moot, we would not be within the Brockington case and Hall v. Beals that this case-- this Court decided last year. In one of those cases, the Court said that it was impossible to grant the relief that the plaintiff sought that was in Brockington, I believe, where there was a question of a man running for Congress and, in the other case, Hall v. Beals, the Court just talked about the 1968 election and said, “That’s history. It’s all over.” Well, it isn’t history what’s happening to Mrs. Sanks. Mrs. Sanks, as a matter as the same proceeding which is before you right now, will be held, if the landlord does no more than walk into Court in the same judicial proceeding and ask for double damages, will be held liable for double damages for the total amount of rent that he claims to be due. So, Mrs. Sanks-- Potter Stewart: Now, is that entirely clear? Michael D. Padnos: Yes, sir. Potter Stewart: Under the new Georgia legislation? Michael D. Padnos: Yes, sir. Potter Stewart: Because in the chronological history of this case, as I recollect it, the Intermediate Civil Court agreed with you, did it not? And then, went up to the Supreme Court of Georgia and was remanded so that you’ve never had a hearing. Michael D. Padnos: No, we-- Potter Stewart: And up until the Supreme Court, the Courts were deciding in your favor, isn’t that correct? Michael D. Padnos: Well, sir, there’d been-- we’ve been in three Courts. We began in the Civil Court of Fulton County where there was a judicial opinion, and that was in favor of our clients. It then went directly to the Georgia Supreme Court. That was an adverse decision and, now, we’re here. Potter Stewart: It really wasn’t a final judgment, was it? Michael D. Padnos: No, sir, it wasn’t at all. Indeed-- Potter Stewart: And that maybe another fact we ought to consider. Michael D. Padnos: Well, I’ll be happy to address myself to that. Potter Stewart: There was a remand to the Trial Court, wasn’t it? Michael D. Padnos: Well, sir, under Georgia procedures when a trial judge feels that the question is of such importance that the rest of the case continue until a decision is had on the earlier issue, he may put the case forward for appeal right at that moment and that’s what happened in this case and, in Judge William’s opinion which you’ll find in the Appendix, Judge William specifically found that the matter is of such importance that immediate appeal should be had. So, we went as far as the procedures that that Court would permit us to go and we couldn’t file the bond, and that’s why we couldn’t go further in the case. Potter Stewart: Well, the federal question was finally decided. Michael D. Padnos: Well, the federal question-- Speaker: The question you are presenting to us have been finally decided by the Georgia Supreme Court. Michael D. Padnos: By the Georgia Supreme Court, yes, sir. Speaker: We have the question as to the California Supreme Court. Michael D. Padnos: No, that question is not open. All of the issues involving the posting of bond have been closed. The substantive issues have not been litigated, namely, Mrs. Momman’s defense to the eviction and Mrs. Sanks’ defense, but the issues of the bond have all been-- we’ve gone as far as we can go on those. Potter Stewart: And that is the only federal question. Michael D. Padnos: That’s the only federal question. Potter Stewart: That’s been finally decided. Michael D. Padnos: Yes, sir. They may, of course, in-- if the case were to continue, there might be federal questions arising out of the substantive matters and, indeed, I suspect it might but that’s apparently not-- Potter Stewart: But my preliminary question, we got off on a little detour about the final judgment, but my preliminary question was that since there never-- since this was remanded for a hearing, is it entirely clear as a matter of Georgia State law that, under this statute that became effective I think July 1 of this past year-- Michael D. Padnos: Yes, sir. Potter Stewart: That there would-- the soon alleged constitutional affirmatives would attend any new proceedings in this case. Michael D. Padnos: Well now, sir, we’re-- I may have misunderstood you, but I think that the problem is that the new statute became effective as of July 1 and we are asserting no claims and, indeed, that statute, we contend and I think the Court may really have to find that, is utterly irrelevant to these proceedings. The dispossessory warrant that we’re dealing with was taken out prior to July 1, 1970. It was under the old Act, and our contention is that although there is now a new Act, and I’m happy to admit to the Court, as is perfectly obvious, that there are not as many people going to be affected by the Act for which we’re talking about today than would be affected by the new Act, but-- and so, we’re talking about a relatively small group of people. But, we are here today under the old Act. Now, it is-- I certainly submit to the Court and I think I’m being-- I’m accurate in it, it is perfectly clear that our clients and potentially other clients, indeed the clients in the two cases that are now pending before the Federal District Court and the Northern District of Georgia. At least those two groups of people are potentially subject to double damages and, in this piece of litigation, I think that’s important. Indeed, in looking over the argument last time, I found that I may really have misled the Court because I suggested that a second lawsuit might have to be filed in order to collect these damages. I’ve done a little more research and I now can assure you that that isn’t true. All that needs to be done is if you should hold this Court-- this case moot, for example, or if you should decide for the appellee, all that needs to happen in this case is the landlord in both of these cases goes into Court and says “I now want a judgment amounting to double the amount of rent that has been paid during the period of this litigation. Byron R. White: Well, does the new statute specifically save the rights and remedies under the old law? Michael D. Padnos: No, sir. It’s silent on the subject. Byron R. White: Well, how do you know then that the Georgia Court will not say that “now, since the landlord could no longer have double damages, we will not give him double damages. That remedy just isn’t available in the Georgia Courts anymore”? Michael D. Padnos: Well because, sir, I would presume that the remedy derives out of the action as it was filed and not out of subsequent changes of law. Byron R. White: Well, are you sure that’s true in cases of remedy and procedure? Michael D. Padnos: No, sir, I’m not. Warren E. Burger: As a matter fact, isn’t it contrary to the general rule that remedial matters are affected by subsequent legislation? Michael D. Padnos: I’d-- I’m-- I just-- it’s an area of the law that I’m not familiar with. William J. Brennan, Jr.: Well, didn’t you file some answer to suggestion of mootness here? Michael D. Padnos: Yes, sir. William J. Brennan, Jr.: I thought you suggested that the new law was specifically not applicable to pending actions? Michael D. Padnos: Well, it certainly isn’t applicable to pending actions insofar as-- that now, for example, there’s no question of having to post a bond anymore. William J. Brennan, Jr.: Well, does Georgia-- do you know whether Georgia has a general saving statute which saves rights and remedies under repealed laws? Michael D. Padnos: I do not. William J. Brennan, Jr.: Do you have any limitations problem at all in this case? What is your statute of limitations for-- Michael D. Padnos: For civil actions, in general, it’s two years. William J. Brennan, Jr.: The double rent provision. Michael D. Padnos: There’s-- there is no statute of limitations as a part of that-- of the eviction law, the dispossessory law. I take it that the Court is suggesting that they’d-- obviously, that they-- that a lower Court might not grant the double damages which the initial lawsuit permitted. I don’t know how we can know that in fact. Speaker: Is your client living there? Michael D. Padnos: No, sir. Speaker: How long since she left? Michael D. Padnos: Mrs. Momman moved out about a month ago, but she was there until that time. Speaker: What about the other one? Michael D. Padnos: The other lady is rather hard to keep track of. She may have been out for some time, but she’s-- I’m not sure how long she’s been out. She doesn’t have a telephone and doesn’t respond to our communication so I’m not too sure about that. Byron R. White: Well, if the new statute is silent on the matter, on its applicability to pending actions, and if Georgia-- But if Georgia has a general saving provision saving rights and remedies under prior laws, under repealed laws, well you have one answer. But, if it doesn’t have one of those statutes, you have certainly the common law rule which looks in the other direction. Michael D. Padnos: I just didn’t look that up. I obviously should’ve, but I didn’t. As a general rule though, on these eviction cases, I can say that the Courts have held that the fact, for example, that the tenant moves out is not enough to free him from the double damages provision, and that’s what happened here and I would suspect that the Courts would bring that into play if faced with the question that you’ve raised, that is, that that real thing that may have made-- the action that may have made this case moot is the fact that the tenant moved out and, that, the Courts have said is not enough to prevent double damages. Byron R. White: Let’s assume here-- let’s assume for a moment that there was no possibility of the landlord getting double damages against your client. Let’s just assume that. Michael D. Padnos: Yes, sir. Byron R. White: Even though you think it’s contrary to fact. If you assume that, is the case moot? Michael D. Padnos: Yes. I think the case is moot in this sense. Let me just give you this resonation. The case is moot in this sense, a very technical narrow sense that Mrs. Sanks and Mrs. Momman have nothing to stand-- stand to gain or lose nothing by this litigation. In a narrow reading on the concept of mootness, I think the case will be moot. In a broader reading on the concept of mootness, I might point out, as we have in our brief, that you have the Meltzer case on the Court’s docket right now which raises the identical issue. You have Wise and Williams which are the two cases in the ju-- in the Northern District. Byron R. White: Well, it seems to me that if you-- since there’s some doubt about the double damages matter, this might be of some case, an appropriate case, in which there really isn’t a final judgment for purposes of the action in this Court since our jurisdiction would depend on the double damages matter. Michael D. Padnos: Well, sir, I’m not-- in recovering from my surprise in having this issue raised-- Byron R. White: Well, the issue-- you raised it in the-- the state raised the mootness matter and you replied and said this is a statute that doesn’t apply to these actions. I’m just quizzing you about it. Michael D. Padnos: Mr. Justice White, you have thought of an aspect in this case that I never thought of. That’s--that is what my surprise comes from. Warren E. Burger: We’ve all been caught in your posture before now, so don’t let it worry you. William J. Brennan, Jr.: I would suggest to you that Georgia does have a general saving statute. Michael D. Padnos: Meaning, that the remedies continue on, I take it. William J. Brennan, Jr.: I suggest it probably does. William O. Douglas: Wasn’t there in this case a provision in the bond for double damages? There’s a bondsman in this case, isn’t there? Michael D. Padnos: No, there isn’t a bondsman because we never put up the bond in this case. So that-- Warren E. Burger: There would’ve been. Michael D. Padnos: That’s how we got here. It’s by refusing to put up the bond. Well, I’ll just go on because I-- let me just finish why I think it’s-- aside from your point Mr. Justice White, assuming that we’re out of Court on that point, let me just continue with the other arguments. There seem to be three reasons why we still are in Court, unless there’s no saving statute. One is that those ladies are subject to double damages. The second is the question of the whole statutory scheme involved in here, both 303 and 305. Even if there’s a problem with 303 and I think in being honest with the Court, I must say that there is a problem about mootness in this case about 303. That is the posting of the bond. That’s the provision that relates to the posting of the bond, and there’s no way that I can figure out that 303 has any direct consequences on our clients and I think there’s a serious problem with mootness, narrowly seen in this case on 303. The final point I think should be made on mootness is this Court’s often expressed view that when there’s a case that is capable of repetition yet evading review, mootness should not be read narrowly but should be read in a larger sense. And, I think in this case that would be the problem because of the many other cases you have that will deal with the same issue. Indeed, there’s another case in Oregon that’s going to come up. As you may know, there’s a main, I believe we quoted in our brief, a main case on a very similar issue. This really is a case that the Court, I suspect, will be asked to deal with on a number of other occasions. I’m just-- unless the Court has any further question, I’ll close on mootness right there. I see the Court is very troubled by this and by tomorrow, when we finish this argument, I certainly will have an answer for you about the saving statute. With the Court’s permission, I’ll just take a few minutes and talk about the substantive issue. We, in our brief, talked a lot about equal protection. One of the good things about the fact of coming to the Supreme Court is you have a long time to think about your cases and chew them up for a long time. The more I think about the equal protection argument, the less excited I am by it, and the more I think about the due process argument, the more excited I am by it. I come here today not asking you to decide this case on equal protection grounds. I think, in many dissents before this Court and in many majority opinions of this Court, misgivings have been expressed about equal protection which suggest that equal protection is the doctrine that ought to be carefully dealt with, I think, and I don’t think we need to ask the Court to go as far as equal protection with its notions of compelling state interest and its notions of more complicated adjudication of constitutional issues. We’re talking about a very narrow little question, and that is the right to get into Court and where, it seems to me, we’re right within Snyder and we’re right within Goldberg. Let me finish today’s presentation by suggesting just two ways in which I think we’re even a narrow-- we present a narrower question to you than was presented in Snyder and Goldberg. In the Snyder case, for example, there’s no finding of indigency. Indeed, there’s a specific question raised as to whether Mrs. Snyder is indigent. We’re indigent. It’s clear in the record that we have a finding of indigency. So, you’re dealing with more-- an easier problem from that sense. Finally-- And, secondly, in both Snyder and Goldberg, the deprivation that’s talked about is only a temporary deprivation of the use of property and that was pointed out in, I believe, a dissent in that case very clearly that the use of the property is what was involved. In our case, once they’re out, they’re out. That’s it. That’s a final deprivation of the property. In that case too-- our case is-- for that reason-- William O. Douglas: But you said she moved. Michael D. Padnos: Excuse me, sir? William O. Douglas: I thought you said she left it voluntarily? Michael D. Padnos: Yes, sir. What I’m talking about is the general statutory scheme and comparing it to Snyder where somebody is only deprived of the use of his wages but where an eviction is carried out in Georgia, it is a final eviction. There’s no way to get back. I’m suggesting that this is a more severe punishment than the Court faced in Snyder. William O. Douglas: Well, are you suggesting that she’s been subjected to punishment? Michael D. Padnos: No, sir, not in this case. William O. Douglas: Not yet subjected. She lived-- Michael D. Padnos: She did. William O. Douglas: Later more. Michael D. Padnos: She did. William O. Douglas: And left. Michael D. Padnos: She did. It’s also-- there’s a very interesting discussion in the Goldberg case about the consequences of welfare and why welfare is a right, and one of the points the Court makes in that case is that welfare guards against societal molest and that it really is a useful thing. It helps the pursuit of happiness to have welfare. I might say that, it seems to me again, that we’re an easier case here because not only does staying in your house guards against societal molest, but the kind of evictions which are carried forth really provokes societal molest. One of the things-- Potter Stewart: You said that at least three times. I haven’t understood it. Michael D. Padnos: Well, sir, I take it that it means-- Potter Stewart: Not what it means, I didn’t even hear it. Michael D. Padnos: Societal molest is a phrase that the-- Potter Stewart: Ah, societal molest. Michael D. Padnos: The Court uses in the Goldberg case and it says “we want to guard against that.” What I think happens in eviction cases is people get put out on the street, instead of, as in welfare cases as sort of administrative determination being made in some downtown office. In eviction cases, people are put right out on the street in poor neighborhoods. That, I think, is a major creator of societal molest. Those are the distinctions that I think exists or the reasons I think this case is easier than the Goldberg and the Snyder cases, and I will rest. Warren E. Burger: We talked about the laceration of your argument. You’ve been very helpful with your candor and I’m sure you’ll be more helpful tomorrow, Mr. Padnos. Michael D. Padnos: Thank you very much. Warren E. Burger: Thank you. Speaker: The honorable Court is adjourned until tomorrow at 10 o'clock.

Earl Warren: Number 16, William L. Austin, petitioner versus Kentucky. Mr. Fleishman. Stanley Fleishman: Mr. Chief Justice, members of the Court. Almost three years to the date, a private citizen, a Mrs. Catherine Wolfen, walked into the Read More Bookstore in Paducah, Kentucky and ordered three books, two magazines rather. She ordered four and she purchased two magazines the required title. She then marched over to the McCracken County Court House and swore out a complaint in statutory language. He said that Mr. Austin, the owner of the store, had violated the Kentucky Obscenity Law. The basis of her charge was that purchase by her and her reading of the magazines in her conclusion based on no judicial standards that the magazines were in fact obscene. The statute involved provides that any person who sells an obscene book or magazine, knowing the contents or character is guilty of an offense. The statute also provides that any person who sells a publication found by the jury to be obscene is presumed to know the obscene character of the work. Now the evidence against Mr. Austin is very simple. Mr. Austin stipulated that he was the owner and operator of the bookstore. Mrs. Wolfen testified that she had called up a friend of hers and said, “I'm going to make a buy at Read More come on down and be witness.” And she made a buy. She stated that the magazines were in a rack behind the cash register and she's testified that they were in this rack behind the cash register because a ministerial association had asked Mr. Austin to take them out of reach of minors. And so, Mr. Austin to accommodate himself to this request took them and put them behind the cash register, where only a person who ordered the magazines by title could get them and where no minors could get. The only other evidence in the case is the testimony of Reverend Simpson, a member of the Citizens for Decent Literature and the head of the Moral and Social Welfare Committee of the Paducah Ministerial Association. He testified that he had asked Mr. Austin to come down to a meeting that the ministers had to discuss objectionable material. At that time Mr. Austin told the ministers, that if they had any specific publications they thought were obscene to tell him and he would remove them. And the ministers in effect said, “Get rid of all of them.” That's the sum in substance of what they say. Potter Stewart: But the ministers want to get rid -- Stanley Fleishman: Get them -- get rid of all. Potter Stewart: -- of all the magazines? Stanley Fleishman: No magazines are contained any nudes at least. That was the short of it and that's what the state recognized in their argument, if Your Honor please. In their final argument to the jury, they pointed out that in effect the ministers told them to get rid of Playboy now and forever. Not just Playboy May but Playboy so that there won't be any doubt about it and the language is clear. This is the argument of the prosecutor to the jury. They're talking about Mrs.Wolfen as the censor. I'm talking on page 86 of the record. In the first place, I don't hold Mrs. Catherine Wolfen out as the censor of McCracken County. She is not. Neither of the ministers the censors of the McCracken County and they have got no obligation to any person to go out and censor the material as on the stands in Paducah. They recognized that fact. That's a dangerous situation but what did they do? They had a meeting, two meetings, as I recall the testimony. Potter Stewart: With the prosecutor? Stanley Fleishman: With the prosecutor. Yes, Your Honor. The last one in May of 1963, and the objection on the part of the ministers was all of the material that he called adult reading. They objected to it, all of it. There weren't going to specify this issue, that issue or some other issue. They told him that they objected to all of it if they should, why if they have told him they object to the May issue of Playboy magazine. All they would have to do is put on the June. That's what we have. This is the evidence and all of the evidence upon which petitioner was convicted. Now at the trial, the petitioner sought to show that he had a good faith belief that the magazines were not obscene. He tried to show it in a variety of ways. First, he tried to show that he tried to limit himself only to those magazines which had second class mailing privileges from the Post Office Department. A magazine that has second class mailing privileges is presumed to be not obscene because the Post Office Department has no right to issue second class mailing privileges to obscene publications. He tried to show that he couldn't possibly read the 11 or 12,000 magazines that were in his store at all times. He tried to show that for years he had been distributing exactly the same type of magazine over a four-state area, Tennessee, Kentucky, Missouri and Illinois. He tried to show that this Court had found nudist magazines far more revealing than the two magazines involved. But this Court have them to be not obscene and he tried to show that in the Paducah Library, there were books containing portrayals of nudes which were in every respect as frank and as candid as those in the magazines involved here. All of these were totally excluded by the trial court and consistent with the rulings or with these rulings of the trial court. The judge refused to give an instruction requested by the petitioner that if the jury found that he had a good faith belief that the magazines were not obscene, the jury should acquit. It's indicated the jury found the defendant guilty and the Court of Appeals refused to grant a motion to appeal with the Chief Justice dissenting. So the first question we have here is the one left open in Smith against California is a good faith belief on the part of the petitioner that the books he handles himself are not obscene, a defense to a obscenity prosecution. Now, we touch -- it was touch upon in the last page but it does repetition, that there are two important considerations involved in the Smith rule. The first one is that obscenity is defined by this Court is extraordinarily vague. And if a bookseller faced with a very vague law can be held criminally liable when he believes that the publication is in all respect lawful. He either goes out of the business or he goes into a business where the risk is higher than in any other lawful business. And we're talking about bookstores where ordinarily we want to give maximum and not minimum protection. The other alternative to going out of the business is to handle only cook books and even those aren't so safe because there are so aphrodisiac books on eating. Now, the respondent here advances three reasons for denying to the petitioner the right to defend on the ground that he had a good faith belief that the magazines in questions were not obscene and in justifying the trial court's refusal to grant the requested instruction. First of all, the respondent says that the evidence against petitioner is so conclusive, so overwhelming that nobody knowing the facts that petitioner knew could have -- could have a good faith belief that they were not obscene. Now what is this overwhelming evidence? The overwhelming evidence is that the petitioner may have no one that he had in his store magazines which contain portrayals of nudes, that's all and this in the face of untold holdings by this Court and other courts that nudity is not synonymous with obscenity. The second reason given by the respondent is that petitioner couldn't ask and expect to get the instruction on good faith belief because he said, he never read the books, the magazines in the first instance and so, the respondent argues. How can he have a good faith belief that the magazines are not obscene without looking at them? Respondent argues that before a petitioner, before a bookseller may claim the right to a good -- to the defense of good faith belief that the material is not obscene. He will have to take the stand and in effect incriminate himself. That is to say the prosecutor wants him to get him on the stand and say, “I read the book so magazines.” And then from that they'll say uh-huh, he read the books and magazines and that's proof enough. And then the prosecutor respondent finally says that the instruction shouldn't have been given because of Rosen against United States. And that Rosen against United States indeed means that the good faith belief on the part of the bookseller that the material he sells is not obscene is irrelevant. With all due respect, we suggest that the Rosen case should not be controlling here. First of all, Rosen was decided, it's almost 70 years now, at that time when there were no First Amendment considerations involved or implicated. Hugo L. Black: It's a federal case. Stanley Fleishman: That was a federal case, Your Honor. Yes. Hugo L. Black: How do you say that there was (Inaudible)? Stanley Fleishman: Well, none were raised and none were discussed. The entire case was treated as if the First Amendment had no application. I think it might have been argued and discussed in a different fashion but as it was handled. It was no First Amendment considerations were brought to play nor considered in the case. Secondly, Rosen of course was decided the time when Hicklin controls. Now, a determination of obscenity under Hicklin is quite different from a determination of obscenity under Roth, Alberts as expanded by the various cases of this Court. Under Hicklin everything was intuitive. There were no outside considerations if person look at something that he didn't like it or he thought it might offend the most susceptible person that was it. And the fact is that at the present time it is simply irrational to assume or as previously been discussed that a person who reads the book or reads the magazine knows merely from the reading that the publication offends the obscenity law. That is to say that from reading it one would know that it goes beyond customary limits of candor, appeals to prurient interest, and is utterly without redeeming social importance. Mr. Justice Stewart pointed out earlier, if members of this Court have good faith and honest disagreement among their selves with regard to whether a particular book is or is not obscene. Surely that in itself proves that there is room at least for honest difference of opinion with regard to persons who look at the material and reach contrary completions. As indicated, the Kentucky revised statutes provides in 43600 subdivision 4 that the sale of a publication found by a jury to be obscene is presumed to that the seller is presumed to know that it was obscene. Hugo L. Black: (Inaudible) Stanley Fleishman: Statute? Hugo L. Black: (Inaudible) Stanley Fleishman: Thats the mere sale, the mere sale without knowing the contents of the publication that is to say in this case, merely because the two magazines were sold that brought the presumption into being and under the statute. He was presumed to know of the obscene character of the work. Now in the face of this presumption, the petitioner sought to adduce evidence to negate it. He certainly was putting on evidence which was relevant to his good faith. It is, Justice Harlan, indicated in the Smith case, a defendant has the right to put on evidence showing that a work doesn't go beyond customary limits of candor on the issue of obscenity. Then he has a light right, we respectfully submit to put on evidence to show that the hidden belief the material is obscene which is what he sought to do in all of which was totally excluded so that on that constitutional issue of scienter. There was a totally exclusion of evidence. I should point out as we have in our reply brief that after the case here and effective June of this year, Kentucky repealed the statute and amended and enacted a new law and specifically found or in these new statutes, specifically sets the standard as knowledge of obscenity. That is to say under the law in Kentucky as it is exists today, a person who sells a publication found to be obscene must -- the prosecution must prove beyond the reasonable doubt that he had knowledge that the work was obscene and the statute as it now exists has eliminated the presumption which was working against the petitioner in the case at the time that he went to trial and at the time that he was convicted. Hugo L. Black: Well, all this included evidence on the (Inaudible)? Stanley Fleishman: I think not, Your Honor. I believe that the excluded evidence was offered on both issues because for the most thought it bore on both the issue of whether the publications were obscene and also bore on whether he had a good faith belief that it was not obscene. There was some evidence however which would have been directed solely at his good faith belief that it was not obscene. That was the evidence where he sought to show that he could not possibly have examined the 11,000 or 12,000 publications that he had in his bookstore at all time. That was excluded and I assume that was directed solely to the question of scienter. But the other evidence, the broad sale of Playboy magazine, Rouge magazine, and others which the petitioner said were all about the same as the two magazines involved his evidence with regard to the second class mailing privileges enjoyed by these magazines would have gone to both of the issues. Potter Stewart: Now, what sentence did this man get from that? Stanley Fleishman: He received a sentence of $250.00. Potter Stewart: No jail sentence? Stanley Fleishman: There was no jail sentence in this case, Your Honor. Now, there is -- I think a consideration here that Your Honors ought to give weight to. In the case of Bantam Books against Sullivan, this Court was very anxious to see that a bookseller or a distributor not suppressed books when those who were operating were doing so outside of a judicial framework and not consistent with -- not consistent with legal standards. And so it was that the Rhode Island Commission on Morality which was sending out notices not to distribute this or not to distribute that was found to be offending the Constitution and the effect of these notices was seen and recognized in the Court when the distributor in Rhode Island sees distributing each and every one of the books and magazines and there were 106 of them which the Rhode Island Commission condemned. This Court was pointed out that in this fashion -- in this fashion much material which was constitutionally protected was being suppressed. Now turning to this case -- Hugo L. Black: (Inaudible) Stanley Fleishman: Mr. Austin was faced with a problem. There was a psychological warfare going on Paducah, Kentucky three years ago. Mrs. Wolfen was coming down to the bookstore and making purchases regularly, twice before this faithful day. She had made other purchases of magazines, twice. Mr. Austin was called before this ministerial association. Now he had a choice to make. He either could say, I vow and I take everything out of my newsstand or he should say, as I understood this Court was encouraging distributors to say in the Bantam Books case, there shouldn't be suppression of material which is not obscene. He made his judgment that these magazines were not obscene in law. He tried as a businessman to accommodate himself to the pressures that were put. But if he has denied the protection of the law under this circumstance and he can be branded a criminal because he didn't vow totally to the pressures that were put, then we will have more suppression, far more suppression than was have put Bantam Books against Sullivan. And I will say that if Mr. Austin is a criminal for having had sold and he didn't do the selling, it was his clerk. If he is a criminal because they were sold in his bookstore, these two magazines which are no different from any number of magazines which are circulating throughout the country today and continuously, then every bookseller and every wholesaler in the United States of America is today a criminal. And I do not believe that the law can be such that we either disregard all this criminality or that we end up with the kind of suppression that is inherent in this conviction. The only way, we respectfully submit, that the bookseller can have any confidence in carrying out his business in a lawful way is to receive the kind of legal protection that was promised in Smith and the promised has not been fulfilled. At least in Smith, the thought was apart in around that a bookseller who had a good faith belief that what he was doing was lawful could not be made a criminal. We are aware of course of the problems that are always pointed to in terms of, if the prosecution must prove beyond the reasonable doubt that the defendant knew that the work was obscene that there would not be many convictions. Nor should that be. The number of convictions that are coming out in the United States of America today for selling books is astounding. Hugo L. Black: (Inaudible) Stanley Fleishman: I have not collected them. I have received however a report from the Citizens for Decent Literature that it seems to have collected them and they run into the many hundreds, many hundreds -- Potter Stewart: Annually? Stanley Fleishman: Annually. Yes. Its fright -- it's really frightening what is going on with regard to these new standards that have been coming out in this field of obscenity. But the problem is not really even to have to tolerate material with society has a legitimate right to suppress. There are other weapons available. We are familiar with the fact that there are in rem proceedings where material which is thought to be obscene can be suppress without criminalizing an innocent man for selling it. And while this is a great evil to have this kind of prior restraint as Mr. Justice Black indicated in the Ginzburg case, it's less of an evil than sending man to jail for 25 years or 10 years or 5 years. I reserve the rest of my time Your Honor. Byron R. White: Do you want to say -- Stanley Fleishman: Yes. Byron R. White: How do you feel that (Inaudible)? Stanley Fleishman: Under the limited -- Byron R. White: (Inaudible) Stanley Fleishman: Under the limited grant of certiorari, I think we have to assume that it's obscene, although, I'll tell you quite frankly that they are not obscene the magazines. They are simply are not but -- Byron R. White: Suppose that (Inaudible) do you think whether if he tries to (Inaudible)? Stanley Fleishman: It has a bearing of course, I believe that there are some materials which would be so very powerful that he denied by a person who read it that he thought it was not obscene would not be given great way. On the contrary, -- Byron R. White: (Inaudible) Stanley Fleishman: You take a Playboy Magazine and if he says, I really think Playboy is not obscene. I've been fine to think that we'd all agree with him at the -- Byron R. White: (Inaudible) Stanley Fleishman: In this case, I don't believe so. I think that there are answers sufficient in our case but in any case surely to go the scienter. You have to know what's involved. I think our case because we really raise questions of instructions for the most part. We're in a position to get a ruling to here because what if we have ask for an instruction of the Court saying that, if you find that the defendant had a good faith belief that it was not was obscene then acquit. We believe we're entitled to that instruction in any case no matter how rough the material may be, the defendant should always have that instruction. The jury may not think much of his defense but he ought to be -- have that defense available to him. I reserve the rest of time, Your Honor. Earl Warren: Mr. Browning. John B. Browning: Mr. Chief Justice, may it please the Court. The Kentucky statute prohibiting the sale of obscene literature as an old one originally acted -- enacted in its present form in 1894. But without any express requirement of scienter until the year 1962 which time the Kentucky legislature amended it to specifically require proof that the defendant had knowledge of the contents or character of the material which he sold. That Kentucky statute with the scienter requirement placed in it in 1962 has been construed by the Kentucky courts and the authoritative construction placed on it by the Kentucky courts must be considered to be the instructions given to the jury by the McCracken Circuit Court. Sends on appeal to the Kentucky Court of Appeals, the conviction of petitioner was affirmed and there was no opinion. There are highest appellate courts simply stating that, we find no error in the case. Therefore, if we are concerned with instruction given the Kentucky statute by the Court of Kentucky, we must go to the principle instruction given to the jury and the McCracken Circuit Court. Now, that principle instruction, number one, is that the jury must believe from the evidence in this case beyond the reasonable doubt that the defendant as the owner and an operator of Read More newsstand did on the 28th day of September 1963. At said place of business knowingly have for sale these two magazines and further that the defendant had knowledge of the contents and the character of the magazines. I submit to you that this statute in Kentucky as construed by the Kentucky courts and this principle instruction to the jury below required first that it be found by the jury from the evidence beyond a reasonable doubt that the defendant knew the magazines, these two magazines were for sale at his store. And secondly, that he knew the contents of the magazines. And thirdly, that he knew the character in the magazine. Potter Stewart: It was said, contents or character? John B. Browning: Mr. -- but for Mr. Justice Stewart, the statute provides that it is required to be proved that he had knowledge of the contents or character. Potter Stewart: Yes. John B. Browning: I am speaking of the construction authoritatively placed on a Kentucky statute by the Kentucky courts. Potter Stewart: But where are you in the record? Where is this page? John B. Browning: I am on page 109 in the record and I am referring to the principle instruction given to the jury in the McCracken Circuit Court. Potter Stewart: Was there an instruction given to the jury on presumption that was in the Kentucky -- John B. Browning: There was none whatsoever. In this entire record, there is not one reference of any sort to a statutory presumption it was never used, it was never involved in this case. The jury was not instructed concerning any presumption, counsel did not say a word about it in the argument of the jury. It is not brought out or mentioned anywhere in this record. All that you can say is that you have in the statute. It was not involved, construed or applied in this case. And I submit while we are on that point and under the authority of United States versus Raines. This Court cannot consider the constitutionality of the statute in a vacuum where it has not application to the case at hand. Mr. Justice Stewart have you found the instruction -- Potter Stewart: I have. John B. Browning: -- which i refer. You will note -- Potter Stewart: The contents and the character of said magazines. John B. Browning: That's right. Potter Stewart: Now what do you suppose the -- what do you understand by the meaning of character? It's something different from contents of? John B. Browning: I understood character for mean the obscene character of the material. This is my understanding. I was under the impression that this Court previously had required only knowledge of the contents, if this was sufficient on scienter. If according to Michigan, I am mistaken in that conclusion that my personal conclusion. I am arguing here or not what I conceive the Court is free these opinions to be. But what the lower court in this case actually gave which was more than I thought it was necessary. Namely, that they must find that he knew the magazine where at his store that he knew the contents and further, thirdly that he knew the character of the magazines. I construe character, personally to mean knowledge of the obscene character. Abe Fortas: That part it didn't -- John B. Browning: But what -- Abe Fortas: -- it doesn't say that, does it? John B. Browning: It does not. But I was asked the question, what do I didn't think about it? Abe Fortas: Now, as compared with what follows in the instruction. I didn't say the jury might have found -- might have thought that Mr. Austin thought that these were purely magazines and that so far would be a defined as to character of the magazines. But that's quite different from the instructions with the effects of the theory of the jury itself. Because the jury itself in the next succeeding phrase was defining that the magazines or either of them are obscene and of an indecent character. John B. Browning: Of an obscene or indecent character? Abe Fortas: That's the jury which the jury defined. The jury -- John B. Browning: Yes. Abe Fortas: -- has that to ask what then follow if they so understood the instruction to -- for them to ascertain from the knowledge of the character of magazine? John B. Browning: Well, I would still say that it looks like it could be the obscene or indecent character. Perhaps, I simply don't understand the question. I'm pointing out the instruction here as the authoritative construction given the Kentucky statute by the Kentucky courts and I believe, I'm arguing that this construction meant with the Kentucky statute satisfied Smith versus California and that it required all of these points on the issue of scienter. I will proceed then to argue that the Commonwealth's evidence in chief made this case and authorize submission of this to the jury. And it was certainly not submitted on any statutory presumption but the Commonwealth's evidence in chief made the cases as far as scienter was concerned. It was shown that just a few months prior to the particular sale in question. The petitioner met with several ministers representing the Committee on Moral and Social Welfare of the Paducah Ministerial Association. They talked to him about obscenity in general and in particular about this particular class of magazines known as girlie magazines. They made known to him specifically complains which the ministers had been receiving from the public in general concerning the sale of these magazines. And they discussed their obscene content in general with him. As a consequence of this, he went back to his store and personally collected and segregated 25 to 30 titles of girlie magazines and put him on the rack behind the cashier's counter and he stapled them to prevent them from being leak through. He put them back there expressly because he considered them to be adult reading only and he knew thereby that they had a prurient interest appeal. This was sufficient to show that he knew or should have known the contents of the magazine. Now what about this so-called defense of honest belief that there were not obscene? We contend that that defense was actually was not raised in this case. He was not entitled to any instructions. I refer the Court concerning Kentucky procedure on instructing juries in criminal cases to Stanley's authoritative three-volume work on Kentucky instructions to juries' volume 3 Section 771 pages 15 through 18. The subject to that Section is special affirmative defenses. Now, I have stated there that it is a matter of Kentucky law if the negative of the principle instructions to the jury sufficiently covers what the defendant is raising then he is not entitled to a separate instruction. The time when he is entitled to an affirmative special defense is when he pleads at -- he pleads by nature of confessions and avoidance. In other words he says, I will admit to the many of the things that you charge with me but I will avoid the application of the penalty on a separate defense which I am raising here. This was not a confession and avoidance case. The defendant here did not testify that of course I knew these magazines were there. I -- I was familiar with them but I did not believe that they were obscene. He testified that as to one magazine he had no knowledge of the existence of such a publication. He never heard of it, never knew of it. How can a person in that situation say that I never knew of the existence of it and yet, I have formed a reasonable belief that it was not obscene? He could not have, he did not say so. At no time during his trial that he say that he had formed a reasonable belief that they were not obscene. His counsel in arguing the case for the jury, there we should find the counsel harping away on the idea that this man reasonably believe and had a good faith believe that -- belief that these magazines were not obscene. Counsel said only on page 82 of the record. He said only this, “here isn't a word of proof in this case.” Mr. Austin knew that these two magazines were down there. So let -- let's face it, what was his defense in this case. Simply that he did not know the magazines were there. There with it -- Potter Stewart: Its pretty clear that the instructions to the jury were erroneous, isn't it? John B. Browning: No, sir. I -- I don't agree with that. Potter Stewart: Well, he doesn't say a word about the necessity of a material being not only without regaining social importance. John B. Browning: I -- I think that the concept of -- in the concept of obscenity it is implicit that the material is without regaining social importance. Potter Stewart: Or it doesn't say a word about that with the jury, does it, as a necessity of what the jury has to find in order to find the people? The jury was obscene -- Byron R. White: (Inaudible) John B. Browning: This is my understanding -- Potter Stewart: No, I'm just asking about it. Isn't it very clear that the instructions to the jury are erroneous? John B. Browning: I -- I certainly don't concede that they are erroneous. No, sir. I believe to find -- Potter Stewart: Well, it did say a word about the -- is there a word about the necessity of the material being utterly lacking any redeeming social value? John B. Browning: I cannot recall but I heard review of the instructions again that this is in -- Potter Stewart: I'm going over very slowly and deliberately. I can't find anything. John B. Browning: Alright sir, I'll agree with you in it. Potter Stewart: But not in instructions? John B. Browning: If not in the instructions. But I don't concede that that makes the instructions totally erroneous. Potter Stewart: But no, just erroneous. John B. Browning: I don't concede that it makes the instructions erroneous, I disagree with you there. But I did not believe that certiorari being limited here embrace the questions of the propriety of instructions to the jury. Potter Stewart: What's the -- is it constitutional question in constitutional case? John B. Browning: But the instructions in other facets here were sufficient to indicate that this material must be without redeeming self importance. Potter Stewart: What? John B. Browning: Let's say the instructions taken in the whole imply that that if all these factors were believed to be true about the magazines they must be without reading themselves. Potter Stewart: I know it's important. I just can't find that here -- the only instructions that are on page 109 to 111? John B. Browning: That's correct. Potter Stewart: Thank you. John B. Browning: The defense here, as I will take the trouble to repeat was certainly not that he has a reasonable belief the magazines were obscene. The defense is very simply. He did not know that they were there. If we believe that it is perfectly true that he didn't know it and certainly should have known it. The particular class of magazines were complained to him. His attention was pointed out that to him. His attention was called to them. He personally collected 25 or 30 of them he knew what it seems a category of girlie magazines whose sales should be limited to adult and he put them on this counter and rack behind the cashier's counter. And if he says that he didn't know they were there. He should have known. There is no reason why it could not have taken the trouble to scan the small group magazines. To see for himself what was in them and to select from among them those which he thought could be sold and which cannot be sold. Then -- Speaker: Is there any (Inaudible)? John B. Browning: Mr. Justice Harlan, there is evidence of course that he was a wholesale news distributor and that he first got the books as a wholesaler and then that he distributed them to his Read More News retail stand. Speaker: (Inaudible) John B. Browning: That's right he supplied the books to himself in this case. And as far as being able to keep the books out of his retail stores since he was supplying the books to himself possibly could have done that. He cannot have display them for retail sale. Speaker: How long the operation began? John B. Browning: He says that the in his Read More News Story, he handled approximately 11,000 titles a month, 4,000 paperback books paying there titles, 4,000 hardbound books, and 3,000 magazines. Speaker: Never before in most cases (Inaudible)? John B. Browning: In his wholesale nude distributorship. He had five different locations. Here in the City of Paducah, he had only one retail new store and the magazines of course were purchased at this Paducah retail newsstand. The magazines on which the prosecution was based. I think he said at his Read More newsstand handle 11,000 titles each month. This is an impressive figure and he says that it tried to say that as a conclusion which could not be called for at which humanly impossible for anybody to read what was in those 11,000 titles and we submit that he didn't have to read everything in his store. All in the world he had to do was to take the trouble to scan briefly the 25 or so magazines that he himself had put behind the cash register. We're not suggesting that he read 11,000 titles and it wasn't necessary to do so in this case. Speaker: The only reason that I asked the question, I wanted to just go and make that 11,000 titles a month, to have other location. John B. Browning: I think this is what his testimony was. I thought myself with that was quite an excessive number but that appears in the record as his statement. He was asked, “How many – tell how many volumes or how many different magazines in a month you have at Read More, this Read More stand you're state intact. Byron R. White: (Inaudible) John B. Browning: I am reading from page 30. He was asked, “Tell us how many volumes or how many different magazines in one month you handle at Read More. This is just at Read More stand.” Answer, “You're speaking of titles Mr. Williams?” “Yes, sir. Titles.” Well, it buries, I would say there is 3,000 titles on sale at all time of magazines and approximately 4,000 titles of hard books, and 4,000 titles of paperback books in all about 11,000 I would say. 11,000 titles that is one Read More retail newsstand a month Byron R. White: Read More -- (Inaudible) John B. Browning: I will if I had time. I see that I will do so. Yes, sir. He first tried to introduce these trial six Paperback books, Lady Chatterley's Lover and others. These matters were not introduced at all to show scienter. They were introduced as tending to show contemporary community standards. The six Paperback books, he never testified that he had read these books or was even familiar with them in anyways. So how could they have born on scienter? He offer to introduce items from the Paducah Public Library taken from museum of modern art productions taken from a book on Greg Sculpture and taken from U.S. camera annual issue photographic magazine. Once again, he did not testify that because these things showing nude form when a Paducah Public Library. I reasonably believe that these two magazines were not appeal. He didn't say that at all. They were introduced to show that the betrayal of the nude form could be found in books certainly regarded as acceptable in the Paducah Public Library, but it did not bear on scienter. Hugo L. Black: Now, the other question is(Inaudible)? John B. Browning: On the question, whether the books are obscene or not? Hugo L. Black: Did he offer -- do you offer (Inaudible) John B. Browning: It -- well I would say, I don't think he offered it on scienter at all. I think it was offered entirely on the community -- contemporary community standards. They were not comparable in material in any sense. They were -- they were certainly far different from these magazines here. They -- it should not have been offered an evidence. It was irrelevant -- Potter Stewart: So it was not for the jury to determine? John B. Browning: No, it's for the judge to determine whether the evidence is admissible or not. Potter Stewart: That's the whole point that would said that for which he was offering him for the jury to determine whether or not they were comparable. Am I mistaken? Hugo L. Black: The judge wouldn't let any evidence of being established at all. John B. Browning: Well, I'm just arguing that the judge was correct in his ruling because comparable materials should at least be similar in content and style and form to what is in issue. We have two magazines on trial here. Hugo L. Black: This is where (Inaudible). John B. Browning: But it should not be admitted, I submit to this Court. If it's not comparable in any sense in content or style or form to what's on trial. Why bring in material that doesn't conform if not similar to what he is being prosecuted for and try to say, look here, the public biases been accepted. Earl Warren: We'll recess now Mr. --

Warren E. Burger: We will hear arguments first this morning in City of Port Arthur against United States and others. Mr. Keith. Robert Q. Keith: Mr. Chief Justice and may it please the Court: The expanded city of Port Arthur, Texas, constitutes a black population that amounts to 35 percent of the voting age population. This expansion occurred through a popular election and consolidation with two adjoining suburban cities and the subsequent annexation of an unincorporated area to the east of Port Arthur. Because of the expansion, the black population in the city by 1980 census standards changed from a 45 percent black total population to a 40 percent black total population. The case was tried to the three-judge district court in the District of Columbia on an election plan that is not before the Court. It was tried on what we know in this record as a 4-4-1 election plan. The city was divided into four single-member districts of equal size and a representative was to be elected from each of those districts. Then there was an at-large representative to be elected from each of those four districts. So there were four single-member representatives and four at-large representatives. We tried the case. The court approved the expansion of the boundaries as being objectively verifiable, legitimate in purpose. We lost the case on the question of the 4-4-1 plan, there's no question about it. When the district court opinion was rendered, the court directed the city to detail the steps that it would take to address the issue. The city went to the United States, to the Attorney General, and hammered out an agreed election plan. The parties then through joint submission submitted that agreed election plan to the district court. It is that agreed election plan that is before Your Honors today. In this record we call that plan the 4-2-3 plan. There are four single-member districts of equal size. There are then... on the left side of town, the two single-member districts are combined, and on the east side of town the two single-member districts are combined into two additional single-member districts. Thus we have six single-member districts. That's four plus two. Then there are three at-large representatives. One is the mayor, who may reside anywhere in the community and be elected at large, and that is not in dispute. There are two at-large representatives, one of whom must reside on the east and one of whom must reside on the west. In the joint submission made by the Attorney General following a protracted trial, the parties stated that the agreed plan provides the minority population with representation reasonably equivalent to its strength in the expanded city, tracking verbatim Richmond. The Attorney General and the city agreed to that. Turning to Section 5 of the Act, there's no question the purpose was legitimate. We were responding to a directive of the court, and we worked with the Attorney General. There is no question that the effect of the change was legitimate, because, as the Attorney General stated in the agreed submission, the single-member districts in the city's plan would appear to provide the minority community with a fair opportunity to obtain representation reasonably equivalent to their political strength in the enlarged community, and cited Richmond. The demographics of the single-member districts are such that one district has, in round terms, an 81 percent black population, a second district has a 61 percent black population. Then those two are combined into a third single-member district that has a 71 percent black population. These facts are agreed and undisputed. There are three single-member districts that have a majority black population. There are three single-member districts that have a largely white population. But we went one step further in this case that is a little unusual. The Attorney General and the parties, the city, agreed that in all probability representation would be provided equivalent to the strength of the minority community. The court, the district court and a court in Texas, permitted the holding of elections subsequent to disapproving this 4-2-3 plan. We conducted elections in the six single-member districts and in the mayor's race. That's before Your Honors in the record. In those elections which were conducted in those six single-member districts there were three black citizens elected from the majority black districts and there were three white citizens elected from the majority white districts, thus, if you will, proving categorically and undisputedly that the minority community received representation reasonably equivalent to its political strength in the expanded community. The United States has argued very vigorously the facts of the case as if the original plan that we tried was before Your Honors. The district court disapproved the 4-2-3 plan notwithstanding the representation and agreement of the Attorney General and the City of Port Arthur. The district court decision was two to one. The majority, in rejecting the plan, stated that it did not sufficiently neutralize the effects of expansion and dilution. That was the conclusion. There were no reasons given. Sandra Day O'Connor: Mr. Keith, may I inquire whether you think that the standard that we should use to measure, a fair reflection of political strength of the blacks in the expanded city, should be measured on the basis of voting age population figures or on general population figures? Robert Q. Keith: Your Honor, in footnote 22 of the Rome decision the Court stated, respectfully, a preference for the voting age population. And frequently both the district court and this Court in other cases have spoken of-- Sandra Day O'Connor: We haven't really determined that, have we? Robert Q. Keith: --I think that's fair. Sandra Day O'Connor: Is there anything in this record to show whether the general population statistics are a good indicator of future voting age population statistics? Robert Q. Keith: The Attorney General's office and the city and the court have all extrapolated this 35 percent number. We have all agreed that this is a legitimate number and a preferable number if we-- Sandra Day O'Connor: You may have agreed to that, but is there anything in the record to tell us whether there is some correlation on future voting age population. Robert Q. Keith: --No, Your Honor, there is not. We have accepted it as the best number available to the Census Bureau and to the parties. Sandra Day O'Connor: Is it your position that we should focus entirely on voting age population figures? Robert Q. Keith: Your Honor, it is my view that that is the best standard if it is a legitimate, demonstrable number. Now, it is not always available. Sandra Day O'Connor: Does your argument rest on that premise? Robert Q. Keith: Not at all, because if you take Justice Marshall's footnote in the Beer case and do the mathematics... and these become mathematical cases... our representation of 33 percent minority representation on the council and a 40 percent population, if you take that ratio, that's identical to that which he suggested was appropriate in the New Orleans... in the Beer case in New Orleans. So we're entirely comfortable with the 40 percent population, or we're entirely comfortable, of course, with the 35 percent voting age population. Either way, the position of the court is the same. Now, Your Honors, in addition to the three majority black seats, there is a representative elected at-large from a district consisting of 71 percent black citizens. And as Justice Blackmun said in concurrence in Mobile, the residency provides additional cross-sectional view, or the residency requirement provides additional cross-sectional view. Furthermore, in addition to having these three safe seats, if you will, the majority community also has a full opportunity to participate in the election of the two at-large representatives and the mayor. So the black community has an opportunity to participate in the election of the majority of the council. Now-- John Paul Stevens: Refresh my recollection. The figures are 40 percent population and 35 percent voting age. Do we know the percentage of registered voters? Robert Q. Keith: --No, sir, we do not. That's not in the record. The way Texas records are kept, it's really difficult. Speaker: I see. Robert Q. Keith: There's no question but what the City of Port Arthur met the Richmond standard, and unless that Richmond standard is to be be replaced by a new rule to govern this and future Section 5 cases, then the Court-- William J. Brennan, Jr.: Excuse me, Mr. Keith. You said that since the 4-3-2 plan was offered there's been an election under it with seven, three black, three white, and the mayor. Robert Q. Keith: --Yes, sir. William J. Brennan, Jr.: What about the other two? Robert Q. Keith: Those were the two at-large seats which were still at issue in this case. William J. Brennan, Jr.: I see. Robert Q. Keith: The district court said by way of suggestion, we will approve your plan if you would allow the at-large representatives by plurality. And as a result, Your Honor, there was no election conducted in those two at-large seats. Byron R. White: And is that the only issue that we have up here, is the district court's insistence on the plurality? Robert Q. Keith: The real issue, Your Honor, is whether or not the legislative plan meets the test of Richmond. The district court's suggestion is really not before the Court. The question is whether or not the agreed plan submitted by the City of Port Arthur and approved by the Attorney General meets the Richmond test. Byron R. White: And what did the district court rule? Robert Q. Keith: The district court ruled two to one that it did not and that we should go one more step. Byron R. White: But only because. Only because-- Robert Q. Keith: Only because-- Byron R. White: --of the plurality. Robert Q. Keith: --It didn't say because of the plurality. It said because we did not sufficiently neutralize the dilution. Byron R. White: Yes, but they said if you didn't have this head to head majority vote business you would have neutralized it. Robert Q. Keith: That is correct, Your Honor. And the United States then says that because of your history of polarized voting and because of the past discrimination which they argue, thus these past acts go to infect those two at-large seats with the majority vote. Byron R. White: Well, is there any issue about purpose in this plan, this particular plan? Robert Q. Keith: No, Your Honor. It was presented in concert with the Attorney General and responsive to the court. Nobody suggested there's an impermissible purpose. We thought the case had been settled when we received this rejection. Byron R. White: So in terms of the Voting Rights Act, what the court said is that this will have an effect. Robert Q. Keith: That is correct. Byron R. White: This will have an effect of diluting minority voting rights. Robert Q. Keith: Yes, sir, by reducing the black population from 45 to 40 percent there was dilution, because there was a history of polarized voting and because there was, by the court's findings, a discriminatory effect in the past at-large elections. Byron R. White: Well, prior plans they found had been purposefully discriminatory. Robert Q. Keith: That's correct, Your Honor. Byron R. White: I mean, the case you lost, was lost on purpose, wasn't it? Robert Q. Keith: On purpose and effect. Byron R. White: Yes, but they never would have needed to have gotten to effect. Robert Q. Keith: That's correct. But most of the opinion was related to effect. Now, the question is, the district court tried to look at each of these individual parts and analyze them, and the United States tries to have the Court focus on each individual part and determine whether or not it, standing alone, passes muster. In fact, as this Court has insisted and as other courts dealing with this have done, you look at the entire plan to determine whether or not it has the effect. William J. Brennan, Jr.: Mr. Keith, do I understand that if you had accepted the plurality suggested by the district court, the district court would have approved the 4-3-2 plan? Robert Q. Keith: Yes, sir. William J. Brennan, Jr.: And you refused to accept the plurality suggestion? Robert Q. Keith: Yes, sir. It was the legislative judgment that the plurality was unacceptable. Your Honor, since that time and pursuant to the authority of the district court... it's outside this record, but it is entirely verifiable... that plurality issue was presented to a vote in the city and was soundly defeated, three and a half to one. But that was not true at the time the city declined to accept it. William J. Brennan, Jr.: Rejected by whom, the voters at large? Robert Q. Keith: Yes, sir. Now, this is very clearly a legislative plan. As late as April of this year, in the Upham v. Seman case out of Texas, Your Honors reiterated the deference that is given to the legislative plan, the policy reasons that support it, the fact that neither the Congress nor the Court is seeking to intrude into the affairs of local government. The Attorney General approved it after, by this record, 12 settlement conferences prior to trial, detailed depositions, a lengthy trial, briefs. The Attorney General is the constituted champion of a minority voter, as was said in the Carey case. The Attorney General even in this proceeding has acknowledged that the court could properly have approved the 4-2-3 plan. It is the position of the city that the Richmond standard is a clear, direct, legitimately predictable standard that both the courts and parties across the country are able to deal with. Once that standard is met, the statute is complied with and the district court is obligated under this Court's decisions to approve it. John Paul Stevens: May I ask you a question of procedure? I wonder why you and your adversaries in the litigation didn't simply dismiss the lawsuit, voluntarily go in and ask this case be dismissed. Robert Q. Keith: We considered that, Your Honor. But we had all invoked the jurisdiction of the court. John Paul Stevens: Does that not imply, then, that the court had some power to approve or disapprove of the appropriate remedy? Robert Q. Keith: Your Honor, the court had the jurisdiction over the parties and the subject matter, there's no question of that. John Paul Stevens: Do you think it was required as a matter of law... they had absolutely no discretion in the matter... to accept anything that was acceptable to the Attorney General? Robert Q. Keith: So long as there were objectively verifiable facts and there was no collusion or nothing impermissible, and the facts undisputedly met the test. And that is true in this case. This is not a Rule 52, where you've got clearly erroneous or abuse of discretion. As a matter of undisputed facts, the governing facts are established; it becomes purely a question of law. William H. Rehnquist: Well, you did have intervenors below, did you not? Robert Q. Keith: Yes, sir, we did. We had two... we had four persons who intervened on behalf of the Defendant. Two of them approved the 4-2-3 plan, two of them objected to the 4-2-3. William H. Rehnquist: Well, doesn't the fact that intervenors are permitted in a proceeding like this suggest that they may be able to urge arguments that may not appeal to the Government and still might commend themselves to the court? Robert Q. Keith: Yes, sir, that's correct. But that does not mean that their arguments reach the level of a proposition as a matter of law. William H. Rehnquist: No, no. If the Attorney General... you didn't have to deal with the Attorney General to go to court. Robert Q. Keith: That's correct, Your Honor. Byron R. White: You didn't have to deal with him at all. And if the Attorney General hadn't been in this suit or hadn't been participating in this thing at all, and you lost the first lawsuit and then you proposed another plan, wouldn't the court have the... certainly it would have the authority to disapprove your 4-4-3... or your latest plan, wouldn't it? Robert Q. Keith: No question of that, Your Honor. Byron R. White: Well, you think it loses its authority just because the Attorney General comes in and proposes it? Robert Q. Keith: No, sir, we do not. Byron R. White: Especially if the Attorney General still keeps a string on it and says, we've still got worries about the plan. Robert Q. Keith: But Your Honor, where the court lost its authority was where the facts become undisputed and when undisputedly the plan meets the test of Richmond. The Attorney General also, Your Honor, is more than just the ordinary litigant in a voting rights proceeding. He under the Act has a standing essentially equivalent to that of a court in the administration of this Act. Sandra Day O'Connor: Mr. Keith, let's assume for the moment that the Court were to disagree with you that the agreement of the Attorney General required the court to prove the plan. Let's disregard that argument for a moment. Then is it still your position that the court as a matter of law under the City of Richmond had to approve the plan that was submitted? Robert Q. Keith: Yes, Your Honor. And I do not say the court-- Sandra Day O'Connor: And why? Do you think the court had the right to look into discriminatory purpose? Did the court have the right to look beyond the effect of the plan, into purpose? Robert Q. Keith: --Yes, Your Honor, it did. But there's no suggestion of impermissible purpose here, and this case should not be reversed because the Attorney General agreed. This case should be reversed because the plan unequivocally meets a clear, direct standard established by this Court. Sandra Day O'Connor: And if all we're looking at is that, then do we apply the clearly erroneous standard? Robert Q. Keith: No, Your Honor, because the facts are fixed as a matter of law and then the question of whether it does or does not becomes a question of law and not a question of fact or discretion. It is a clear, predictable standard and the parties have met it. The Attorney General's agreement is merely further evidence of that. John Paul Stevens: Has there been a trial on the question whether the 4-2-3 plan satisfies the Richmond standard? Robert Q. Keith: No, Your Honor, there has not. John Paul Stevens: And is it at least not theoretically possible that there was some invidious purpose in the adoption of this plan rather than some possible alternative? Robert Q. Keith: There is, but there's no suggestion of it at any time or place. John Paul Stevens: But I'm just wondering, how can you be so positive that it does... I mean, I don't see any reason it doesn't meet the plan. But how can we say that it's been settled as a matter of law that it meets the standards of Richmond? Robert Q. Keith: Well, Your Honor-- John Paul Stevens: Just because the Attorney General didn't object, is what you're saying. Robert Q. Keith: --No, sir. And the court made no finding and no suggestion that the purpose was impermissible. John Paul Stevens: Well, let me put it this way. Supposing, instead of the Attorney General agreeing to the plan, he said, I would agree to it if you impose the plurality requirement, and you had said, well, we don't have to do that. You'd make the same argument you make today, wouldn't you? Robert Q. Keith: That is correct, yes, sir. John Paul Stevens: So that the Attorney General's consent is really irrelevant to the issue before us. Robert Q. Keith: It is persuasive. It is not controlling. John Paul Stevens: But the controlling fact again is that the record leaves no room for doubt on the question whether it satisfies the Richmond standard. That's your point. Robert Q. Keith: That is correct, yes, Your Honor. May I reserve the remainder of my time, please. Warren E. Burger: Mr. Phillips. Carter G. Phillips: Mr. Chief Justice, may it please the Court: The issue in this case involving Section 5 of the Voting Rights Act is whether the district court erred in refusing to preclear the City of Port Arthur's post-annexation electoral plan so long as the city insisted on including a majority vote requirement for the election at large of two members of the city council. In the view of the Government, the issue is an exceedingly narrow one. There is no dispute that the annexations of Lakeview, Pear Ridge, and Sabine Pass are subject to the requirements of Section 5 of the Voting Rights Act. There is no dispute that the effect of those annexations is to significantly dilute the minority voting strength in the City of Port Arthur, in the expanded City of Port Arthur. Indeed, there is some reason to suspect, from the findings of the district court with regard to the 4-4-1 plan, that the motivation, at least in part, for the expansion of the City of Port Arthur was to assure that the white majority retained its status as the majority for the foreseeable future. Thus we are all in agreement that the basic test to be satisfied is that announced by the Court in the City of Richmond decision. William H. Rehnquist: Mr. Phillips, why doesn't the Beer case control this case? Carter G. Phillips: Well, largely because the Beer case deals with a situation where there's simply a change in an electoral practice dealing with a pre-existing city and that city remains as it is, whereas-- William H. Rehnquist: There's nothing in Beer that limits it to that or says that it isn't applicable to annexations. Carter G. Phillips: --No, clearly not. But this Court's decision in City of Richmond seems to indicate, or at least imply, and again in the City of Rome, that the proper test is not an analysis of retrogression, but rather the dilution of the minority vote comes from the annexation in the first instance. And the requirement is that the minority community be adequately represented in the post-annexation city. William H. Rehnquist: City of Richmond antedated Beer, did it not? Carter G. Phillips: Yes, sir. In the city's view, this Court's decision in City of Richmond imposes a bright-line test measuring the propriety of the city's post-annexation electoral plan. In our view, that simply does not square with the language of the test. The test looks for whether or not there is fair or reasonable representation. But its terms, it is not a bright-line test. It requires the exercise of judgment by the tryer of fact and by the court in deciding whether or not a particular plan satisfies the Voting Rights Act. Indeed, given the variable types of plans that are available and subject to review under City of Richmond, it is inconceivable that there can be any kind of a bright-line test. In this case we have a mixed at-large and single member district plan. In City of Richmond there was a single member district plan. City of Rome involved an all at-large plan. It's just impossible to come up with some test that will adequately resolve all of those different situations. Thurgood Marshall: Mr. Phillips-- Carter G. Phillips: Yes, Your Honor. Thurgood Marshall: --have you taken into consideration, there is a difference between the way land is annexed in Texas and the way land is annexed in Virginia? They're entirely different, aren't they? The question is, does that have any bearing on this? Carter G. Phillips: No, Your Honor, I don't believe so. Both sides in this case complain that the other has failed to look at the plan in its entirety. Our submission is that the city is the party with tunnel vision. Specifically, the city looks at the single member district portions of this plan, finds that they will provide a certain amount of representation, and then completely ignores the rest of the plan. Our position is that admittedly the single member district aspects of this plan go a long way toward satisfying the Voting Rights Act. Byron R. White: Is this a late insight on the behalf of the Attorney General? If the court had just approved the plan as submitted, would you have been up here? Carter G. Phillips: No, Your Honor, we would not have been up here under those circumstances. Our position is that it was a close question. I think our joint submission to the district court makes it clear we believe it is a close question. The district court viewed the facts somewhat differently from the way we viewed the facts and drew different inferences from them and concluded on balance that the 4-2-3 plan with the majority vote requirement could not guarantee adequate representation to the minority. Byron R. White: And now you agree with that? Carter G. Phillips: And that judgment we believe is entitled to respect. Byron R. White: Well, you seem to be agreeing with it; not just entitled to respect. You think it is now right. Carter G. Phillips: Well, because it is based on a set of findings that we believe are not clearly erroneous, and once you accept those findings, viewed through the prism of the district court's July 14th order, it seems to me there is no other conclusion that's available at this point. Specifically, there are four facts that we regard, that the district court found, that we think control this case: First, the City of Port Arthur faces severe racial block voting. The statistic that's used in this case is one that demonstrates statistically significant polarization at the.5 or.6 level,.5 or.6. Elections just prior to the annexation in this case involved racial polarization at.8 and above. Accordingly, it is clear that this is a badly divided city on the basis of race. An even more important finding in our view is the district court's conclusions that with at-large seats and a majority vote election the black community has no opportunity to influence any elections at large. That is, even white versus white candidates, the black community is unable... has no more than a mere theoretical possibility of exercising a swing vote influence. Accordingly, the ultimate effect of this plan as viewed from the district court's perspective must be to discard the black community or eliminate the black community's influence over six of the nine seats of the city council. Third, the district court found that in the past when there is a majority white population controlling the politics in the City of Port Arthur, there is a pervasive and systematic disregard for the black community, a systematic disregard that we submit, the court would conclude, will continue into the future unless this plan is modified. Finally-- Sandra Day O'Connor: Mr. Phillips, do we know what the district court based its decision on? Because it isn't entirely clear. It almost reads as though the district court thought it was reviewing the expansion, when it refers to neutralizing the expansion. And theoretically, you would determine separately whether the expansion were something that could be approved, and then if that can be approved you would determine whether the voting plan could be approved. Is there some confusion there? Carter G. Phillips: --Well, I don't think so. I agree that the order is not artfully drafted, but it seems to me that the district court made clear its understanding of the two strands of analysis required by the City of Richmond test. And it had already approved the annexation, and all that was left was the adequacy of the voting plan adopted for the expanded city. Sandra Day O'Connor: So you think notwithstanding the language that the court used, that there was no confusion about what the court was doing? Carter G. Phillips: I don't perceive that any of the litigants disagree with regard to what the effect of the district court's order was and what it was intended to be. Sandra Day O'Connor: May I ask you also whether it's your position that the Court should look only at voting age population figures? Carter G. Phillips: No, Your Honor. In our brief we argue that we think that both data have a legitimate role to inform the judgment of the Court. Admittedly, voting age population suggests the immediate effect of a change, but it does seem to us that raw population-- Sandra Day O'Connor: Do you think it's error if the Court looks only at voting age population figures? Would that be error? Carter G. Phillips: --If it's error? Sandra Day O'Connor: Wrong? Could a decision stand that focuses only on that? Carter G. Phillips: Well, the purpose of the Voting Rights Act and the approval of these changes is to determine their future effect, and I would think it would raise serious question if you completely disregarded what might be the potential effect. Assuming the voting age population is just significantly different from the overall population, it might create a problem. In a case like this, where the difference is not that significant, it would be hard to imagine that it would be very difficult. The fourth finding that we think is significant from the district court's June 12th opinion is its conclusion that residency districts do not offer the black community any greater influence over no residency districts, because of the pockets of white influence in the black districts and accordingly the availability of white candidates, who in at-large elections will continue to maintain the domination of the white community in Port Arthur. Based on these findings, we believe that the district court could conclude, legitimately conclude in the exercise of its equitable judgment, that this plan does not satisfy the Voting Rights Act, and that a single minor modification would be required, should be required in order to assure that blacks will have influence in the future in these elections. That modification is the elimination of the majority vote requirement. That elimination in no way offers the black community the opportunity to control additional seats. It merely grants them the right to have influence over the elected officials from those districts in the at-large elections, and that we think is an appropriate exercise. Lewis F. Powell, Jr.: Were you suggesting that in an election at-large that a city with a third of its voters black, that they would have no influence, that neither candidate would pay any attention to obtaining their vote? Carter G. Phillips: The finding of fact by the district court in its June 12 opinion is exactly to that effect, that in only one or two elections in the 14 years prior to 1977 could it find any evidence to indicate that there might have been a swing vote influence. Lewis F. Powell, Jr.: Is that typical across the South today? Carter G. Phillips: Well, I would hope not, Your Honor. I'm not an expert on that and I would guess that it's not always the case. Certainly, City of Rome, the district court found that in that community blacks had exercised significant influence. That's part of the reason why we believe our submission in this case is a very narrow one. We think the City of Port Arthur is an unusual situation, based on the findings of the district court. And that's why we have to look beyond simply whether rough proportional representation that's provided from the three single member districts adequately protects the interests of the minority community in the expanded city. Lewis F. Powell, Jr.: Is it the position of the Government that a majority vote is never appropriate? Carter G. Phillips: No, Your Honor, not at all. Certainly in a situation-- Lewis F. Powell, Jr.: It's the general rule across the United States, isn't it? Carter G. Phillips: --Yes, Your Honor, I think it is. And the city has argued in its reply brief that our position is a per se rejection of that view. Lewis F. Powell, Jr.: And may I get clear, is purpose still in this case at this level? Carter G. Phillips: Not in terms of the submission to this Court, no, Your Honor. Lewis F. Powell, Jr.: So we consider only the effect? Carter G. Phillips: Yes, Your Honor. I don't believe that the district court's opinion or order can fairly be read to cast any doubt on the purpose of the plan as adopted. Byron R. White: If we reverse, if we reversed the district court on its insistence on the plurality, would there be anything left of the case? Carter G. Phillips: Well, I don't think the United States' position is that this is infected with an invidious purpose, so I suspect there would be nothing left to litigate, although the intervenors might take a view different from that at this point. Byron R. White: At least, the district court didn't expressly negative any purpose-- Carter G. Phillips: No, the district court submission... the district court's order seems to indicate rather clearly that if the city were prepared to remove this one objectionable feature that seems to be directly related to the effect of this plan, that it would be satisfactory. The overall arrangement is itself not in-- Byron R. White: --Does that implicitly negative any invidious purpose? Carter G. Phillips: --Well, not actually, not as a matter of logic I don't think, Your Honor. Our position is that the case, the facts of this case are not significantly different, and if anything are easily controlled by this Court's prior decisions in both City of Richmond and City of Rome. City of Richmond, the black community was entitled on the basis of the single member districts to have essentially four representatives and a serious swing vote influence in a fifth district out of nine, and that for a population of approximately 41 percent. City of Rome involved an all at-large plurality vote system that was characterized by the district court itself as an essentially fair one, and yet the district court felt compelled to remove the single residency requirement in that case, and this Court upheld that exercise of judgment. We believe that these facts suggest a much worse situation for the black community and that the district court's judgment in eliminating the largest impediment to the opportunity to influence the city council is a reasonable judgment by the district court and should be affirmed. If there are no further questions-- John Paul Stevens: May I ask you one question which perhaps isn't directly before us, but I'm curious about. The district court's opinion indicated that the original annexation was infected with an invidious purpose, as I recall the opinion. And nevertheless, it found that there were subsequent legitimate reasons for the annexation that overcome the original invidious purpose. Carter G. Phillips: --Yes, Your Honor. John Paul Stevens: Do you think that holding is consistent with this Court's holding in Rogers against Lucas last year? Carter G. Phillips: It is... I hadn't really thought of that. It is clearly consistent with this Court's holding in City of Richmond. John Paul Stevens: Do you think it's consistent with the Voting Rights Act to have a mixed motive for a change? Carter G. Phillips: Yes, Your Honor, because the problem is that annexations create unusual problems and therefore you sort of have to examine them as a unique situation, I think. Warren E. Burger: Mr. Keith. Robert Q. Keith: Mr. Justice Stevens, in the very outset of the district court's opinion, they said on page 4A of the opinion: "We are convinced that the territorial expansion was accomplished without a discriminatory purpose. " Now, they did cast some doubt on it, but they clearly came out on page 1 with an unequivocal finding of no discriminatory purpose. Thurgood Marshall: But is it true that all the property annexed was predominantly white? Robert Q. Keith: Yes, Your Honor. Previously the city had annexed-- Thurgood Marshall: Well, I mean, that is true? Robert Q. Keith: --That is true. Thurgood Marshall: That is not invidious? Robert Q. Keith: The city had already annexed the adjoining black territory. There was no more black community to be annexed. They had already all been annexed. Thurgood Marshall: Well, were the same number of black and white people annexed? The answer is no. Robert Q. Keith: No, that is correct, Your Honor. Thurgood Marshall: That's right. They were white. Robert Q. Keith: That is correct. John Paul Stevens: And no problem? Robert Q. Keith: That is correct. The Solicitor General states that the residence requirement offers nothing to the black citizen. As the record shows, the residency requirement was imposed as a condition of settlement by the Attorney General, and it seems strange that they would now say it offers nothing to the black community when the joint submission makes very plain that it was at their insistence and did advance the interest of the black community. Justice Rehnquist asked about Beer. Your Honor, before these annexations began there was one black representative among seven on the council. Even just voting on a partial council, there are now three black representatives out of nine. So if Beer becomes the test, we have met Beer at least twice over. Regardless of the effect of the swing vote, the black community still has three representatives in a nine-person council. It has 35 percent of the voting age population. The Richmond standard is clear and direct and does not invoke a lot of confusion, doubt, and subjective judgments, that apparently would flow from an affirmance of this district court decision. Thank you, Your Honors. Warren E. Burger: Thank you, gentlemen. The case is submitted.

Earl Warren: Number 34, Times Film Corporation, Petitioner, versus City of Chicago, et al. Mr. Bilgrey. Felix J. Bilgrey: Mr. Chief Justice, may it please the Court. This case which is here on certiorari presents a state court an important question, whether or not a municipality may exclude all motion pictures for public view, unless and until they have been first submitted to a censor for the examination and censorship of their contents. The facts are as follows, the petitioner is engaged in the business of releasing motion pictures nationally. It has the exclusive right to license in the City of Chicago a motion picture entitled “Don Juan.” We applied to the commissioner of police who pursuant to the ordinance is to censor for a permit pursuant to the ordinance. We completed the application and the application was then tendered to the police commissioner with the licensing fee and the police commissioner refused the application on the sole ground that the motion picture itself had not been submitted for censorship. We then repeated the application to the mayor because the ordinance provides that in case of a denial of a permit, the application may again be made to the mayor and we again make -- made the application for this motion picture. We've tendered the licensing fee and we again refused to submit the motion picture, and the license was denied exclusively on that particular ground. We then filed a complaint in the Federal District Court and we alleged diversity of citizenship because the petitioners in New York concerned and we also alleged that the action arises pursuant to the First and Fourteenth Amendments and we also allege that the damages exceed the amount of $10,000. Now all these facts are admitted by the respondents. There's no question about facts, and the respondents have further admitted and stipulated that we are prohibited from showing this motion picture in the City of Chicago publicly under the penalties and prosecution pursuant to the provisions of the ordinance. Earl Warren: Wasn't that (Inaudible) the petitioners have refused to submit the film before the censor? Felix J. Bilgrey: Yes, it was Your Honor. That's part of the complaint. Earl Warren: The character of the picture is not involved. Felix J. Bilgrey: The character of the motion picture is not involved in this case Your Honor, Mr. Chief Justice. Potter Stewart: Not known, is it? Charles E. Whittaker: (Inaudible) Felix J. Bilgrey: It's not -- it's not known. Charles E. Whittaker: It -- it isn't, it's just not known, (Voice Overlap). Felix J. Bilgrey: It's just not known. The only thing which is involved is the title which is a part of the application. Charles E. Whittaker: Are you entitled then to sue (Inaudible) that this is hardcore pornography? Felix J. Bilgrey: Well that is an assumption, which the respondents have now indulged in their brief Your Honor but I don't think that we can assume in the -- in that. Charles E. Whittaker: Why not? Felix J. Bilgrey: Because the sole reason that the permit was denied was by virtue of the fact that the motion picture had not been presented. Charles E. Whittaker: But you refused to. Felix J. Bilgrey: Yes, we did, Your Honor. We maintain that the -- if I maybe permitted to further answer that question, we maintain that the respondents have no initial right to know the contents of our particular communication. Charles E. Whittaker: Then we have -- have you any right to assume you have basis for (Inaudible) Felix J. Bilgrey: Well, I suppose that the -- you do Your Honors but it is our position that even if all these assumptions are correct, that we still are entitled to initially present the communication. And as a matter of fact if I may further answer that -- the question Mr. Justice, there was -- there have been a case -- cases recently in New York where the counsel for both parties agreed and stipulated to that the motion picture is obscene and the appellant, the division did not agree and what -- did not have to abide by that stipulation. Charles E. Whittaker: And (Inaudible) still was no right to the City of Chicago to require a license. Felix J. Bilgrey: That is our position. William O. Douglas: That isn't the -- go to issue on that in a criminal prosecution. Felix J. Bilgrey: Well, of our position and I would -- if I may Mr. Justice come to that and -- when we reach the issue is that -- that one of the considerations that this Court I guess has always made and always will make is how -- will the state be left in utter confusion here if -- if a statute is struck down and set aside and it is our position that there are sufficient other remedies. Felix Frankfurter: In effect, are you saying that -- that's a pretty good question. Continue then. I in effect say that although in a complaint, although your complaint might have made -- stated, alleged that in fact we want to show a pornographic picture. But in as much as municipal -- the relevant municipal provisions of the Municipal Court of Chicago are unconstitutional there is no law, therefore there's no regulatory provision and therefore we're free to show it. Is that right? Felix J. Bilgrey: Well, that -- that is right Mr. Justice Frankfurter but if I maybe permitted to amplify and add to -- to that question. We have a lot of the previous litigation as our -- at the appendix in our petition for a cert -- for certiorari shows with -- with these same respondents and I think that if that previous litigation shows anything at all is that no pictures that we have ever submitted and nor anyone else that we ever know of to this particular board has in fact been pornographic. And I would venture a speculation that no one would ever submit such a picture to a board to begin with. Felix Frankfurter: You mean that we must take judicial notice that no pornographic films would -- could possibly be produced or desired to be shown to -- Felix J. Bilgrey: Well -- Felix Frankfurter: -- anybody in the United States. I should think I should take judicial notice into Contrary. Felix J. Bilgrey: Well, they didn't -- Potter Stewart: Why wasn't such a film would not be submitted to a municipal licensing authority, is that -- Felix J. Bilgrey: That -- that seems to be the general experience Mr. (Voice Overlap) -- Felix Frankfurter: Yes, but -- but you just trying to raise -- a legal question, of an abstract legal question, aren't you? Felix J. Bilgrey: Well, no. We are not raising an abstract legal question -- Felix Frankfurter: But isn't that the fact -- Felix J. Bilgrey: -- Mr. Justice -- Felix Frankfurter: -- merely on the assumption that you wouldn't be pro -- you wouldn't be submitting anything for the pure or quasi pure a film. Felix J. Bilgrey: Well, I think the -- the -- if I maybe permitted to answer that Mr. Justice Frankfurter, I think the question here is whether we've set forth the cause of action. We are -- we are in business for profit and of course that -- Felix Frankfurter: Well, pornography sometime is profitable, unfortunately. Felix J. Bilgrey: Well, but the -- I -- we -- the -- the question you were raising I believe is whether we've set forth a -- an adequate cause of action. But I think we have. We have applied for a permit pursuant to the ordinance. We didn't hide anything. We tendered the licensing fee and we're willing not to dispute that. Felix Frankfurter: But I thought you -- you were charmingly tendered when you said that your legal proposition in effect is that though you would say you're ready to -- that your -- you filed a complaint to say you want to show a pornographic picture but since there is no prohibition to any municipal regulation, you're entitled to show it. Felix J. Bilgrey: Well, I -- I think that -- that is correct Mr. Justice Frankfurter. I think that's our legal position. Felix Frankfurter: Alright. Hugo L. Black: Is your question the one you've presented in your petition especially granted? Felix J. Bilgrey: The -- the question -- the one that's presented -- Hugo L. Black: You're claiming I suppose whether right or you're wrong. There is no complication to arise, that exercise of power of censorship on motion pictures for than in a permit. It's been held it could not be done on publication for amusement. Felix J. Bilgrey: That -- that is our main contention Mr. Justice Black and -- Hugo L. Black: That seems to be the question you've presented. Felix J. Bilgrey: And it -- it seems to me that -- and the -- the -- that the -- that question has been before this Court on previous occasions and I don't think that there's any doubt in the minds of anyone even in the minds of the respondents that -- that is the position which the First Amendment in which this Court has taken with regard to every other single form of expression in the past. And I think that the way I read the -- this Court's decision in the Burstyn case that -- that the motion pictures have clearly been held to be a form of speech that fall within the prospect -- protective scope of the First Amend -- in the Fourteenth Amendments. Felix Frankfurter: And they're not effective, should no regulatory schemes, is that what the first case hold? Felix J. Bilgrey: Well, Mr. Justice Frankfurter, I believe that this Court in -- in Burstyn has held that there can be a regulatory scheme so long as the regulatory scheme does not take the form of the previous licensing and -- Felix Frankfurter: Is that -- is that what Burstyn had hold to mean? Felix J. Bilgrey: Well, Burstyn was confined to the particular standard, Mr. Justice Frankfurter. But I believe that the fact that this Court has consistently struck down every single standard and has reversed every single ban since Burstyn -- Felix Frankfurter: And consistently never -- never pronounced your proposition? Felix J. Bilgrey: Well, the proposition was never before the Court in this particular fashion -- Felix Frankfurter: I'm not saying -- Felix J. Bilgrey: -- Mr. Justice Frankfurter. Felix Frankfurter: I'm not saying it may not eventually so pronounced (Inaudible) -- Felix J. Bilgrey: Well -- Felix Frankfurter: Are you suggesting that it has not? Felix J. Bilgrey: I understand that, Mr. Justice Frankfurter. But the way I read your opinion in the Co -- in the Kingsley Books case, it -- it seems to me that those are your views as well that the -- that the state has plenty of regulatory schemes at its command. And in fact, this Court has held in the Kingsley Books case that they limited injunctive remedy. It must be upheld where the State of New York enacted it in order to prevent the obscenity and other undesirable conduct. But I think that the view was stressed in Kingsley Books again that the remedy must be closely confined and so as to preclude what is commonly known as licensing or censorship. And I think that the Court referred to the word licensing there as a discretionary license because we're willing to waive the licensing fee. We don't particularly care about that. Potter Stewart: Mr. Bilgrey at the earlier part of the argument, you said that what this ordinance does is to prohibit the public exhibition of a film which has not been submitted for licensing. Now, is there -- is there a definition of public exhibition? I assume that why -- what you say by implication that there's nothing in the ordinance to prevent a private exhibition of this. Felix J. Bilgrey: I don't -- I don't believe there is Mr. Justice Stewart, you have -- I have ordinance in front of me here and -- Potter Stewart: I wonder if public exhibition were defined in any form. Felix J. Bilgrey: And the -- and the -- well, it's defined as a -- as a -- if any arcades -- well, this is a very old ordinance, I think its 50 years old. And in all of the automatic or motion picture devices and I imagined that applies to theatres. But I would like to point -- I would like to point out -- Potter Stewart: Does the statute in -- in your -- your appendix to your brief? Felix J. Bilgrey: The statute is in the -- in the -- Potter Stewart: I see, at page 39. Felix J. Bilgrey: -- record at page 9. Potter Stewart: In the record, page 9. Alright, thank you. Felix J. Bilgrey: May it please the Court, I believe that this ordinance is indeed censorship in its purest state and form. And I don't think that it's necessary to repeat here the arguments which I believe every justice of this Court has made. And I think that the sole distinction that some of the justices of the Court had made with regard to a particular form of restraint, is that they did not consider that form of restraint prior censorship. But here, the ordinance spells it out. The ordinance, if I may refer to it states -- specifically states, and that is Section 155-4 that every motion picture shall be submitted for censorship of its contents. I don't think that there can be any question here that this is indeed the type of censorship that the First Amendment was enacted against. John M. Harlan II: So you're saying I gather is that on the assumption, this film, we haven't got it, the hardest, sort of hardcore pornography. So if the State of Illinois cannot deal with you through a licensing program but it's -- had to let you exhibit then prosecute you if you violate the criminal law, is that it? Felix J. Bilgrey: Well, in -- Mr. Justice Harlan, if I may be permitted to expand on that, that we -- we are saying that to a certain degree, that we are not suggesting what remedies the state can have. The state in effect -- John M. Harlan II: Oh, isn't that your -- isn't that your whole case? Isn't that what you're here about? Felix J. Bilgrey: Well, I believe that that is a correct statement Mr. Justice Harlan. We -- we are here to allege that the very least that the First Amendment stands for and as -- is made applicable to the states through the Fourteenth is to provide for freedom from previous restraints and we don't -- we don't think that the respondents here have been in business to know what this particular motion picture may contain. It may be pornographic, it may be Pollyanna, it may be Mozart. The fact is that we would be prosecuted and the respondents have so admitted, if we were to show this movie in violation of the ordinance, merely for failure to have a permit. John M. Harlan II: Well, that's what the Court of Appeals held and the fact that you have to do. They said you were -- they're prematurely your suit. Its premature because the way you raised your point was to get yourselves prosecuted and then plead the invalidity of the licenses that require -- Felix J. Bilgrey: That -- that is the contention of the Court of Appeals Mr. Justice Harlan, but we don't agree with that and in fact we don't understand it because -- John M. Harlan II: Do you think I understand it correctly? I -- I have -- Felix J. Bilgrey: Well, you -- you understand the -- certainly understand the contention of the Court of Appeals correctly -- John M. Harlan II: Oh, I had much trouble -- Felix J. Bilgrey: -- Mr. Justice Harlan. John M. Harlan II: -- with that and I was wondering whether you understood it the way I did. Felix J. Bilgrey: Well, we understand that that is their contention but we certainly don't agree with it. In fact, every single motion picture case, which has been before this Court, has been in exactly the same posture as this case. John M. Harlan II: I'm not saying that I agree with it either. I'm just asking you whether I've read the (Voice Overlap) Felix J. Bilgrey: That -- that is their contention. But -- but we -- we are -- our position is that we -- we have applied for a license. And in fact, if we had shown the motion picture without a license, the -- the respondents would then have contended that we would have had to challenge the entire ordinance which we were not willing to do. Felix Frankfurter: The cases that had been before us to which either opinions were written of per curiam decisions. Aren't they all -- aren't the ordinances or if there were state statutes, aren't they all found then you got it because of the vagueness or the nature of the -- of the regulatory statutes rather than the statute as -- rather because there were regulations? Felix J. Bilgrey: The -- that -- that is right there, Mr. Justice Frankfurter but this Court has been very careful not to prejudice this particular question as to whether the prior restraint itself -- Felix Frankfurter: No, no. Felix J. Bilgrey: -- will be tolerated. Yes -- yes, you're -- that is a correct statement of course. Felix Frankfurter: I don't suppose this had any criterion that lawyers can't frame a convention they can get here. I'm just wanting to know where we are as of this moment. Felix J. Bilgrey: Well, I think that -- Felix Frankfurter: It is true, isn't it? That all the adjudications thus far have been very careful not to pass on this. Felix J. Bilgrey: That is right there Mr. Justice Frankfurter. That is the correct appraisal of the issue as of now. But we would like to add if we may, if we maybe permitted to do so that the -- the Illinois State Supreme Court has not taken that view and that it has interpreted this Court's holding in Burstyn to countenance censorship because it has -- and it has construed this ordinance to -- to permit censorship of motion pictures. And in fact that the -- what the only word that we think as I propose to use is that it has distorted Near against Minnesota to such an extent that if this Court were to accept that position, the First Amendment would no longer be the First Amendment. Felix Frankfurter: Near wasn't a movie, I think, was it? Felix J. Bilgrey: No, it was not Your Honor. But this Court referred to it in the Burstyn case. Potter Stewart: Although it wouldn't -- isn't Near quite different also in this way. You'd have a Near case, Near against Minnesota wouldn't you if there were an absolute refusal to license this petitioner's movies quite -- without viewing them at all or without an exhibition of them but solely on the basis that one time he made a bad movie. Felix J. Bilgrey: Well, that that -- that is -- that is right Mr. Justice Stewart that that is one form of censorship but we think that the -- Potter Stewart: That's the Near case. Felix J. Bilgrey: That's the Near case. Potter Stewart: Near against Minnesota. Felix J. Bilgrey: Yes. But they're -- Potter Stewart: But here, they tried to (Voice Overlap) -- Felix J. Bilgrey: This is an even -- Potter Stewart: -- by a movie. Felix J. Bilgrey: This is an even clearer case of censorship because the city presumes and in fact, it presumes that every motion picture meets every objection within the ordinance. In fact, they put the shoe in the other foot and I think that this revolts against our traditional mode of justice and according to the other remedies and we would like to point out to the Court that we maybe permitted to do so the -- that the Motion Picture Association of America has filed an amicus brief in this case and this Court has granted the motion and they have an appendix in that amicus brief which shows that 46 states in our union and the great vast majority of our cities, the municipalities, rely on our traditional judicial processes. And that I think that these points out what the Mr. Justice Brandeis once referred to as “the judgment of mankind.” I think that it shows that our traditional judicial mode of dealing with the -- with that which maybe rejected is not lost and that the state would not be left in any confusion. In fact, Illinois has a penal code and in fact the -- this may not be too pertinent from a constitutional viewpoint but we noticed that the ordinance does not provide for immunity from the Illinois penal code. In fact, the -- Your Honors, the way we read the holding of the Circuit Court of Appeals in this case, they are remaking the First Amendment all over again. Their argument is that the motion pictures are very effective and -- and that therefore, they ought to be censored. Well its -- Potter Stewart: Are you suggesting there maybe some self-incrimination angle here that compulse -- compulsion to exhibit something to which you might be prosecuted? Felix J. Bilgrey: Well, we -- we hadn't raised that -- Potter Stewart: (Voice Overlap) to the licenser? Felix J. Bilgrey: Well, we -- we -- that may certainly be an issue Mr. Justice Stewart but we hadn't raised the self-incrimination issue. Potter Stewart: I just wanted -- if that wasn't your point of the arguments you're now making. Felix J. Bilgrey: Well, the -- the -- Potter Stewart: (Inaudible) Felix J. Bilgrey: The -- the argument that -- well, the argument that we are making and we're perfectly willing to show this picture privately to the respondents if they care to see it instead. The argument that we are making Your Honors is that even if motion pictures were irresponsible as a form of speech, and I think that the Court has said this in Burstyn and repeated it in Kingsley and even if they are very eloquent as a form of speech, then they still are entitled to the First and Fourteenth Amendment protection. And I think that we appreciate the -- the glamour that the -- that the Circuit Court of Appeals give to the motion picture industry. I think it's been long since lost but they called it a very effective medium. I think the industry has long since lost that glamour to television. Felix Frankfurter: You mean, the implication is that it's innocuous and therefore they ought not to be censored here. Felix J. Bilgrey: No, your -- Mr. Justice Frankfurter, the implication is that -- and this Court has so held in the Kingsley pictures case that even if it is most eloquent, it still is entitled to the First Amendment protection and even if it is mostly irresponsible which we object to quite strenuously. Earl Warren: We'll recess now. Felix J. Bilgrey: Thank you Your Honor.

John G. Roberts, Jr.: We'll hear argument first today in No. 04-1581, Wisconsin Right to Life, Incorporated v. Federal Election Commission. Mr. Bopp. James Bopp, Jr.: Thank you, and Mr. Chief Justice, and may it please the Court-- This case involves the fundamental First Amendment question of whether the Government can shield lawmakers from grassroots lobbying about upcoming votes in Congress through campaign finance laws. This Court has distinguished the regulation of corporate electioneering from efforts to influence law making, finding sufficiently compelling governmental interests in regulating electioneering, but not grassroots lobbying. David H. Souter: Mr. Bopp, right... right there I guess I... I have a problem with... with your argument, and I just want to get it out. I went back and looked at some of the examples that were given at... in... in the McConnell case for parallels between what we... what we thought was covered in those cases and... and yours... your case. And the... the one which I... I guess was probably the closest was the... was the advertisements there in... in the McConnell case on the... the lobbying on the Chinese trade relations. The basic message in... in that case was China uses forced labor. The Congress of the United States is about to make it easier for... for Chinese goods to get in here and for China to have a respectable trade status. And... and it said, call Congressman Myrick, I think it was, in any case, a Member of Congress, and... and say what you think. In this case, you're... you're talking about a... a filibuster, and you say, you know, they're filibustering nominees and they're not coming up to... to a vote. Tell the two Senators in this State, Kohl and Feingold, that... that you don't like this. The only difference that I could see basically between the two kinds of ads was that in the first one... in... in the Myrick ad, they actually gave the number of the... of the congressional office to call and say, hey, don't do this. In this case, your clients did not give a... a number. They gave a Web site to an organization. Insofar as I know, it doesn't have a number. Which gets me to the question. If the... the Chinese trade relations ad was presumably validly subject to the act, I don't see why your client's ad is not, for the same reason, subject to the act and for the further reason that it doesn't even give a phone number to call... to... to lobby people. So it seems to me that on stare decisis grounds, unless we're going to go back and simply reexamine McConnell to... to... from... from scratch, that your clients fall within the general rule as... as we held it in McConnell. So why doesn't precedent foreclose this? James Bopp, Jr.: Well, there... there is a few specifics about the... about our ad that... that I would like to remind the Court of. First, it was not... the call to action at the end of the ad was not just call them up and tell them what you think. The call to action was to call the Senators and ask them to oppose the filibuster. So it was specific. David H. Souter: Yes, but you didn't even give their phone numbers. James Bopp, Jr.: Well, and then it refers to a Web site, [befairDOTorg,] which contained prominently on the first page the phone numbers and addresses and all contact information for these two Senators. The decision was made by the speaker here that it would be more likely that the recipient of the ad would remember the phrase, [befairDOTorg,] and seek the information on that Web site than to have a... you know, a... a phone number that is just simply more difficult to... to remember. David H. Souter: Okay. So if we accept that extra step, that's... that gets you... if... if we accept the extra step that gets you parallel to the... to the ad that we considered in McConnell. James Bopp, Jr.: Well, it... it doesn't, the one that you mentioned, because it was just call them up and-- Stephen G. Breyer: If... if it's the fact that you go to the Web site and that's what's supposed to make this what it was in McConnell which, by the way, we said was illegal, what they... the first thing they're going to see when they get to the Web site, which I agree with you... four times in 3 of the 12 sentences of this ad... in 3 of the 12... it says, [befairDOTorg,] visit [befairDOTorg,] go to [befairDOTorg.] And the first thing that they're going to see when they get to [befairDOTorg] is a big headline in bold... gold... bold letters which says, Feingold and Kohl continue to support unprecedented filibusters of judicial nominees. So, in fact, if [befairDOTorg] is brought into the picture, that makes this ad look much more like an effort to... to defeat Senator Feingold than the ad that we considered in our previous case. James Bopp, Jr.: --Well, it-- Stephen G. Breyer: Doesn't it? James Bopp, Jr.: --No. In your previous case, there were certainly genuine issue ads. This Court recognized that it... that there were genuine issue ads that were not for the purpose of influencing an election. I believe that these ads are at the very core of what a genuine issue ad is. It involves a... a pending legislative issue, and the only reference to the Senator... and it was both Senators, not just the one up for election... was to contact them about... about how... whether to support or oppose that specific initiative. Sandra Day O'Connor: Yes, but in McConnell-- David H. Souter: But if you are right-- Sandra Day O'Connor: --in McConnell, the Court said corporations and unions may finance genuine issue ads during election blackout periods by simply avoiding any specific reference to Federal candidates or, in doubtful cases, by paying for the ad from a segregated fund. Now, that language indicates, to me at least, that the Court was saying there are no genuine issue ads meeting the definition as you would have us apply it here. James Bopp, Jr.: Well, that... that part of the opinion needs to be read in light of the footnote, which is attached to those very words, which said in footnote 88 that the interests that support regulation of electioneering may not apply to genuine grassroots lobbying and distinguished the McConnell case from Bellotti and McIntyre. So we do have to recognize that there's two things going on here. There... there is an election, but also Congress is in session. The Government is engaging in its law making function. Ruth Bader Ginsburg: Mr. Bopp, to what extent can we take into account the surrounding circumstances? One thing that you advocate is to look at this ad in isolation, but if you add to it that your organization made it clear that it opposed the candidacy of Senator Feingold and that it supported his opponents, that your organization also connected, as Justice Breyer just brought out, Senator Feingold with this filibuster, and then if the filibuster was such an important thing for grassroots lobbying, why was it that when the election was over, this ad was not repeated? James Bopp, Jr.: Well, of course, the final point is... is in the record, that... that is, it was... the... it was supposed to come to a head in November and then it did not. It was abandoned. But the... but the point is you cannot... I don't think that the Government can condition-- Antonin Scalia: I... I don't... I don't understand what you just said. James Bopp, Jr.: --Well... well, the... the filibuster issue, as it related to that session of Congress, it was thought that it was going to come to a head in... in October... excuse me... but it... but as a... but it did not. So that is the reason why it was... it would not have been run after November. Antonin Scalia: I mean, once it didn't come to a head in November and it was still an issue, why didn't you continue to run it? James Bopp, Jr.: Well, each organization has to make an assessment with respect to the different issues that they want to be lobbying on and the... their pressing nature. And-- John G. Roberts, Jr.: I thought your point was that it was not an issue after the election. James Bopp, Jr.: --Well... well, it was in the... in the next session of Congress and has been an... an issue. But each... a lobby organization makes a decision about the priorities that they have and whether or not their lobbying effort will most likely affect legislative action. So-- John G. Roberts, Jr.: Were you taking a position on this issue prior to the election time frame? James Bopp, Jr.: --Yes. The-- John G. Roberts, Jr.: Had you taken out advertisements prior to that time frame? James Bopp, Jr.: --Yes. Yes, and in fact these radio and television ads were continuing up until the blackout period and it was the blackout period that triggered the case. Stephen G. Breyer: But the basic question I think is this. All of us... or almost all of us who are here... spent an entire summer reading through one of the longest set of opinions I've ever seen from the lower courts and going through a record that they had compiled over months reflecting 6 years of congressional effort. And what that record showed with dozens, hundreds I think, of examples was the basis for Congress' conclusion that there's simply no way to know whether an ad like yours is a genuine issue ad or isn't. And the only way that we have a hope of stopping rich people or corporations or labor unions from simply trying to defeat candidates by writing sham ads is to have the rule that we have. Now, you have a very good argument, but it's an argument that I heard right in that case. And we considered right in that case issues like yours, just ads like yours, ads that were even less sham like than yours, if you want to call yours a sham... I don't mean to be pejorative. But we considered all that, and then we used them as an example. And of course, it was close. 5 to 4 this Court said ads that are even more apparently neutral on their face than yours, Congress can impose this requirement. Now, what's different about your ad than the ads we put right in that opinion as examples of what we'd allow Congress to control? What's different now or are you asking us to go back only a year later and undo what we did? James Bopp, Jr.: No. I'm asking you to give meaning to the holding of this Court that there were genuine issue ads that were broadcast during that period of time. The Government conceded 7 percent, asked you to do a Broadrick analysis upholding the statute on its face, reserving as applied challenges to genuine issue ads in subsequent cases. That is what this case is about. And the difference here is that as Judge Leon... the record of the case... in Judge Leon's opinion, he went for a number of pages explaining what genuine issue ads in his view were, and what... and he said that if the ad discusses a current legislative issue and refers to the Member of Congress in calling on him or her to take a particular action on that issue, that constitutes a genuine issue ad. Ruth Bader Ginsburg: Can we return to-- James Bopp, Jr.: These people are law making. Ruth Bader Ginsburg: --Mr. Bopp, then can we return to my question? Do we view the ad in isolation, and do we discount the connection by your organization of this Senator with the filibusters that you said was a very bad thing? James Bopp, Jr.: And I'm sorry. I was interrupted. I wasn't able to get to that question. And the... the Government cannot condition the exercise of one right on exercising another. There's a First Amendment right for the PAC of Wisconsin Right to Life to support or oppose a candidate. That's different than what its lobby group does. Its lobby group is primarily involved in influencing current law making. And so that is why, in the First Amendment, petition is separately listed. Ruth Bader Ginsburg: But the electorate will know that this issue is presented to them in connection with this Senator and that your organization has linked the two very clearly. James Bopp, Jr.: But, you know, the... the effect on an election is remote and speculative and not proven by... in terms of genuine issue ads in this record. But these people are law making now. So there's a pressing need and, indeed, right for people today to influence the Government's law making regardless of the incidental, remote, speculative, and unproven effect that that genuine issue ad may have on an election. There... there is simply... we just cannot get away from the fact that the most important thing that Government does is law making, and because they've scheduled an election should not immunize the incumbents from being lobbied about that very law making function that they're engaged in today. David H. Souter: --Then why didn't we have to go the other way in the Chinese trade relation example? I mean, everything-- James Bopp, Jr.: Well, I don't think you-- David H. Souter: --unless I'm missing something in your argument, everything you are saying in this argument could have been said with respect to that ad and, as Justice Breyer said, to a couple of others. James Bopp, Jr.: --Well that may very well have been a genuine issue ad in the mind of this Court. You only cited one ad, which was on page 193, which was the Yellowtail ad, as an example of sham issue advertising. David H. Souter: Yes. James Bopp, Jr.: And there, you know-- David H. Souter: And... and we... we cited some other examples as... as examples that, on the face of it and on the face of the record, would... would lawfully fall within the... the general rule that we said Congress could prescribe. James Bopp, Jr.: --Well... well, the Yellowtail ad, which you cited and quoted as a example of sham issue ad, said that the... Mr. Yellowtail had taken a swing at his wife and he justified that because he said he didn't hit her. David H. Souter: No, but the point-- James Bopp, Jr.: And then it said basically call him up and yell at him. David H. Souter: --But I... I don't want to cut you off from your Yellowtail argument, if... if you want to make it, but it seems to me that the problem in this case is that your ad is very much like a nonYellowtail ad. And the problem that we would have in accepting your argument is, number one, a problem of precedent and, number two, the problem that Justice Breyer raised that, again, we had dealt with in the prior case. James Bopp, Jr.: How could it be-- David H. Souter: No, no. Let me just finish my question. James Bopp, Jr.: --Sorry. David H. Souter: Once you get out of the sphere of... of kind of sham ads that just hit you in your face, there isn't a practical way to tell the difference. There isn't a kind of magic formula. We rejected the magic word, or Congress rejected the magic word's approach. And therefore, Congress came up with a rule that it did within certain time limits, identified candidates, identified audiences. You can't do it within this period of time unless you do it through a PAC. What is different in your case from those paradigm examples in... in McConnell? James Bopp, Jr.: Well, as I was describing, the Yellowtail ad was-- David H. Souter: But Yellowtail-- James Bopp, Jr.: --which involves very-- David H. Souter: --is... is an ad of... an obviously sham ad. The problem that we're dealing with-- Antonin Scalia: Mr. Bopp, did... did the opinion refer to-- David H. Souter: --May... may I finish? Antonin Scalia: --sham ads? David H. Souter: Excuse me. May I... may I finish my question? Antonin Scalia: Did the opinion refer to-- John G. Roberts, Jr.: Justice Souter. David H. Souter: May I finish my question? The... the... no one is saying that your ad in this case is an obviously sham ad like Yellowtail. Your ad in this case is one of those ads that it's difficult to deal with fairly. You can say, well, you know, it's an electioneering ad and you can say it's... it's a lobbying ad. And... and Congress decided how to deal with them. We said that's okay. Why doesn't-- James Bopp, Jr.: --Only on a facial challenge. David H. Souter: --Yes, but why doesn't your ad fall within the reasoning that we used in approving... on the facial challenge, in approving the statute? James Bopp, Jr.: Because the Broadrick facial challenge analysis that you engaged in in McConnell is not completed because that includes future as applied challenges. The Government argues that there were-- David H. Souter: No... no question about it. James Bopp, Jr.: --7 percent-- David H. Souter: But your... your as applied-- James Bopp, Jr.: --genuine issue ads-- David H. Souter: --challenge has got to have something different about it, something unusual that says this is why my ad does not fall within the general rule. And that's what I'm trying to get at. James Bopp, Jr.: --Well, I... I will repeat. The... it involves a currently pending legislative issue. It does not talk-- David H. Souter: Wasn't the Chinese trade issue currently pending? James Bopp, Jr.: --Yes, it was, and you know, the Chinese-- David H. Souter: So that's no difference. James Bopp, Jr.: --But... but, Your Honor, the Chinese example was not cited by this Court. It was in the record. And it may be a... a genuine issue ad. David H. Souter: Sure. James Bopp, Jr.: Okay? And... and the Government argued there were 7 percent genuine issue ads really trying to exercise the constitutional right to petition Government, because Government is regulating us right now in terms of their votes and their actions. And, of course, that's why in the First Amendment, it doesn't just say speech and... and association and press. It... it says-- John Paul Stevens: May I-- James Bopp, Jr.: --petition the Government. John Paul Stevens: --may I ask one question just to find out? Are you contending that there is a sharp distinction? There's a category of issue ads and a category of election ads that are mutually exclusive? James Bopp, Jr.: I think you can create objective criteria, just like this Court has-- John Paul Stevens: No. If you can answer my question yes or no. Are... are you arguing there are two mutually exclusive categories, or are there ads that fit somewhat in both? James Bopp, Jr.: --Well, I... I think that you can adopt objective criteria as you have in the Noerr v. Pennington doctrine to separate the two. John Paul Stevens: Are you able to answer my question yes or no? James Bopp, Jr.: I... I would say no. John Paul Stevens: You're not claiming there are separate categories. James Bopp, Jr.: Then I misunderstood your question, Your Honor. I am saying that they are separate categories. This Court-- John Paul Stevens: So it's either... it's either an issue ad or it's a candidate ad. James Bopp, Jr.: --Yes. And I'm not saying at the... at the margins there... there may not be doubtful cases, but what I'm saying is that this Court in Noerr v. Pennington doctrine has recognized and adopted objective criteria to distinguish between genuine efforts to influence the Government, which is not subject to the Sherman Act, and sham issues... efforts to regulate-- John G. Roberts, Jr.: Does the... does the FEC draw... distinguish between sham ads and genuine issue ads? James Bopp, Jr.: --No, the... no, they haven't. But right before the 2004 election... excuse me... they gave an exception to an auto dealership that wanted to continue to run the name of the owner of the dealership, despite the fact that he was a Senator... a candidate for United States Senate, during the blackout period. And the commercial interests at stake there were sufficient for the FEC to grant an as applied exception even though there may have been some incidental effect on the election. So the FEC has recognized that there is interests which are sufficient and... and also that the... the possible impact on an election is so remote that... that the interests are... are sufficient. Stephen G. Breyer: All right. So what is the test? Because I... my vague recollection from a year and a half ago is that there was in that testimony political consultants who said if you really want to defeat a Senator, here's how you do it. James Bopp, Jr.: Yes. Stephen G. Breyer: Run an ad that just speaks about a group of Senators. It's plain that they're bad, and then put in some words that mention his name and everybody will get the point. They said that's even better than saying, vote against. And then our opinion said there is little difference between an ad that urges voters to vote against Jane Doe and one that condemns Jane Doe's record on a particular issue while exhorting viewers to call Jane Doe and tell her what you think. That was the opinion. So, now, what's your test to decide whether that's what's going on or whether this is a genuine issue ad? James Bopp, Jr.: I think that you would look at, one, whether the... the ad discusses a current legislative issue; two, whether or not it made any reference to the legislator beyond lobbying him or her about that specific issue. So there should not be any references to the election or the candidacy of the incumbent or any of those type references. And if you had that, you would have a bona fide, genuine effort to lobby. They are voting. They're taxing us. They're regulating us. And as we know, the record reflects that usually most of the... of these issues are decided in the context of this blackout period at the end of... end of Congress. So I know it is difficult to balance these interests, but there is more interest among the people than simply the remote and speculative effort to influence an election. There is an immediate need to influence how Government is regulating and taxing us. So that is the interest that is presented here. That is the interest that the Court in McConnell recognized when the Court said there are genuine issue ads and... and only engage in what the Government urged was a Broadrick facial challenge analysis. The Government said in McConnell, well, any of these genuine issue ads can be dealt with in an as applied challenge. Now, they have switched sides here, having asked the Court and the Court engaging in a Broadrick facial challenge analysis... are now saying that even though Broadrick would allow as applied, that you are not to entertain any as applied. I just don't see-- Sandra Day O'Connor: Now, this ad could have been run by your clients by a segregated fund. James Bopp, Jr.: --Yes. Yes, that is true. And... and, of course, as... as this Court has recognized-- Sandra Day O'Connor: It just ran out of money. Is that the deal? James Bopp, Jr.: --Well, that was only part of it. They... they didn't raise money with the anticipation of doing their lobbying with it. In other words, they raised all their lobbying money in their... in their general treasury. The... the only funds they raised in their PAC is to advocate the election or defeat of candidates or give money to candidates, which... which this Court has recognized is a proper way of directly affecting an election. But making lobbying into a PAC means that, number one, you're going to have to identify that effort to influence a vote... about an upcoming vote in Congress, you're going to have to identify that as a political activity. Stephen G. Breyer: All right. If you can do this, can a labor union do it? James Bopp, Jr.: Yes. Stephen G. Breyer: And a corporation? James Bopp, Jr.: Yes. Of course, the prohibition we're attacking is against corporations-- Stephen G. Breyer: All right. Well, then... then we're back to... I mean, I've heard this. This is very familiar music to me and I think you raise a tough issue. I just thought we perhaps had decided it. But the... the reason that this was so tough was then these very, very wealthy individuals... and since I once read through the list, I know who they are. And they... they say, I'm going to give $15 million. You know, I'm going to give $15 million. So they hire this genius political consultant that's there in the record. And what happens is ads that look an awful like this, and this consultant says, hey, we have $15 million to pay for it from this one person. And they run them all over the country. And Senator after Senator is boom, boom, boom, boom. James Bopp, Jr.: --Yes, but-- Stephen G. Breyer: It becomes a question of motive and how do we know what the motive is? James Bopp, Jr.: --That's not what advocacy groups are doing. You know, people who want... the wealthy people you're talking about have gone into giving money to 527 unincorporated groups that... that are using issue ads lawfully through that vehicle. But, you know, before this all happened, the 1996 and the record of McConnell where, all of a sudden, there were more of these issue ads, the record also reflects that there had been issue ads, you know, throughout history. And... and, of course, those were all these efforts to influence the upcoming votes in Congress. So that occurred before this effort with sham issue ads. It... it would occur now except that genuine issue advocacy through grassroots lobbying is now swept in under the reason that it might have an incidental effect on elections. This Court just simply needs to recognize that there's more to Government than elections, and even more importantly than elections is the law making function and that... that people should not be disabled from using most effective means to influence that law making with... on the basis that simply there's an election coming up. I'd like to reserve the balance of my time. John G. Roberts, Jr.: Thank you, Mr. Bopp. General Clement, we'll hear now from you. Paul D. Clement: Mr. Chief Justice, and may it please the Court-- In McConnell against FEC, this Court upheld title II's definition and regulation of electioneering communications by corporations and unions as defined in the act. John G. Roberts, Jr.: In McConnell against FEC, you stood there and told us that this was a facial challenge and that as applied challenges could be brought in the future. This is an as applied challenge and now you're telling us that it's already been decided. It's a classic bait and switch. Paul D. Clement: No. In... in fairness, Mr. Chief Justice, in the McConnell case at pages 105 and 106 of our brief, we said that as applied challenges would arguably be available. But the principal argument we stressed in the brief and in oral argument was that, in a sense, overbreadth analysis here and even as applied challenges, though we didn't put it in those terms, are a little bit beside the point because of the nature of the regulatory structure here. John G. Roberts, Jr.: Is there any other case that you can cite where we've upheld a facial challenge and then later said that an as applied challenge was barred by our ruling on the facial challenge? Paul D. Clement: Well, Mr. Chief Justice, I will answer it, and I... and I think actually-- John G. Roberts, Jr.: Like Justice Stevens, I think that's a yes or no. [Laughter] Paul D. Clement: --Okay. Yes. John G. Roberts, Jr.: What-- Paul D. Clement: Lane and Hibbs. I can't imagine after those two decisions which upheld in facial challenges the statutes at issue there and said that there was not too much prophylaxis for purposes of section 5 of the Fourteenth Amendment-- Anthony M. Kennedy: I... I beg your pardon. I didn't hear the names of the cases. Paul D. Clement: --Lane and Hibbs. Tennessee against Lane and Nevada against Hibbs. I can't imagine after those decisions that somebody-- John G. Roberts, Jr.: --Well, that's a very different question. That's interpreting the scope of Congress's power under section 5 of the Fourteenth Amendment. The issue is whether it's limited to the constitutional violations or sweeps more broadly. If you conclude that it sweeps more broadly, it's not suggesting that an as applied challenge can be brought by someone who's covered by the broader sweep. That's a very different question. Is there any First Amendment case where we've said this is facially valid and then said as applied challenges can't be brought? Paul D. Clement: --I don't think this Court has-- John G. Roberts, Jr.: Well, it would be like in any of those cases where you have a... a broad prohibition and you say, yes, there may be situations where it's unconstitutional, but the statute is valid on its face. And then someone comes in and says, well, my situation is one where it's unconstitutional. We've never said, well, it's too bad because it's valid on its face, have we? Paul D. Clement: --Well, I think the case really hasn't arisen because generally when this Court clearly identifies an area where Congress can regulate in prophylactic terms, somebody doesn't come back in and try to bring the exact same challenge. And if I could give you two examples. If somebody after Burson against Freeman, which you may remember is the case where this Court upheld a 100-foot buffer zone around a polling place... if somebody came in after that decision and said, well, that can't apply to me in an as applied challenge because I only want to stand 90 feet away, I think they would have gotten laughed out of Court because this Court already said that a 100-foot buffer zone was sufficient. I think in a similar way-- Anthony M. Kennedy: Well, it might have been that 90 feet included a public street and you couldn't go down a public street without... so... and so-- Paul D. Clement: --Well, Justice Kennedy-- Anthony M. Kennedy: --It... it does seems strange to me in a speech case to say we're foreclosing as applied challenges. Paul D. Clement: --And... and, Justice Kennedy, please understand me. I don't mean to suggest that McConnell somehow magically jurisdictionally foreclosed as applied challenges. And I suppose if somebody could come in after Burson and give a good reason why their situation is very different, that there's a super highway 90 feet away or that all they were talking about is a bumper sticker on a car, well, then maybe that-- Sandra Day O'Connor: Well, I suppose you can say, yes, you can have an as applied challenge, but this one doesn't meet the test. Paul D. Clement: --Exactly, Justice O'Connor. And again, it's not because it's foreclosed. It's because the reasoning of this Court in McConnell forecloses the decision. John G. Roberts, Jr.: So let's say you had an organization that every month of every year it took out an ad the first week of every month, and it said the same thing and it said, contact your Senators. This issue is important to us. And they do that every month. All of a sudden, their ad's nature changes because an election is... happens to be coming up and it's illegal the month before the election, even though it was clearly something that they did without regard to the election. Paul D. Clement: Mr. Chief Justice, that would be a better as applied challenge. I still think that with respect to the ads in the 30 days before the primary and the 60 days before the... the general election, that corporation could look at this Court's decision in McConnell and say, oh, I understand. Our remedy is not an as as applied challenge. Our remedy-- John G. Roberts, Jr.: If we want to place an ad in October, the solution is to place an ad November through September, and then we're okay. And the only reason we're going to do it November through September is so we can do it in October? Paul D. Clement: --No, no. John G. Roberts, Jr.: That's a pretty broad definition of a sham. Paul D. Clement: No, no. The point would be in October either... do exactly what this Court said at page 206 of the McConnell opinion, either make the ad in terms that doesn't expressly refer to the candidate which, if you're not interested in influencing the candidate election, shouldn't be a problem, or fund that one advertisement through a separate, segregated fund. John G. Roberts, Jr.: But on an issue like this, the filibuster, it's the Senators who are doing it, and their ad referred to not only the Senator who was up for election, but the one who was not. Paul D. Clement: I understand that, Mr. Chief Justice, but I think if you focus in on this particular ad, you will see that whatever the true intent of the advertisers here, this is the kind of ad that clearly would have an impact on the election. I mean, it talks about the... the filibusters in colorful terms, associates them with gridlock and with a state of emergency, and then associates it with a candidate. Antonin Scalia: You think Congress has the power to prohibit any First Amendment contact... conduct that might have an impact on the election? I mean, is that the criterion for whether it... it can be prohibited? Paul D. Clement: No, Justice Scalia, it's not. But I think what this Court very clearly did in McConnell is it rejected an argument that said that the only thing that Congress could regulate is that which was unambiguously targeted at candidate elections. Anthony M. Kennedy: So you think there is a compelling interest in preventing people from thinking about an issue and then calling their Senator during the blackout period. That's the compelling interest that, in effect, you are arguing for. Paul D. Clement: No, Justice Kennedy. What we're arguing for stems from the observation that this Court made in McConnell, which is that when you get up between 60 days before an election and you look at the ads that are run, most of the ads, in fact, are designed to influence candidate elections. It's very difficult to figure out exactly which ones, and there are very serious problems with adopting a very vague intent standard. Anthony M. Kennedy: Are... are Web sites and chat rooms covered by the McCain Feingold? Paul D. Clement: No, they're not, Justice Kennedy. The Internet is not covered. Anthony M. Kennedy: But certainly under your view, they ought to be. If you funded a Web site which was very popular or a chat room, I certainly think it should come within your proscription so that we can't talk about issues during an election. Paul D. Clement: No, Justice Kennedy. I think the fact that there are alternative methods available to communicate these ideas in these ads is a virtue, not a defect with this regulatory structure. And I would like to focus in on these ads because while it is true that-- Anthony M. Kennedy: Well, why... why not? Suppose... suppose most people look at the Web site and they don't listen to the... listen to the radio. I think certainly McCain Feingold should be extended to that under your view. Paul D. Clement: --Well, Justice Kennedy, I... I'm not sure you really do think that... that McCain Feingold should be extended to that. [Laughter] And I do think that this is an area where this Court, in fairness, has recognized that... that any effort to regulate in this area effectively has to avoid three pitfalls. And it's a very difficult task for Congress. It has to avoid being vague. It has to avoid being overbroad. And as your question suggests, it also has to avoid being so under inclusive and easy to evade that it can simply be circumvented in a way that Congress can't achieve its purpose. Stephen G. Breyer: What is the difference with this? I mean, in my mind are possible as applied challenges. Bread for the City. Never supported the candidate, worried about the hurricane in Louisiana. Vote for relief for New Orleans. Write your Senator, Senator X. Organization two. Never supported a candidate one way or the other, but has an issue they're always interested in, and they run ads cycle after cycle after cycle and they don't want to pull them just because October has come along. All right? Now, think of those organizations where I think maybe, sure, maybe they'd win their as applied challenge. And here, you're not arguing it... he doesn't have a right to bring it. You're arguing, of course, he can bring an as applied challenge. He's just going to lose given our rationale. Why? Paul D. Clement: Well, I... I want to be responsive and I think the way to respond is that this Court's decision recognized that these ads were going to be difficult to classify and that you needed some kind of bright line rule and that the consequences of having a bright line rule in this consequence... in this area weren't terrible because there were alternative ways for them to communicate either through a separate, segregated fund which served the issue of the interests of the statute or by avoiding the kind of references that would raise serious questions about tying the ad to a candidate election. And I think if you look at... if... if you want to keep the possibility open of some as applied challenge and you focus on these ads, these are ads that clearly, I think, would implicate the concerns of Congress. Antonin Scalia: What was the bright line rule that... that you think the... the opinion established? I thought the bright line rule was whether it's an issue ad or... or, rather, a phony issue ad. I thought that was the... the line that... that the opinion was trying to... to draw. You... you say that the opinion drew the line between what? All issue ads are out? Paul D. Clement: I think all issue ads that come within the statutory prohibition are permissibly regulable. I think-- Antonin Scalia: No issue ads during the... the blackout. Paul D. Clement: --Sure, you can run issue ads as long as you either fund them through a separate, segregated fund or you-- Antonin Scalia: No-- Paul D. Clement: --omit the reference to the candidate. Antonin Scalia: --Oh, of course, I know. Paul D. Clement: And... and-- Antonin Scalia: And stand on your head. But the-- [Laughter] Within... within the framework of the statute, you think the clear line that is established by the opinion is no issue ads without this special funding during the blackout. You think that's what the opinion says? Paul D. Clement: --I think that this... I do think that is what the opinion says and stands for. And I think this Court recognized-- Antonin Scalia: Why does it speak about sham issue ads? Paul D. Clement: --Well, Justice Scalia, for one thing, I think it's important to recognize that the discussion about sham versus genuine issue ads was really a factor of the fact that necessarily in looking at the record there, what the Court had to do is look at ads that were run in previous election cycles where this regulatory structure wasn't in place and try to classify those ads. And as I understand it, sort of genuine versus sham was a way of capturing whether or not it was an ad that seemed primarily focused on an issue or primarily focused on a candidate election. Antonin Scalia: Why did you say there were 7 percent of these that... that are probably okay? Paul D. Clement: I'm not sure which figure Mr. Bopp is referring to as the 7 percent figure. I don't... I don't remember conceding that 7 percent of the ads were okay. And I think what we very clearly said... and if you go back and look at our briefs, as I did, I think you'll see this. What we very clearly said... and the Court picked up on it in that line on page 206 that Justice O'Connor read earlier... is that whatever was true about a retrospective analysis of ads that were run in an election cycle that wasn't governed by the statute, that in the future corporations could avoid the... the strictures of the statute by simply doing one of two things, either avoiding making an express reference to the candidate, which ought not to be too difficult if you're really just engaged in issue advocacy, not trying to influence a candidate election, or alternatively, you can fund it through the separate, segregated fund. Antonin Scalia: I... I deny the first thing, that it's easy to do issue ads without naming the candidate. The... the point of an issue ad is to put pressure on... on the candidate that you want to vote your way. Without... without telling people to call... not the candidate... the... the incumbent that you want to vote your way... without telling people to call the office of that incumbent, you're not doing very much. Paul D. Clement: Well, Justice Scalia, they didn't even do that in this ad, as has already been pointed out. And if they would have said find out what you can do to stop judicial filibusters, visit [befairDOTorg,] and avoided a reference to Senator Feingold, they could have run this through their general treasury funds. But they couldn't resist the temptation to mention Senator Feingold in this context-- Sandra Day O'Connor: Could they have said in the ad, call your elected representatives, not naming any names? Paul D. Clement: --Yes, Justice O'Connor, they also could have done that. And I think that the very fact that they couldn't resist the temptation to link the filibuster issue to Senator Feingold is not that surprising-- Anthony M. Kennedy: General-- John G. Roberts, Jr.: That may be because the people who were doing the filibuster were the Senators. It's not... it's not a surprising thing to link the Senators to that issue. Paul D. Clement: --Well, and again, Mr. Chief Justice, though, I mean, fair enough, but I think you also have to keep in mind that this is a context where this filibuster issue isn't some idiosyncratic interest of the appellant here. This is an issue that was identified as a campaign issue by the... by... by the candidates opposing Senator Feingold, by the Wisconsin Republican Party, and by appellant's own PAC. And to the extent you're trying to figure out whether this was really designed to influence the pending legislative votes or the election, the timing of this ad strongly suggests it was designed to influence the election. John G. Roberts, Jr.: The fact that it mentions both... the fact that it mentions both Senators strongly suggests to me that it's concerned about the issue because one of the Senators wasn't up for election. Paul D. Clement: Well, Mr. Chief Justice, that gets back to Justice Stevens' question as to whether or not these categories are mutually exclusive. I'm not here to tell you that appellants weren't genuinely issued about... genuinely interested about the filibuster issue. I think they were also, as their political action committee press release shows, genuinely interested in sending Senator Feingold packing. And they had an opportunity to run this ad and effectively get a twofer by naming Senator Feingold. Now, they could have resisted that and only gotten the influence on the... the filibuster issue, if they had taken the-- Anthony M. Kennedy: --And they... and they could have... they could have named Senator Kohl, I take it. Paul D. Clement: --They... they could have, Senator Kennedy. Anthony M. Kennedy: It's such an odd calculus. Who is the person more likely to be influenced with an issue ad? The person who's running or the person who's not going to run for 4 years? Obviously, the former. Paul D. Clement: Obviously-- Anthony M. Kennedy: And that's... and that's the one area where the ad is prohibited. Paul D. Clement: --Obviously, you're right, Justice Kennedy, but obviously, there are concerns that are implicated when somebody is running in cycle and the ad has targeted the electorate in the immediate run up to the election that aren't present there with Senator Kohl and, therefore, the Congress has... has struck a different balance in that case. But just to focus on the timing of these ads, they were run on day 4 of a 45-day August recess of the Senate. Now, that timing, if what you were trying to do, is to influence a pending legislative vote, is very, very odd timing. It could hardly be worse. If, on the other hand, you're trying to influence the upcoming election, the timing of that ad makes a great deal of sense. John G. Roberts, Jr.: Well, if you're trying to influence the Senators who are presumably or possibly in their home State during a recess, that's perfect timing to influence the Senators who are the ones engaging in the filibuster-- Paul D. Clement: I'm not sure I would-- John G. Roberts, Jr.: --without regard to whether they're running for election or not. Paul D. Clement: --With respect, Mr. Chief Justice, I'm not sure I'd pick day 4 of the August recess to do that. Maybe 14 days before they're going back, something like that, would be an appropriate time to catch their attention in a... in a period where they're going to remember it when they go and vote. But I think day 4 of a 45-day recess is probably not when I would pick to start running these ads. I don't suggest, though, the timing factor or any other one factor ought to be dispositive. I think what it goes to show is how difficult it would be to try to get into a fact intensive as applied analysis of these various issues. And all of that presumably would have to be done in the context of TRO hearings and preliminary injunction hearings on the eve of elections. John G. Roberts, Jr.: I've lost track of it. Your... your answer to Justice Breyer's hypothetical about Bread for the City and the hurricane and all that is that that would be an illegal ad? Paul D. Clement: Well, no, I think my answer to that would be that we'd still be here suggesting that that's controlled. I think my answer was also that that would be a far better as applied challenge than the one that this Court has before it. And I think, you know, in... in one sense we make this point in the brief. I mean, contrasting this case with a case like MCFL I think is quite instructive. There, you're not focused on the content or intent of specific ads. You look at the organization as a whole and come up with fairly bright lines. And once you've made a determination about the organization in an as applied challenge, you're done with the issue. Here, the kind of-- Anthony M. Kennedy: So you do... you do an ideological history, an ideological pedigree of various speakers. You think that's consistent with the First Amendment? That... that was the ACLU's suggestion which, it seems to me, shows you how far we've gone down this road. Paul D. Clement: --Well, I mean, that may speak about where the ACLU is going. I don't think it speaks about where this Court is going because this Court hasn't adopted that test. The test that this Court adopted in MCFL would... did not get into that kind of inquiry. What it did is it focused on three relatively bright line factors about whether you accept corporate money, whether you have other sources of income from the corporation, and whether or not you were formed expressly for political views but without any sort of censorship or inquiry into what kind of political views. And that I think this Court has found administrable. Stephen G. Breyer: But-- Paul D. Clement: The FEC administer that. That's-- Stephen G. Breyer: --That's what I want to know exactly. I didn't think... I thought Congress considered this impossible question. I thought that 7 percent figure was from a study, in fact, dozens of studies, where these people who were experts, quote, decided that about 7 percent of the ads like this one distinguishing between really interested in issues or interested in issues but, in significant part, defeating the Senator. In the latter, of course, it's campaign and it's part of the regulation of campaign funds. But they didn't think we could do it. They thought first they could do it, and then they told the FEC to go and produce a set of regs that would, in fact, try to screen out that legitimate 7 percent. Am I wrong about how the statute was supposed to work? Paul D. Clement: --No, you're not wrong, Justice Breyer. And I would say that the-- Stephen G. Breyer: Well, why haven't they done it? And I had thought also that they were supposed to control 527's by having regs or individual cases that would decide whether there was a mix of personnel between the campaign and the 527, whether they talked to people and planned their strategy. Have there been those regs written? Paul D. Clement: --Well, Justice Breyer, let me answer both questions. As to the 527 issue, as I understand it, the commission has decided to proceed on case by case inquiries and has not tried to have a broad regulatory approach yet. Now, on to the issue of electioneering communications, you're absolutely right that there is a statutory authorization to create exceptions. But the regulatory authority of the commission is limited, and it's limited in the sense that they can't approve an exception that would allow for ads that engage... that... that fairly read, engage in promoting, attacking, supporting, or opposing a candidate. And what the FEC has found in practice is that it's very difficult to create that kind of regulatory exception because, as this Court recognized in Buckley and in McConnell, one does not want to naively underestimate the creativity of corporate spenders or political consultants. And if you create a bright line and say, all right, if you do this, that's grassroots lobbying, that's not electioneering communication, they're going to be able to drive a truck through that kind of exception-- Ruth Bader Ginsburg: General-- Paul D. Clement: --unless you're exceedingly careful. Ruth Bader Ginsburg: --General Clement, if you could clarify for me some... a response that Mr. Bopp gave. Did this ad run, was it broadcast or televised before the blackout period? Paul D. Clement: Well, Justice Ginsburg, as I understand the record, the first effort to broadcast this ad was on, I think, July 26th, and that was sort of a few days before the... the cutoff period would kick in. So there was an effort by a matter of weeks to broadcast this ad. But I think, you know, whether one views that as setting the stage for this litigation or being kind of an independent decision, I'll... I'll leave to others. What I think is important, though, is that although they were engaged on this issue before then, up until that point, they had found it perfectly satisfactory to engage on the issue without engaging in broadcast advertisement. Ruth Bader Ginsburg: May I ask you one other thing about the setting? When you went to the Web site to get further information, what was conveyed about Senator Feingold when you went to get that further information? Paul D. Clement: Well, Justice Ginsburg, I... I don't have as good an answer for that as I would like because the... the Web site is now defunct. And so maybe Mr. Bopp can answer that in rebuttal. As I understand it, consistent with what Justice Breyer said, that there was sort of additional arguments about the Feingold record on... on filibusters and Senator Kohl's record on filibusters, and then there was... there was information about how to contact them. But I think, again, as... as Mr. Bopp has said, if... if you don't find the broadcast medium a particularly effective way to convey the phone numbers and you have to reference people to the Web site anyway, the very fact that you could reference them to the Web sites without naming the candidates' names and avoid the strictures entirely seems like the kind of thing that this Court had in mind when it said on page 206 that there were ways to deal with this problem prospectively and that you didn't need a as applied challenge like this one. And again, I think you can't overestimate the difficulties here because-- Antonin Scalia: General Clement, you... you've pointed out the difficulties, but I don't know any other area where we said, well, you know, the... the... when you're dealing with important... important freedoms, important guarantees, where we shrug our shoulders and say, well, the only way to accomplish what the Government wants to do is to ride right... right over those guarantees. I mean, we say, we... we cannot bust up this... this drug conspiracy unless we use warrantless searches. So, you know, whatever it takes. We don't... we don't operate that way. And here, you're... you're dealing with a very fundamental guarantee-- Paul D. Clement: --Justice Scalia-- Antonin Scalia: --the... the right which I think applies to corporations, as well as to anybody else, and for individuals to associate with one another to bring to bear influence on the legislative process. That's a fundamental guarantee. And it doesn't satisfy me to say, well, there's no other way to stop people from criticizing incumbents during... during the election blackout period. Maybe you can't do entirely what you want to do. Paul D. Clement: --Well, I hope that's not the case, Justice Scalia. Let me give you two other First Amendment examples, the first admittedly involving intermediate scrutiny; the second, a strict scrutiny case. The first thing I have in mind is the contribution limits themselves. This Court has fully admitted that it doesn't have a scalpel to probe the difference between $2,000, $1,000, $4,000 as a contribution limit. And it's perfectly willing to admit in its opinions that not every high value donor is going to be involved in an effort at corruption. Yet, this Court approved the approach of the contribution limits, which are hard to understand as anything other than prophylactic limits. Now, that's an example from intermediate scrutiny. Even in the strict scrutiny context, though, a case like Burson, I mean, this Court understood and said in the opinion, we can't tell whether 75 feet would be precisely okay or whether 90 feet or 100 feet. We don't have a scalpel to probe that either. But we're going to approve 100 feet because it's a basic way of dealing with this problem, identifying the area of potential concern, and people can do their electioneering 101 feet away. They can do it here on the 61st day. They can do it through the segregated fund. I think that is an approach that this Court has found acceptable, even in the First Amendment area, in dealing with these intractable problems. And I think Buckley-- John G. Roberts, Jr.: Both of those examples, of course, are quantities, and once you... I think it was Holmes who said, once you admit the necessity of drawing a line, you know, you can always find something on one side or the other. It's quite different between $1,000 and $2,000 or 100 feet and 75 feet and advocacy with respect to an election and advocacy with respect to an issue. It's an entirely different quality of a distinction, it seems to me. Anthony M. Kennedy: And... and the difference... the difference is this is a content based inquiry. Paul D. Clement: --Well but, Justice Kennedy, precisely because you can't engage in just a formless content based inquiry and precisely because there isn't any neat division between issue ads and candidate ads, that is why you need to have a different regulatory approach. I mean, this Court recognized-- John Paul Stevens: I think the real bottom line for the... your opponent is that even a pure election ad should get the same constitutional protection as an issue ad, which is something we've rejected. Paul D. Clement: --Absolutely, Justice Stevens. And of course, an even position one step intermediary from that or one step backtracking from that would be to say that all Congress can do in this area is regulate those ads that are unambiguously election oriented. And, of course, what's the class of those ads? Well, that would be express advocacy. And the one thing that I think is clear from this Court's decision in McConnell is this Court made clear that express advocacy is not a constitutional line. Congress is not disempowered to go after mixed ads that are... yes, they have a component of issue ads, but you bet you they're intended to influence the election. Those ads are what are at issue here, and I think in order to be able to regulate those in a way that makes sense, the key is to regulate in a way that's not vague, that's not overbroad, but is not so under inclusive that it can be easily evaded. And I think Buckley shows how hard that is. It's a tall order. In Buckley, this Court had a provision of FECA that prohibited independent expenditures related to a candidate election. The only way the Court could save that provision from the vagueness concern was to limit it to express advocacy. But having done that, the Court said, well, it's so limited, it's so easy to evade, we're going to find that it fails strict scrutiny. In McConnell, this Court said that in BCRA, after careful study, Congress had actually found out a way to avoid those three pitfalls. All of the proposed alternatives of... of appellants run headlong into one or more of those obstacles. Look at the tests they've proposed. They've proposed looking at 16 factors, 4 details. They disclaim any interest intent, but any of those tests I think would be vague and unworkable. In contrast, they pluck a definition from the IRS regs that is designed to deal with 501(c)(3) corporations in a completely different context or a modification of a proposal by BCRA's sponsors, and they... and they put those tests out there. And those would be very, very easy to evade in practice. In fact, I think if you use some of the tests that they propose or their amici proposed and you look at the body of ads that were before this Court in McConnell, you'd end up finding that a substantial percentage of them were grassroots lobbying. Well, if one thing has to be inconsistent with this Court's decision in McConnell, it's the conclusion that a substantial amount of the ads covered by this definition are unconstitutionally regulated because this Court clearly rejected a substantial overbreadth claim. The one thing I would say in... in closing is to understand that Congress, having sort of voided these very difficult pitfalls of vagueness, overbreadth, and easy evasion, came up with this definition in title II. But as this Court recognized in McConnell, title II of the statute does not stand alone. It is part and parcel of the broader regulatory regime here. And without title II, title I's limitations on soft money contributions to parties will succeed only in taking that soft money and directing it to corporations that are closely aligned with candidates or with the parties themselves. This statutory as applied challenge that you have before it... you strikes at the heart of the McConnell decision and at the heart of BCRA's title II. This Court should reject the invitation to revisit the McConnell decision and should give Congress' effort in this area a fair chance at success. Thank you. John G. Roberts, Jr.: Thank you, General. Mr. Bopp, you have 4 minutes remaining. James Bopp, Jr.: Thank you, Mr. Chief Justice. What this... what plaintiffs are relying upon here is the distinction that this Court has made between lobbying, on the one hand, and political campaigns on the other. As summarized by Justice Stevens' concurrence in Austin, quote, there is a vast difference between lobbying and debating public issues, on the one hand, and political campaigns for election to public office on the other hand. And that is because that the interests that have justified the regulation of corporate electioneering do not apply to corporate-- John Paul Stevens: There is a vast difference, but the question I have is whether Congress has any voice in trying to draw the line that divides the two categories. James Bopp, Jr.: --I think they do, and they drew a line that was upheld on its face because the vast majority of ads-- John Paul Stevens: And... and if we are in a gray area that there's some who could say it's issue and some could say it's electioneering, do we owe any deference to Congress' test that it has drafted? James Bopp, Jr.: --I... I don't think you owe deference to the test. Under strict scrutiny, you owe the fidelity of the Constitution, and the Constitution includes the right to petition. So it is a difficult question. It's fact intensive, as all as applied questions are. Antonin Scalia: So your position basically would say we should take all of these cases on a case by case basis and not give any presumptive weight to what... what Congress has done. James Bopp, Jr.: No. I think that you can draw a rule that relies on objective criteria, just as you have in the Noerr Pennington doctrine, to distinguish between illegitimate efforts to... for predatory anticompetitive practices or monopolies, to distinguish between those and... and... the Court has even used the phrase, genuine efforts to influence Congress with respect to... or any governmental agency with respect to the adoption of laws. That has been based on objective criteria as the Court has explained. You have adopted objective criteria to distinguish lawsuits that fall within the right to a petition or those that were brought illegitimately for anticompetitive reasons. It's not that this is... this exercise is an easy exercise, but it is demanded by the fact that the... the Congress adopted a very broad statute. The only content in this electioneering communication provision... the only content requirement is that you name the candidate. And the reality is that those candidates often are incumbents and they are engaged in law making functions during these election periods. I mean, there is a difference like in Britain. You know, Parliament is dissolved so that there... there is a bright line distinction between an election and Parliament actually exercising governmental power. But when these things overlap and when the Constitution demands the recognition of the right to petition, then that needs to be dealt with in this as applied challenge. Now, there's a vast... there's a huge number of... of lobby groups. They have made a conscious decision that it is more important to them to influence what Government does today than to influence in a speculative and remote manner who is going to be exercising that power next year through elections. Wisconsin Right to Life, in the face of these restrictions, have still decided that it's more important to lobby than it is to advocate the election or defeat of candidates and give money to candidates. The... this is just the reality of our complex Government. It's the reality of the freedoms that individuals have to participate in that Government. It's not just about elections. It's more importantly about law making and citizens have a robust right to participate in that law making power, and as a result, this Court should recognize an as applied exception for grassroots lobbying. Thank you. John G. Roberts, Jr.: Thank you, Mr. Bopp. The case is submitted.

John G. Roberts, Jr.: We'll hear argument first this morning in Case 17-312, United States versus Sanchez-Gomez. Mr. Kedem. Allon Kedem: Mr. Chief Justice, and may it please the Court: An appellate court must have statutory, as well as constitutional, authority for its decisions, and, here, the Ninth Circuit had neither. Appellate review was not authorized under Section 1291, which applies only to district court decisions that are final, nor under the All Writs Act. And because the Respondents' criminal cases had ended long before the court of appeals ruled, their due process claims were accordingly moot. Ruth Bader Ginsburg: On your first point, you -- you didn't mention the collateral-order doctrine. What about that? I mean, that's an exception to the 1291 final judgment rule? Allon Kedem: That's correct. It's a construction that this Court has given to the final judgment rule. We don't think that that applies here, most notably because Respondents' due process claims could be reviewed following final judgment, which is one of the preconditions for application of the collateral-order doctrine. In Deck versus Missouri -- Sonia Sotomayor: Reviewed to do what? Anthony M. Kennedy: But -- but that -- that assumes that the trial would somehow have been affected. It seems to me there may well be a legal violation in shackling people, particularly people with disabilities and so forth, and that doesn't have anything to do with the trial. They're not shackled during the trial. So I -- it seems to me it's a different issue. Allon Kedem: Justice Kennedy, I don't think it necessarily has to affect the trial. Recall here, for instance, that the Ninth Circuit's decision in this case created a split with the Second and Eleventh Circuits, and in both of those cases, there were challenges to the use of physical restraints that came from -- came after the fact. Anthony M. Kennedy: But what are -- the -- the person is convicted and has a -- let's say that he does or she does have an appeal on -- on some different points. And they add: And, incidentally, I was shackled during the -- the pretrial. What -- what difference does that make to the outcome? I don't get it. Allon Kedem: Well, it wouldn't necessarily affect the outcome of the trial, but, for instance, they could have a claim that it affected some part of the pretrial process. They had a suppression motion that was affected because they couldn't contribute to their own defense. They couldn't communicate with counsel. John G. Roberts, Jr.: How did that -- I saw that argument. How can -- how do the shackles affect their ability to communicate with counsel? Allon Kedem: Well, I would refer you to the allegations that Respondents have made throughout this litigation. So they've made allegations, for instance, that there were criminal defendants who were unable to raise their hands and get the attention of their counsel. Stephen G. Breyer: All right. Suppose it didn't. I mean, that's the question you're being asked. I mean, suppose that shackling a person, arms and legs, before -- when he goes before the magistrate does not affect the outcome of his trial where he wasn't shackled. All right? Allon Kedem: So -- Stephen G. Breyer: That's certainly possible. Allon Kedem: Sure. Stephen G. Breyer: The first thing you ask or would be in that case, the appeals court says: What's the prejudice? There's no prejudice to his outcome. Fine. How does he raise the issue? Allon Kedem: The question under the collateral-order doctrine is not whether a particular litigant or even most litigants who want to raise that type of claim should -- are able to get relief after final judgment because they can show prejudice. The question is whether the type of claim by its very nature is one for which a post-conviction -- Stephen G. Breyer: That's not the question I asked you. I asked you, how does he raise the issue? Allon Kedem: I think it would be very difficult in an instance in which there was no allegation that it had any effect on the way that the proceedings unfolded. Stephen G. Breyer: All right. So you're saying if, in fact -- it wouldn't -- I'm being very hypothetical, absolutely hypothetical. I don't believe it would ever happen. But if, by some chance, they have a policy in a court, a federal court of the United States, that people will come in bound and gagged in body armor, hung upside down, okay, you're saying even if that's so, that person in this country has no way of challenging that order. Is that your point? And if that is not your point, what does he have by way of procedure to challenge the order? Allon Kedem: The collateral-order doctrine wouldn't apply, but they could get -- Stephen G. Breyer: I didn't ask you that. Allon Kedem: No, I -- I understand, Justice -- Stephen G. Breyer: I asked you, what does apply? Allon Kedem: They could get mandamus in that case. There would be a clear abuse of discretion. Stephen G. Breyer: If they could get mandamus in that case, why can't they ask for mandamus in this case, where, after all, he has been bound without an opportunity -- they bind everybody, arms and legs? Now you can say: Well, he won't win. I don't know. Maybe he will win. But that's your point, they should ask for mandamus? Allon Kedem: The preconditions for mandamus are, first of all, that you have to show clear entitlement to the writ, which Respondents can't show, in part, because the district court complied with the Ninth Circuit's existing precedent and with precedent of this Court. Samuel A. Alito, Jr.: Wouldn't he have -- Stephen G. Breyer: But is that -- is that definite? I mean, is it -- is it the case that -- that where, for example, nobody ever thought anybody would do anything like this -- Allon Kedem: Well -- Stephen G. Breyer: -- to a prisoner, but they do something really terrible, but it isn't absolutely clear. And now you're saying because it isn't absolutely clear, there's no remedy whatsoever. Is that what you're saying? Allon Kedem: Let me push back just a little bit, Justice Breyer, on the premise of your question. This is something that happens in district courts all around the country. It's a practice in roughly half of the U.S. Marshal field offices. Other field offices use leg restraints at initial hearings. So I -- I don't want to accept the premise that this is something truly exceptional. Stephen G. Breyer: I know -- John G. Roberts, Jr.: But couldn't they -- Stephen G. Breyer: -- but my -- my question is procedural. Allon Kedem: Sure. Stephen G. Breyer: I'm still trying to get an answer. Allon Kedem: So -- so -- Stephen G. Breyer: Many cases are not absolutely clear. And I want to be sure what you're telling me is there is no remedy. Allon Kedem: So, in a case where a litigant can't show or even allege prejudice, I think it would be very difficult to get a remedy. But that doesn't differentiate this claim from any number of hundreds of different decisions that a district court makes throughout the course of litigation, which are very difficult to get review of. Elena Kagan: But, Mr. -- Mr. Kedem, I think that the question that's being asked of you is there are a set of -- of claims, potentially, that would not have anything to do with the outcome of a trial or the outcome of a sentencing or even the outcome of a pretrial proceeding but would implicate a person's interest in liberty. And, you know, whether you want to do, you know, shackling or we've had claims that have to do with forced medication or excessive bail. All of these things arise in the context of a criminal proceeding but don't have anything to do with the outcomes of that proceeding, just have to do with independent liberty interests that are implicated in that proceeding. And what I think people are asking you is it seems harsh to say that there's really no way of presenting those claims. Allon Kedem: So I take the point, Justice Kagan, but that is not the due process interest that Respondents have invoked throughout this litigation. Elena Kagan: I take that point, but it seems as though Respondents have changed their minds a little bit. So, I mean -- Allon Kedem: Sure. Elena Kagan: -- I think that that's the interest that they're now asserting. Allon Kedem: Right. So I would say that nearly everything that a district court does is designed to serve multiple interests, not just adjudicating guilt or innocence, but promoting values such as the autonomy and dignity of the litigants, promoting respect for the judicial process and the rule of law. Samuel A. Alito, Jr.: Could a detainee -- Allon Kedem: If he were able -- Samuel A. Alito, Jr.: Could a detainee in this situation bring a civil action? Allon Kedem: So -- Samuel A. Alito, Jr.: Just as a detainee could challenge conditions of confinement in a civil action? Allon Kedem: I think if what they were challenging was, in fact, just the liberty component, abstracted away from anything related to the way that their criminal proceedings actually unfold, then they might be able to bring a civil suit. And you would -- Elena Kagan: All right. But that seems -- I mean, I don't know another case where we've said that the collateral-order doctrine rides on whether you have a way of bringing the same claim in an entirely separate proceeding. You know, here, something's happening to you in the criminal process, and you're saying, your brief said, oh, no worries, just go file a civil class action. But that seems like a requirement that we've never countenanced before. Allon Kedem: That's correct. But the reason is because no litigant has ever claimed that their claim has nothing to do with the way that their proceedings unfolded -- Anthony M. Kennedy: Well, your answer -- Ruth Bader Ginsburg: Well, suppose -- Anthony M. Kennedy: -- your answer to Judge Alito indicated to me that you have some doubt whether the civil class action could work. Allon Kedem: Justice Kennedy -- Anthony M. Kennedy: Would you agree that if prisoners who were still in the pretrial phase of the proceedings brought a class action, and their case later becomes moot -- brought a civil class action, a civil class action -- and their case later becomes moot, that it would still be an existing class, because new people would be in the class, would the government object to that class action on grounds that it's an improper class action? Allon Kedem: No. Ruth Bader Ginsburg: There's a problem for these people with a class action, isn't there, because they are being represented by the federal defender. The federal defender, as I understand it, by statute may not bring a class action. Allon Kedem: That's correct. Ruth Bader Ginsburg: And these people are not likely to have the wherewithal to hire counsel on their own. So it seems that the class action remedy is more imaginary than real. Allon Kedem: I disagree, Justice Ginsburg. There's no suggestion that they wouldn't be able to get pro bono counsel if what they're challenging is a general district-wide policy. Stephen G. Breyer: Who do they say -- Sonia Sotomayor: I'm sorry, how do they -- John G. Roberts, Jr.: Is it -- Stephen G. Breyer: Who do they say -- John G. Roberts, Jr.: -- do they have an entitlement to attorney's fees? Allon Kedem: Pardon? John G. Roberts, Jr.: Is there an entitlement to attorney's fees if the class action is successful? Allon Kedem: I think that they -- they might be entitled to attorney's fees. John G. Roberts, Jr.: So it doesn't even have to be pro bono counsel, right? Allon Kedem: Not necessarily. Sonia Sotomayor: Counsel, I -- I, frankly, have never heard of a class action that would interfere with the -- with a pending case, as this one appears it might be trying to do. Part of the claim here is that there's an automatic shackling and that district courts are not, pursuant to the -- to the statute, giving individualized consideration to whether people should be released or not. That second issue will not be susceptible to class treatment of any kind. Allon Kedem: That's correct. And the reason that I was somewhat hesitant in referring to the -- to the possibility of a civil suit was I think you have to make sure that what the civil suit is challenging is the general policy and not some case-specific decision. But I took the premise of -- Sonia Sotomayor: So it's only a partial -- it's only a partial solution to this problem? Allon Kedem: That's right. But if the Court is concerned that there's a policy that generally applies that would never have appellate review -- and I took that to be the premise of Justice Kagan's question -- then that's what a civil suit would respond to. Stephen G. Breyer: How? Who do you sue? And -- I mean, it's not a 1983 action. This is federal. Allon Kedem: Sure. Stephen G. Breyer: You sue the individual marshals, there may be an immunity, In re Neagle, et cetera. Allon Kedem: So I think -- Stephen G. Breyer: Who do you sue? Allon Kedem: I think it would be an ex -- Stephen G. Breyer: Do you sue the judge? The magistrate. Allon Kedem: -- ex parte suit against the marshal. And the marshal has -- Stephen G. Breyer: Against the marshal? Allon Kedem: That's right. The Marshals Service has authority, under 28 U.S.C. 566, for maintaining courtroom security. And they're the ones who are applying the policy that's alleged to be unconstitutional. Stephen G. Breyer: Fine, but what is the cause of action? A Bivens action? Allon Kedem: It's a -- it's a -- it's a cause of action, as this Court recognized in Armstrong, directly under the Constitution. Stephen G. Breyer: A direct -- so that's a Bivens action? Allon Kedem: It's -- it's an Ex parte Young type of action. Stephen G. Breyer: So the lawsuit hasn't been brought before. And if it unfortunately, perhaps, or fortunately -- look, the Court has held we're not creating new Bivens actions. Allon Kedem: So -- Stephen G. Breyer: So -- so are you sure that you can bring a Bivens action against the individual marshal? What is it? Allon Kedem: Just -- just to be clear, Justice Breyer, it's not a Bivens action -- Stephen G. Breyer: What is it? Allon Kedem: -- in that you're not seeking damages. It's an Ex parte Young suit. Stephen G. Breyer: An Ex parte Young suit. Great. Thank you. Allon Kedem: That's right, which is relatively well established. Stephen G. Breyer: Thank you. Thank you. Sonia Sotomayor: How strange there -- Anthony M. Kennedy: One more question and you've had a lot of questions. Let -- let's assume that we -- that the Court does hold that mandamus -- mandamus is proper because this is extraordinary and so forth. Then a writ of mandamus is brought and it goes to the court of appeals. And six weeks elapse, but by that time the trial is over. Is it -- is it now moot? Allon Kedem: It's not moot if Respondents keep their criminal cases alive. I refer you back to the Second and Eleventh Circuit decisions. Those decisions were just regular appellate decisions following in one case, there was a guilty plea, in the other case, they proceeded to final judgment after a jury trial. So had Respondents appealed, their cases wouldn't have become moot. The only reason that their cases are moot here is because three of them decided to plead guilty and then not appeal. And then charges were dismissed against the fourth. So there's no reason to assume that there wouldn't be an opportunity for appellate review. I would also note that if this Court is concerned in individual cases that there might be a decision with respect to use of restraints against a particular defendant, and then there would be no opportunity for that defendant to get immediate appellate review, this Court already has authority under the Rules Enabling Act, 28 U.S.C. Section 2072, to issue rules authorizing interlocutory appeals in certain categories of cases. That would be far preferable to creating a new fifth category under the collateral-order doctrine. First of all, this Court could bring to bear the collective wisdom of the bar. It could make sure that the exception was constructed in such a narrow and specific way. Whereas when this Court recognizes a new category under the collateral-order doctrine -- Ruth Bader Ginsburg: You're -- you're suggesting a -- a civil rule amendment to take care of this kind of order that comes up in a criminal case only? Allon Kedem: Well -- Ruth Bader Ginsburg: Let me go back to the collateral -- collateral order, because it seems to me that really does fit this. It's totally to the side of guilt or innocence of the claim. So it's -- it's discrete. I don't see why the collateral order wouldn't -- wouldn't fit. Allon Kedem: So, in response to -- to the first thing that you said, the Rules Enabling Act allows this Court to make rules, not just in the civil context, but in the appellate and criminal contexts as well. But to your question about why the collateral-order doctrine doesn't apply, I want you to imagine, for instance, a criminal defendant who wants to represent himself, and he says: I know that this is not likely to affect the outcome of the proceedings. In fact, I'm willing to stipulate that it absolutely will not. However, I have a liberty, autonomy, and dignitary interest in being able to represent myself, and those are values I can't get back if I'm forced to go to final judgment and appeal after the fact. Samuel A. Alito, Jr.: Is there any reason why we would have to address the question of statutory jurisdiction if there's no Article III jurisdiction? Allon Kedem: No. Mootness would be probably the most straightforward way to resolve the question. Elena Kagan: Can I -- can I just ask you to finish what you were saying? Allon Kedem: Sure. Elena Kagan: I didn't understand. You -- you have this hypothetical. Allon Kedem: Sure. Elena Kagan: And what would we do with a case like that? Allon Kedem: Well, my point is that there's nothing that differentiates the dignitary and autonomy and liberty interests that Respondents are asserting from similar interests that could be asserted. Elena Kagan: I know. But it just left me hanging. Allon Kedem: Sure. Elena Kagan: Because it seems to me that he should have a way -- Allon Kedem: Right. Elena Kagan: -- of -- of getting that claim, you know, thought about. Allon Kedem: I think this Court has recognized that because the final judgment rule has its most ardent application in the criminal context, that it is extraordinarily reluctant to undermine the authority of the district judge to cause disruption, to invite gamesmanship from litigants who want to press pause on -- on their proceedings while they get an appeal, that it is extremely reluctant to allow a mid-stream interlocutory appeal. And remember that Respondents have been conspicuously silent about what should happen during this course of this appeal, whether they have to stop all the proceedings. But if what they're really arguing is that these are interests I can't get back if I'm forced to wait, then it strongly seems to suggest that you would have to halt all the proceedings. And I think it's very hard to imagine a case like Stack about bail claims coming out the same way if every time someone wanted to challenge bail, a denial of bail on appeal, you had to pause the underlying criminal proceedings. There are other differences between the cases that this Court has recognized under the collateral-order doctrine as well. First of all, going to the nature of the right, the right that Respondents have invoked -- and I understand that they've changed their argument a little bit -- but throughout this litigation, they have invoked the right under -- under Deck versus Missouri, which is a right that's grounded in the fairness and accuracy of the underlying proceedings. That's very different from a bail claim. A bail claim, also, as Justice Jackson emphasized in his concurrence in Stack, it's the sort of thing that you never have to stop the underlying proceedings in order to review on appeal. And, it -- it's also distinct from claims like this Court has recognized in Sell versus United States, where the severity of the physical interest was completely different. In Sell versus United States, which concerned the forcible administration of antipsychotic medication, the argument there was it's such a severe intrusion on my personal integrity that you can never order this against my will, no matter what. Whereas, here, Respondents' argument is the same restraints that can be applied against me in the detention center, as I'm being transported to the courthouse, being held in a cell within the courthouse, and being transported to the courthouse door nevertheless have to be taken off of me during the course of my hearing within the courtroom. Now that's a completely different order of magnitude. If the Court has no further questions about the collateral-order doctrine, moving on to the question of mootness, as I said, I think this is probably the most straightforward way for the Court to resolve the case for -- Ruth Bader Ginsburg: How about the voluntary cessation doesn't moot the case -- now this rule is no longer in effect. Allon Kedem: That's correct. Ruth Bader Ginsburg: So -- but there's many situations in which voluntary cessation does not moot a case. Allon Kedem: That's correct. We -- we are not arguing that the case is moot as a result of the voluntary cessation, and the reason is because the policy was ended here as a direct consequence of the Ninth Circuit panel ruling. We are instead saying that the case is moot because Respondents' criminal cases ended, no Respondent took an appeal, and for that reason, there was no live controversy with respect to their due process claims. Now the Ninth Circuit in its en banc ruling said that the reason that the case is not moot is because it was a functional class action. Respondents have entirely abandoned that argument here. They rest instead on the exception to mootness for cases that are capable of repetition yet evading review. Their argument is that some of Respondents are reasonably likely to commit future crimes, to get caught, to be prosecuted within the Southern District again, and then to be forced to undergo physical restraints again. But this Court has consistently refused to allow a litigant to keep a controversy alive by making a prediction of his own future criminality. John G. Roberts, Jr.: Well -- Ruth Bader Ginsburg: What about -- John G. Roberts, Jr.: -- it turned out to be true, right? Two of the four were, in fact, arrested again and did go through the shackling again? Allon Kedem: That's correct, but it was true in cases such as Lane. I think it may have also been true in Spencer versus Kemna. Ruth Bader Ginsburg: What about -- what about Turner, the person who didn't pay, what was it, child support? Allon Kedem: Sure. There were a few differences with Turner. First of all, that was a case involving civil standards of conduct, not criminal ones. Second of all, in that case, there was an allegation that the litigant had an inability to conform his behavior to the required standards of conduct. He was more than $13,000 in arrears on child support payments with no evident means to pay. In this case, Respondents make no allegation that they're unable to prevent themselves from committing future crimes. Furthermore -- Elena Kagan: There -- there is something a little bit different with respect to this crime than most. I mean, this is an illegal entry crime, and I suspect you, in fact, see extremely high levels of recidivism for that crime because people often have their families here. So it's not uncommon that people continue to try to get into the country. Allon Kedem: That's -- that's right. But this Court has never relied solely on probabilities. The point is, in Turner, another distinction is that what was being challenged there was the right of the court to apply those standards to the litigant. In other words, the litigant's argument was you cannot apply civil contempt against me under these circumstances because I don't have a right to an attorney and I have no evident means to -- to pay. Here, there's no argument that the rule prohibiting -- the -- the criminal law prohibiting reentering the country illegally can't be applied to Respondents. That's -- that's never been their argument, and that isn't their argument here. And this Court has consistently be -- been unwilling to assume that litigants will flout laws that they concede to be valid and, in fact, has assumed the opposite is true. Anthony M. Kennedy: Just one -- one -- Stephen G. Breyer: Is -- Anthony M. Kennedy: -- just one -- one small question. On a pretrial motion to suppress, where the defendant's in the room, is he in shackles there? Allon Kedem: He -- he might be. It depends on the -- the district. You're asking under this policy? Anthony M. Kennedy: Right. Allon Kedem: I believe that they would be under this policy. Stephen G. Breyer: You've withdrawn -- the United States has withdrawn the policy. If you win, though, will you reinstate it? Allon Kedem: I think the intention would be to reinstate the policy -- Stephen G. Breyer: All right. Why -- why is it -- if a -- if a person is denied bail and -- by the magistrate and he thinks that was unlawful, what's his remedy there? Allon Kedem: Bail denial under this Court's decision -- Stephen G. Breyer: Yes. Allon Kedem: -- in Stack can be immediately appealed. Stephen G. Breyer: Because it's collateral order? Allon Kedem: It's under the collateral-order doctrine. Stephen G. Breyer: Well, why is this different? Allon Kedem: So I think it's different in a few respects. First of all -- Stephen G. Breyer: You've said -- you've said several times, but if you would just summarize the main reasons why it's different. Allon Kedem: Sure. So, first of all, bail is not a decision about courtroom procedure. By definition, it affects things that happen only outside of the courtroom. And the reason that that matters, Justice Breyer, is because the collateral-order doctrine is based on the premise that there are certain orders that can be decided immediately on appeal without having to know anything about the way that the case unfolds. Stephen G. Breyer: I got that point, but the -- the analogy that I was thinking of is after all, you deny bail, the person's liberty is constrained, he is in a cell. Allon Kedem: Right. Stephen G. Breyer: And, here, the person's liberty is constrained. He is in a shackle. And both are fairly important to him. And -- but the difference, you say, is you can continue with the proceedings. Allon Kedem: So that -- that was the difference Justice Jackson emphasized. There's another difference as well, which is that, for a bail claim, the interest at stake is far more substantial. We're talking about whether the litigant will be -- Stephen G. Breyer: Well, I don't know there. I mean -- Allon Kedem: Well -- Stephen G. Breyer: -- there the person's in a cell and here the person's in physical shackles. Allon Kedem: Right. But the -- Stephen G. Breyer: I -- I'm not sure about that. Allon Kedem: The difference, though, is with a bail claim, you're talking about whether the litigant will be at liberty or behind bars for the entire duration of their criminal proceedings, which could be weeks or possibly even months. Here, we're talking about individual hearings which last minutes or possibly hours. So I think it is a very different -- the difference is -- is pretty significant. And, similarly, we -- we think, the nature of the right is very different. Again, I understand that they've changed a little bit what they're conceiving of the right as, but the right that they've invoked under Deck versus Missouri is a right about accuracy and fairness, and that's very different from the bail right. If there are no further questions, I'd like to reserve the balance of my time. Thank you. John G. Roberts, Jr.: Thank you, counsel. Mr. Cahn. Reuben C. Cahn: Thank you. Mr. Chief Justice, and may it please the Court: When a district court takes the extraordinary step of shackling every defendant at every pretrial proceeding taking place over a period of months, courts of appeals have authority to review those actions under either the collateral-order doctrine or via extraordinary writ. Now collateral order review under Cohen exists because the decisions here conclusively determine an important question that was entirely separate from the merits, having nothing to do with the guilt or innocence of these particular Respondents. And it was effectively unreviewable on appeal from a final judgment. Elena Kagan: Could -- could you speak to the government's view that this is kind of a new theory for you? Reuben C. Cahn: Well, I think the government's simply wrong. From the district court on, we argued this as a deprivation of liberty under the Due Process Clause. The district court chose to address it as a Fourth Amendment violation, but that was not our theory. The Ninth Circuit, of course, decided this as a deprivation of liberty. They're quite clear about that. They talk about Youngberg versus Romeo and that this is a deprivation of the fundamental right to be free of restraints. Now we've talked about Deck because Deck talks about what goes on in the courtroom. And the Court said that in Deck, that right, that liberty interest, protects other rights, including the presumption of innocence, the right to consult with counsel and participate in one's own defense, and, of course, the dignity and decorum of the court and the -- Ruth Bader Ginsburg: But that was -- that was during -- shackling during trial? Reuben C. Cahn: Yes, it was during the penalty phase of a capital case, Your Honor. Stephen G. Breyer: What about their -- Ruth Bader Ginsburg: There was a -- a suggestion by Mr. Kedem that if the collateral-order doctrine were available, that would mean that the criminal proceeding would be stopped in its tracks. Do you agree with that? Reuben C. Cahn: I think that's just wrong. I mean, there's no stay as a matter of right in these cases. In every case, if somebody wanted a stay, then they'd have to make that decision, because, of course, these individuals are individuals not who are detained but who simply couldn't afford bail. So they are in jail while this is happening. And it's up to them to make a decision whether to ask for a stay, and it's up for the district court in the first instance to decide whether or not it's proper, and then the court of appeals in the second instance, whether or not to allow a stay under equitable principles. And I don't think -- if you look at this case, in none of these cases did the individuals ask for a stay of proceedings for just that reason. They were already in jail. Stephen G. Breyer: But the government has said, I think, if I interpret it correctly, that, of course, you have a right to challenge this policy. But there are three ways that you can do it. One way is when you appeal a conviction, the person says: And one other thing that hurt me in this process was the shackle before the magistrate. The second way is, if this is an extreme case, you're entitled to mandamus. But he thinks it's not an extreme case. The third way is you get your client and, with a group of others, you bring an Ex parte Young action, which is actually the most straightforward, and you challenge the policy against the Marshals Service and you say just what you've said. So I guess now my question is going the opposite of where I was, is why not use one of those three? At least if you brought all three, one of them should work because, of course, you should have a method of challenging the policy. Reuben C. Cahn: Well, let me see if I can -- if I can hit those seriatim quickly. So, in the first instance, this Court has said in Arizona versus Fulminante that when one attacks a final judgment of conviction seeking to overturn the -- the final judgment of conviction, the court will do that only for two reasons: One for trial error that occurs in the presentation of the case to the finder of fact, and the other is in cases of structural error having to do with the constitution of the trial process. Deprivation of this right doesn't seem to fit into either of those categories. The second suggestion, I believe, was the class action suggestion. And I note that this Court has never said that the availability of some right -- or some forum to pursue litigation outside of the instant proceeding was relevant to collateral-order jurisdiction or to mandamus, and I'd point to both Stack and Sell as being contrary to that. In Stack -- Anthony M. Kennedy: I don't wish to interrupt the seriatim because -- but are -- are -- is there any doubt that you as a public defender could bring a civil class action? Reuben C. Cahn: It's in my mind quite unclear. Anthony M. Kennedy: All right. Reuben C. Cahn: So I -- and I'm not an expert on civil class actions and it's something that we're just unclear about based upon the statute and the rules. But in Stack and Sell -- in Stack, this Court specifically said that the bringing of a separate habeas action in that case was improper. In Sell, Justice Scalia in his dissent suggested that the forced medication order could have been challenged in another proceeding, an Administrative Procedure Act challenge, to the order of the Bureau of Prisons to medicate the individual there. And what the -- the Court said that wasn't relevant to the availability of collateral-order jurisdiction in that case. John G. Roberts, Jr.: Well, all of these difficulties that you're mentioning, you'll have the benefit in all these that the government has said it's okay, right? I mean, you've made a lot of progress this morning already. The government has said in all of those three instances, as I understand it, that they think this is something you can do. Reuben C. Cahn: Well, I think -- I think they've said that -- John G. Roberts, Jr.: I mean, I know that doesn't mean it's -- it's done, but it certainly makes it a lot easier for you. Reuben C. Cahn: We certainly appreciate that concession and we'd certainly examine the alternatives. But I think it -- it's clear that -- it's certainly clear that we couldn't do this after final judgment, despite what they've said. I -- I think we can do it from mandamus, and I think this is an exceptional case, as this Court has set it out, because every defendant was shackled without any individualized cause in every pretrial proceeding over a period of months. That's hearings that last five minutes, hearings that last many days, through the entirety of their pretrial proceeding. Elena Kagan: But usually when we think about writs of mandamus, it's -- it's not that we give them when an issue is super important. It's that we give them when we think the outcome is super clear. And no one could say that about this case, could -- could they? Reuben C. Cahn: Well, there's two sorts of mandamus that this -- two sorts of -- types of mandamus cases where this Court has allowed or affirmed the issuance of mandamus. One are those cases where there's an absolutely clear rule and the district court seems to be violating that rule. But another species of mandamus is that that the Court authorized in Schlangenhauf and in Mallard and, indeed, I'd say even in Cheney, where there's a fundamental unresolved question about the authority of the district court. And we believe the district court had no authority to shackle all these individuals without making an individualized determination that they presented a risk of violence or escape in the courtroom -- Neil Gorsuch: So, counsel, why doesn't that take care of your problem? Reuben C. Cahn: Well, the court of appeals did, in fact, go forward on the basis of mandamus jurisdiction. And we're perfectly comfortable with that and would be happy if this Court affirmed on the basis of mandamus jurisdiction. Neil Gorsuch: So mandamus is -- is available you think in these circumstances? Reuben C. Cahn: Yes. Neil Gorsuch: And not a problem? Reuben C. Cahn: We think it's -- it's a viable route to get review of these matters. Ruth Bader Ginsburg: Did the -- did the three judge panel -- they didn't -- they didn't go on mandamus, did they? Reuben C. Cahn: No, there was established precedent in the Ninth Circuit that collateral-order jurisdiction existed to review this sort of claim, and the Ninth Circuit found -- and the Ninth Circuit panel found collateral -order jurisdiction. The court of appeals said that: We're going to leave that precedent undisturbed, but because we're not going to address the individual shackling decisions, we're only going to address the policy, we see mandamus as a better route to get at that. Neil Gorsuch: Counsel, the -- the government suggests that the functional class action theory to get around the mootness problem you've abandoned. Is that a fair characterization? Reuben C. Cahn: So I -- I don't know that I'd say we've abandoned it, but we fit squarely within a very clearly established exception to the mootness doctrine, that this matter is capable of repetition yet evading review. Neil Gorsuch: Well, before we get to that, if I could just -- if you haven't abandoned it, I don't see it briefed. So what am I supposed to do about that? Reuben C. Cahn: Well, I think this Court's free to affirm on the basis of the Ninth Circuit's opinion without our briefing on the issue. Neil Gorsuch: Do you think it's right? You haven't defended it. Reuben C. Cahn: Well, this Court did something very similar in Richardson versus Ramirez where there was no certification of a class action and the Court found that wasn't essential to Article III jurisdiction. But because we have a simple, clear route, we don't want to ask this Court to break new ground for us. So -- Neil Gorsuch: Okay. That -- that's helpful right there. Thank you. Samuel A. Alito, Jr.: But you have a decision from the en banc Ninth Circuit saying that this case is not moot based on the fact that it is a functional class action. Reuben C. Cahn: Yes, Your Honor. Samuel A. Alito, Jr.: And it's pretty remarkable that, whether you've abandoned the -- the point or not, you certainly have not made any effort to defend it. Reuben C. Cahn: That's correct, Your Honor. Samuel A. Alito, Jr.: What does that say about this theory, which is adopted by the -- the en -- an en banc court of appeals? Reuben C. Cahn: Well, as to us, it says that we're more comfortable staying within a firmly established exception to mootness that this Court has ruled on many times. Ruth Bader Ginsburg: But it -- it isn't, because capable of repetition, evasive review, I don't know of any case that has allowed: I'm going to do it again, that I'm a recidivist, therefore, I mean, it will be evasive of review because I'll do it again and again. I don't know any decision that allows you to say: I will commit the same offense again, therefore, the case isn't moot. Reuben C. Cahn: Well, let me note that in Gerstein in Footnote 11, this Court said that pretrial detention is necessarily brief, speaking to the individual named plaintiffs, so that no one individual would have an opportunity to fully litigate their claim. And yet the individual could suffer repeated deprivations, making the matter capable of repetition yet evading review. So this -- beyond that, I'd point that -- point out that the Article III personal stake requirement is no different for a criminal defendant than a civil plaintiff or a civil defendant. And what this Court has always looked to is whether there's a reasonable expectation or a reasonable likelihood as a factual matter based upon the facts in the particular case involving the particular litigants. It's not a rule that's intended to control the conduct of litigants outside of the courtroom. It's simply a rule that allows this Court to determine whether or not there remains a live controversy that can be appropriately decided in this Court. Stephen G. Breyer: So we're -- at the moment, it's very interesting and helpful, but I'm thinking if we -- if we -- if we go with you on mootness, I don't know what door that's opening up because it's really not moot because there are other people that will be subjected to it, not your clients. Then I'm thinking: Well, if we go on the mandamus, I'm going to hear just what I heard, that there are a bunch of districts that have this and it isn't as far out as my imaginary example. And then, if I go on collateral order, I'm going to run into the problem that we just said, that this would delay the proceeding rather than his like being in bail. And then they say: But bring an Ex parte Young action, that's fine. And -- and how long would that take? I mean, you find five people down there who are going to be subject to it, and you go into court, we already have the orders, and there we are, we win. Okay. How -- how long -- I mean, is it -- am I thinking -- you don't think I'm thinking correctly on this. And I guess I want to know what -- Reuben C. Cahn: No, no, I think in a sense you're right that the government's argument is really that there is no way to ever obtain -- Stephen G. Breyer: No, no, they say Ex parte Young. Reuben C. Cahn: They say that, but, you know, the truth is that doesn't obtain review of the decisions to shackle these individuals in their cases. And, of course, this Court has already said -- I mean, speaking of O'Shea, this Court said in O'Shea that it's certainly not a favored course of action to enter injunctions that will interfere with the conduct of criminal cases. In the normal way, the appropriate way of reviewing decisions in individual criminal cases has always been through appeals in those individual criminal cases. Samuel A. Alito, Jr.: What is the difference between -- what -- what is the difference between a case involving allegedly unlawful shackling when a person is brought to a proceeding in court where there is no jury, on the one hand, and a case involving, let's say, allegedly unconstitutional shackling while in the jail? Reuben C. Cahn: Well -- Samuel A. Alito, Jr.: In -- in the latter case, would that fall within the collateral-order doctrine? Reuben C. Cahn: No, I -- I don't believe so because courts don't make decisions in criminal cases about what happens in detention centers. Courts do make decisions about how individuals come before them, about how they're presented in a public courtroom where they -- Samuel A. Alito, Jr.: Well, I mean, insofar as there -- there are two possibilities for your claim. One is that it has some effect on the criminal case. And if that's the claim, then that does not fall within the collateral -order doctrine because that could be reviewed after a conviction. But if the claim is, irrespective of any effect on the criminal case, this is a violation of my constitutional rights because it violates a -- a liberty interest, a dignitary interest, then explain to me what is the difference between those two situations. It's just the happenstance that one occurs in court and one occurs across the street in the jail? Reuben C. Cahn: Well, we think the fact that it occurs in court is meaningful. I mean, it is -- you know, we -- we believe the courtroom really is a sacred space. We believe judges control that space and -- and assure that individuals come before the court with dignity and with autonomy and with their liberty interest protected, and that there was a well-established right at common law that, under this Court's precedents, is incorporated in the Due Process Clause to appear before courts free of bonds. And this happened regularly at the common law, individuals would come from prison -- from Newgate prison, terrible conditions, shackled hand and foot, and without question, their bonds would be struck off for their arraignments. John G. Roberts, Jr.: Well, there is the countervailing interest, which, of course, is the safety of those in the courtroom and the safety of the judges. And your scenario of the person coming in from Newgate, I -- I understand, that's one individual. Here, according to the -- the -- the record from the marshals, you have many situations where there are a lot of people, and the idea that they're going to undertake an individualized determination in every case is just something that they don't have the resources or time for. Reuben C. Cahn: Well, I disagree and I think that the record here shows that not to be the case. I mean, so for nearly 50 years of the district's existence, this procedure was followed. It's the procedure that's been followed since May of 2017 in the district that individuals come to court, that if the marshals have a reason to shackle them, they -- usually, what happens today is that they come and they tell the lawyer: We're going to bring your client out in shackles for these reasons, and the lawyer can either decide to challenge that before the judge or not as they choose to. So this procedure has worked through, you know, centuries of common law -- John G. Roberts, Jr.: Well, but there are situations where in term -- for pretrial decisions, you do have more than one person. I mean, there -- there are -- according to what the marshals say, there are many people in the courtroom, or waiting to get in the courtroom, and presumably, in many cases, the lawyer is going to say: I don't want the client to be shackled. And then you have to have an individual determination, right, where the -- the -- the -- the assistant U.S. attorney, whoever it is, comes in and says: Well, here's why we think you should. And the lawyer says no. And then the judge has to make a decision on that -- Reuben C. Cahn: Well, it's -- John G. Roberts, Jr.: -- for every one of however many people are there. Reuben C. Cahn: So it's just not a why he should or why he shouldn't. It's that there's evidence, or there isn't, that the individual presents a danger of escape or violence in the courtroom. All I can say is this is done day in and day out and it's done without a problem. In some districts, for instance, the District of Arizona, particular procedures have been adopted to address these matters before the individual first comes to court. In other districts, like ours, the matters are dealt with in court, where necessary. John G. Roberts, Jr.: Well, I suppose -- I suppose there are many situations where people don't know much about the individual, right? The situation we have here where, for example, there are many people -- like the recidivist clients, obviously, you know something, but they arrest somebody and bring them in and the question is should they be detained, and they don't know anything about them. Reuben C. Cahn: Well, in -- in our district, they know quite a bit about them by the time they get to court. In our district, individuals don't come straight to court. They go to the MCC. They're interviewed about social issues, which include gang history, that sort of thing. They meet with pretrial -- with pretrial services, which runs a criminal history check. They're strip-searched. So, by the time people actually get to court, they know quite a bit about them. But I'd say also that that's reversing a little bit the presumption of the common law. The common law presumes that individuals won't be shackled unless there's cause. And so it's for the marshals or the government to bring up that evidence of cause. And I think they've been able to do that where it's been appropriate, that the individual is acting out in the holding cell, that the individual in the course of his arrest was violent with the officers, that the individual has a mental illness that makes him in some way more likely to be violent, some particular examples of it, not just that they're mentally ill. Sonia Sotomayor: Of the -- what are there, 99 districts in the country? Reuben C. Cahn: Yes. Sonia Sotomayor: How many of them have had a shackling policy similar to this one? Reuben C. Cahn: So we don't know that with certainty. The record evidence in this case pertains only to the southwest border and the Ninth Circuit, and some of it was disputed. But what's clear is that the courts along the southwest border from Texas through Arizona had this policy prior to 2013, and then the Southern District of California instituted that policy in 2013. The -- Sonia Sotomayor: Is it fair to say that that's a small percentage compared to the whole? Reuben C. Cahn: Certainly, it seems that way to me based upon the record we've got. Sonia Sotomayor: And in -- in the whole, the individualized determinations are made? Reuben C. Cahn: Yes. I mean, certainly, that's my understanding of many -- from surveying my fellow defenders, that that's the case in many of the districts around the -- John G. Roberts, Jr.: You have a higher -- a much higher volume of people, don't you, in those -- that part of the country than elsewhere? Reuben C. Cahn: We do, indeed, Your Honor, but we've had that same high volume for pretty much the entirety of -- well, I shouldn't say the entirety of the history of the district, but certainly from the '70s on. Stephen G. Breyer: Is this -- What's the difference -- Anthony M. Kennedy: Can you address the question about capable of repetition yet evading review? It's very difficult for this Court, as a matter of the dignity of the law, to say that, well, we're going to presume there's going to be another violation. We understand that with the aliens with the families, that they have this strong temptation to try to come in anyway. But it's very difficult for us to write an opinion, oh, he might violate the law again. Reuben C. Cahn: Well, let me be clear, we're not asking the Court to presume anything, and that's simply because the most likely evidence that something can happen is that it has happened. The most likely evidence that something -- or the most probative evidence that something is likely to reoccur is that it already has. And this dispute between Respondents and the government has already repeated itself, so it's not merely a probability, it's not merely a presumption or an assumption, but there's actual facts that show it's likely to reoccur. Elena Kagan: But -- but that suggests if I look at somebody and he has a very, very, very long rap sheet, I'd say, well, you know, he clearly does this every month, he's just going to be here again, and give him a different rule from somebody who's a first offender. Reuben C. Cahn: Well, the Court has always said that in applying the capable of repetition yet evading review exception, the court looks at the individual case and the individual litigant in determining whether or not it's likely to repeat itself. So the Court isn't creating some rule for all criminal cases in some way, courts looking at these cases. I mean, let me note there's also one other Respondent who I think is relevant to this consideration because the government's made the argument, though I think it's wrong, that both Mr. Smith in Honig versus Doe and -- and -- and Mr. Turner in the -- in the Turner versus Rogers were unable to avoid coming back in -- into that situation. But we have an individual here, Mr. Ring, the Respondent, the disabled Iraqi combat vet, who has chronic and severe PTSD, causing him to overperceive and overreact to threats, and it's as a result of that that he came into conflict with the VA, where he lives in a VA home and relies on the VA for services. So I think there's also that individual who is likely to come into that same conflict. And the other thing I'd point out is that these individuals, when they come back into court, they are indeed presumed innocent. So the government says we're asking you to say that they are going to commit new crimes. No, we're asking this Court to find that it's reasonably likely, reasonably expected, that they may find themselves in the Southern District of California as a defendant -- Stephen G. Breyer: Go back to the merits for a second. I'm just curious, because I did have to write this case of the shackling before. Reuben C. Cahn: Yes, Your Honor. Stephen G. Breyer: And -- and there's a full page, more than a page, of citations that are not simply from Blackstone, but almost all of them are from American courts, and the conclusion is trial courts -- that what they show, for like a century, is trial courts may not shackle defendants routinely but only if there is a particular reason to do so. Reuben C. Cahn: Yes. Stephen G. Breyer: Now were those all jury cases? I don't remember. Were they all -- I mean, I know that there's a magistrate here and it isn't a -- it isn't a district court judge, but magistrate judges are in courtrooms. But did all those cases involve juries? Do you know? Reuben C. Cahn: I -- I -- I don't know with certainty, and I don't want to answer, Your Honor. I would point out, though, that this shackling occurred not only before the magistrate judges in the initial proceedings but before district court judges in substantive motion hearings and evidentiary hearings. So it went on. Stephen G. Breyer: Do you know if Blackstone was, in fact, just talking about jury cases or if -- Reuben C. Cahn: It -- Stephen G. Breyer: -- Blackstone was talking about cases in courtrooms? Reuben C. Cahn: Well, I think it's clear that Blackstone wasn't talking just about jury cases. The very quote that's mentioned in Deck comes from his chapter of arraignment and its incidents. And it talks about the arraignment, about coming into court, being called to the bar, asked to state one's true name, and being informed of the charges and asked to plead. And Blackstone states the rule was that individuals were to appear free of bonds and fetters, absent some evidence that they were a risk of escape. Anthony M. Kennedy: Is it your experience that there's shackling during a pretrial motion to suppress? Reuben C. Cahn: There was shackling at every proceeding, Your Honor, with the exception of one district judge. One district judge out of 30 magistrate and district judges chose not to shackle anyone in her courtroom. Every other district judge, every other magistrate judge, shackled individuals. Sometimes there would be partial relief in -- in motion hearings where people would have, you know, handcuffs taken off. But on the whole, five-point shackling was the rule in every court. And you can see that in some of the examples in the record and in our briefs where, for instance, the district court judge who says: I've got a lot to do today, I don't have time to make individual determinations, that's a district court judge talking about what's going on in his courtroom. The woman in the wheelchair who we talk about in the brief in dire and deteriorating condition, that occurred in district court, not in the magistrate court, Your Honor. Samuel A. Alito, Jr.: I mean, suppose the rule -- Anthony M. Kennedy: In the Central District of California, does this policy prevail, do you know? Reuben C. Cahn: Well, it prevails nowhere in the Ninth Circuit any longer. But in the Central District -- Anthony M. Kennedy: Before the state. Reuben C. Cahn: In the Central District of California, there was a policy of using leg shackles only in the initial appearances only, and that was the Howard case, which was the begin -- the first litigation ever concerning shackling that established the right to collateral-order jurisdiction in the circuit on -- over these matters. Samuel A. Alito, Jr.: If -- if there is no rule, there's no blanket rule, but an individual district judge orders that a detainee be shackled, do you think that could be contested via the collateral-order doctrine? Reuben C. Cahn: Well, I think the only thing before this Court is a complete denial of an individual determination on the basis of violence or risk of escape. And so that is clearly a due process violation and subject to the collateral-order doctrine. The Court did say in Stack that there's a distinction between the discretionary calls that a judge makes in setting the amount of bond versus the refusal to reduce an excessive bond. And so the Court could -- could -- could construct the jurisdictional rule in that manner. Samuel A. Alito, Jr.: But here there could be -- you could get an individualized determination, could you not? Couldn't -- I -- I thought under this rule any judge could order that the shackles be removed. Reuben C. Cahn: Any judge could order that the shackles be removed, but no judge made an individual determination on the basis of danger or risk of escape. And we asked for it many times and were told again and again and again you're not going to get that, you don't have a right to that. Some judges said we'll consider medical extremity in determining whether or not we'll remove shackles in whole or in part. But the record is really clear and the Ninth Circuit en banc found that there was really very little variance and there was no individualization in a meaningful way, that this was a blanket -- Sonia Sotomayor: Counsel, going back to what the Ninth Circuit said in their majority opinion, they didn't deal with the mootness issue except through the class action argument. Reuben C. Cahn: That's correct, Your Honor. Sonia Sotomayor: They do state in their opinion, however, the principle that was mentioned earlier, that we generally don't presume in their case law that someone will commit a criminal act. The government points to that -- Reuben C. Cahn: So -- So -- Sonia Sotomayor: -- in saying, absent the class action mechanism, you really can't get past that circuit case law -- Reuben C. Cahn: So -- Sonia Sotomayor: -- if -- if -- it seems to me that shouldn't we let the Ninth Circuit figure that out? Reuben C. Cahn: Well -- Sonia Sotomayor: If we don't accept the class action mechanism they use -- it's a big but, it -- hypothetically, if we don't accept that, shouldn't we just remand and let them decide whether this is capable of repetition or not? Reuben C. Cahn: So I -- I certainly think that this Court has done that in the past in its appropriate course. What's -- what happened here was that no one in front of the court of appeals contend -- contended that the matter was moot because the Respondents had lost their personal stake. And so the Ninth Circuit was never made aware of the underlying facts, including many facts that are in the record, there -- all of the facts concerning Mr. Ring and Mr. Sanchez-Gomez are in the record, but they weren't litigated, they weren't brought before the court, because neither the government nor we contended that Respondents had lost their personal stake. And it just wasn't discussed. So it would certainly be appropriate to remand to the Ninth Circuit for them to make an initial determination. The other thing I'd say is I want to come back a little bit to O'Shea and the government. The government's pushing very hard on the idea that this Court has said that it's never appropriate to consider the possibility that an individual will come back into court in a criminal case. And the Court has never said the doctrine doesn't apply in criminal cases. And, in fact, the language in Gerstein is directly to the contrary of the rule, the new rule that the government is suggesting this Court adopt. Samuel A. Alito, Jr.: And do you think we could say: Well, we don't know whether we have jurisdiction under the Constitution, but we're going to write an opinion on various other interesting legal issues that are presented in this case? Stephen G. Breyer: No. Reuben C. Cahn: No, I don't believe so, Your Honor. I don't believe that's possible. Let me -- Elena Kagan: May -- may I ask something? It might -- it's probably not legally relevant. I'm just curious about it. At -- at -- at some point, why didn't one of the lawyers in your office pick up the phone -- there are a host of organizations that I can imagine bringing a suit like this one outside of any individual criminal case -- why didn't that call get made to one of those organizations? Reuben C. Cahn: Well, there's no evidence in the record about this, Your Honor. But since -- if I might, there -- there has been -- we've had this and other issues that have come up where we felt that it would be appropriate to litigate them through class actions, many of which have never led to challenges because we thought they could only be brought through class actions or civil litigation. And the -- the lawyers, the resources just aren't there to bring those cases in San Diego. It's that simple. John G. Roberts, Jr.: Thank you, counsel. Mr. Kedem, you have six minutes remaining. Allon Kedem: Thank you. I have a number of individual points, but I think it's worth pausing to just acknowledge the breadth of Respondents' argument. Respondents' argument is that every single decision to use restraints in any criminal case, and possibly other case management decisions as well, can get an interlocutory appeal, that compliance with circuit precedent by a district court qualifies for mandamus relief, and that, under Article III, a litigant can point to his likelihood of committing a future crime in order to keep his case live. Starting first with the question of mootness, my friend several times brought up Gerstein as an application of the exception for cases capable of repetition yet evading review. It was not. Gerstein was based on the fact that there was a certified class action there. There is no certified class action here. It makes a difference because a class has its own interests that continues even after the individual litigant's is over. Respondents have said that it's just a prediction based on general likelihood, probability, that a future crime will be committed. This Court has never relied on those sorts of predictions and in cases like O'Shea, Lane, and Spencer, has explicitly said that a prediction of that sort is not permissible. Finally, he brought up Mr. Ring. At no point during this litigation, not even at the merits stage before this Court, has Respondents ever suggested that Mr. Ring is likely to commit another crime. Going now to the question of the collateral-order doctrine. Justice Kennedy, you have several times asked a question: Couldn't you have this -- this issue come up in the context of a suppression ruling? The answer is yes. And that would survive final judgment. That could be challenged on appeal, even if the litigant was convicted or even if he pleaded guilty. So there's no reason why you can't challenge that as a result from final judgment. Moving next to the question about Justice Kennedy -- Sonia Sotomayor: Assuming your district, like most, doesn't have a waiver of appeal rights with all of their plea agreements. Allon Kedem: It's routine -- Sonia Sotomayor: Which it's routine to have the -- Allon Kedem: Sure. Sonia Sotomayor: -- the waiver, which means this issue is not likely. Allon Kedem: Well, it's routine for litigants to preserve suppression objections and to challenge that on appeal. That's something that happens all of the time. And there's no reason that that couldn't happen in a case where someone alleges, for instance, that they were unable to contribute to their own defense, that they couldn't write notes or get the attention of their attorney, as Respondents have alleged here. Justice -- Justice Kagan, you asked about whether this was a new theory. And my friend said we've been arguing all along that there's a liberty interest. That is completely true. But it's a liberty interest within the context of the common law right under Deck versus Missouri, which is the right that they've been invoking throughout this litigation at all stages, including before this Court. There was a question about whether this is truly an exceptional case sufficient to justify mandamus. We did a survey of U.S. Marshal field offices, and our understanding is about half of them use restraints at all initial appearances, about 150 out of the 300 field offices. Another 100 or so -- Ruth Bader Ginsburg: Is that -- is that five-point restraints? Allon Kedem: That's full restraints. It's both wrist restraints and also leg restraints. Another 100 or so use only leg restraints. And then about 50 field offices don't have any restraints at initial appearances. So the Ninth Circuit is actually very much the outlier here. Furthermore, my friend brought up the idea -- brought up the Schlagenhauf case. In Schlagenhauf, the argument was that a type of order that had never been issued before, an order requiring the criminal defendant to undergo a battery of psychological and mental examinations, that -- Ruth Bader Ginsburg: It was a civil case, wasn't it? Allon Kedem: That was a civil case. That was a mandamus case. And, Justice Ginsburg, as you might be pointing to, this Court has never recognized an appropriate use of mandamus in a criminal case where the order sought to be challenged was not the functional equivalent of a dismissal. Finally, back to the collateral-order doctrine. The doctrine is a balancing of interests. Everyone recognizes that it is useful in certain cases to get an immediate appellate ruling to deal with a particular legal issue. But we also recognize that it can come at a very steep cost. It's incredibly disruptive, it invites gamesmanship, and it undermines the authority of the district judge. We're talking here about a type of order, the use of restraints, that happens hundreds of times in district court cases all around the country. And because they're trying to abstract out the part of their argument related only to dignitary interests or autonomy interests, that argument can't be cabined. It could apply to essentially any decision that a district court makes regarding some sort of trial procedure, as long as you can claim there's no way that it's likely to prejudice me. Usually, the assumption is opposite -- the opposite, that appellate review is there in cases where there is prejudice, and we don't want to change the rules merely because a litigant can claim that there is no prejudice. Stephen G. Breyer: Can you say -- I don't know -- but can you say if the government would -- I don't want to put cooperate, that's too strong -- but at least would not oppose an effort in any of those 150 districts by a defense attorney's organization to try to challenge this policy, either through, as you suggested, an Ex parte Young proceeding or, as you also suggested, an ordinary appeal where they haven't waived the right to appeal and it says explicitly like reserving the -- the suppression motion, we reserve the right to challenge the restraint motion? Allon Kedem: Well, starting -- Stephen G. Breyer: Now -- now -- there -- yeah? Allon Kedem: So starting with the last part of your question -- Stephen G. Breyer: Yeah. Allon Kedem: -- the government didn't in Zuber or LaFond, which were the Second and Eleventh Circuit decisions that were from final judgments, didn't contend there that it was improper for the litigant to argue that they had been improperly restrained in those cases. With respect to your question about the civil suit, I can say only that the government would not oppose it in an appropriate case. John G. Roberts, Jr.: Thank you, counsel. The case is submitted.

Warren E. Burger: We'll hear arguments next in 1105, Herbert against Lando. Mr. Lubell I think you can safely proceed now, and be heard. Jonathan W. Lubell: Mr. Chief Justice and may it please the Court. This is an appeal from a decision of the Court of Appeals for the Second Circuit, reversing a discovery order of the District Court and establishing an absolute privilege of non disclosure of the editorial process. This is a Sullivan defamation case. It arises from a CBS 60 minutes program, produced by Barry Lando and Mike Wallace. In that program, the plaintiff Colonel Herbert, was portrayed as a liar, as one capable of committing acts of brutality in Vietnam, as an opportunist who had used the war crimes charge to cover up his own relief from command and is a perpetrator of a hoax on the American public. Plaintiff after the broadcast, brought the libel action which is now before this Court. During the course of pre-trial, plaintiff sought to discover what the defendants had done and learned in the course of their investigation preparing for the program, and what the defendant's state of mind was on the matters which they had investigated and learned about during that investigation. Questions were posed within that context to Mr. Lando and Mr. Wallace, as to what their state of mind was, as to matters actually presented on the program, as well as matters not presented on the program, and contradictory to the matters presented on the program. William H. Rehnquist: Counsel, you say their state of mind as to matters? Jonathan W. Lubell: Yes. William H. Rehnquist: Could be a little more precise for what issue were you directing would those answers have been relevant? Jonathan W. Lubell: Yes. The issue -- the legal issue we were directed to was the issue of the subjective state of mind of the defendant's, whether there in fact they entertained that serious doubts as to the truth of matters presented on the program. Specifically it evolves in various contexts. For example, during the deposition of Mr. Lando, we ascertained that he had interviewed, in one example, a group of five different soldiers and who had served with Colonel Herbert in Vietnam. Four of those soldiers told him certain things about Colonel Herbert's treatment in regard for the Vietnamese population. A fifth soldier told him a contrary story. Mr. Lando presented on the program only the statement of the fifth soldier, and failed to include on the program any reference to the statements of the four other soldiers which indicated the care and concern that Colonel Herbert had shown while he served in Vietnam. Warren E. Burger: One of this is directed at what, at the presence or absence of malice? Jonathan W. Lubell: Yes, it is. Warren E. Burger: That should be our focus, should it not? Jonathan W. Lubell: Within the absence of actual -- presence or absence of actual malice within the reckless disregard branch of that actual malice definition. William J. Brennan, Jr.: As this Court has developed that -- You mean that there was no inquiry on the other arm of knowing falsehood? Jonathan W. Lubell: We had -- the knowing falsehood issues, we have asked questions of Mr. Lando regarding knowledge of certain things which were directly contrary to matters presented on the program, which indicate a knowledge of the falsehood of certain malice. In fact Mr. Lando has answered those questions. The concrete posture of the questions which have not been answered is all of those questions appear to involve the reckless disregard branch, although our same argument would apply to his state of mind on the knowledge of the falsity. William J. Brennan, Jr.: Yes, but are you telling us that he did answer questions directed to knowing falsity of some of the things that were shown on the program? Jonathan W. Lubell: He answered questions. William J. Brennan, Jr.: But can you illustrate, for example? Jonathan W. Lubell: He answered questions for example, during the -- on the program Mike Wallace stated that nobody that they interviewed could told them that Colonel Herbert had reported any of the war crimes while in Vietnam. He produced during the depositions, sworn statements of a Captain Jack Donovan, which stated that Captain Donovan was present at Brigade Headquarters when Colonel Herbert was reporting the killings of the Vietnamese at Cu Loi on February 14, 1969. He produced those documents. We asked him questions about those documents. We did not specifically ask the question, did he know that what was stated on the program was false? So that question is not before the Court as such. In terms of questions that he did answer during the deposition, Mr. Lando as well as Mr. Wallace did answer a number of questions involving their state of mind. In addition, I should point out to the Court that the case -- William J. Brennan, Jr.: Can you illustrate just that? Do you have one? I don't want to take all your time, but -- Jonathan W. Lubell: Yes, yes. For example, as to the question -- as to the questions of whether there was a conflict in the in his -- in what he had obtained from interviews between a colonel and a major who were in Hawaii early in February -- William J. Brennan, Jr.: Are you speaking now of Mr. Lando? Jonathan W. Lubell: Yes, Mr. Lando -- in terms of he had interviewed a Colonel Nicholson and a major who had been in -- a Major Crouch -- who had been in Hawaii. And one of the questions that was involved is, when did Franklin return from Hawaii to Vietnam? Questions were asked in his interviews of these two people about -- when Mrs. Franklin had left Hawaii. I asked Mr. Lando whether he thought there was a conflict or contradiction between the information he got from these two interviewees. He said that he thought that their statements regarding Mrs. Franklin's leaving Hawaii were contradictory. So he did give us certain answers regarding his state of mind. There is no consistency as to which answers he didn't give regarding his state of mind and which he did not. Perhaps the only consistency is that, as the deposition proceeded, Mr. Lando's counsel and counsel for CBS decided to take a firm position that they would answer no questions regarding state of mind. John Paul Stevens: Mr. Lubell, could you give us perhaps the most persuasive example you can think of, of a question that you asked and that he refused to answer? One of the things I have trouble with in this case is, it's awfully general. Jonathan W. Lubell: Yes, yes. The questions, for example -- the example that I posed before, he had interviewed a number of soldiers who had given him detailed information as to Colonel Herbert's treatment of the Vietnamese. He puts none of that information on the program. He does not refer to the fact that there was information that Land -- that Colonel Herbert had shown particular care that war crimes not be committed in Vietnam. We asked him questions as to the basis upon which he did not include any reference to those interviews in his program, and nevertheless included a quote from General Barnes that Colonel Herbert was -- John Paul Stevens: Specifically, you question in -- is this a fair paraphrase? Why did you not include any reference to such and such an interview and he refused to answer any such questions? Jonathan W. Lubell: Yes, what was the -- actually, we didn't say why [Attempt to Laughter] -- we said, what was the basis for not including the -- any excerpts from those interviews? John Paul Stevens: Is that question he refused to answer? Jonathan W. Lubell: Yes. In addition, we asked him for his opinions of the creditability and veracity of persons whose statements he did include on the program. We think that was directly relevant to whether he entertained serious doubts as to matters included on the program. We think that is -- William J. Brennan, Jr.: Those he also refused to answer? Jonathan W. Lubell: Those he refused to answer too, Your Honor. Now, when the defendants Lando and Wallace refused to answer questions in these areas of state of mind, plaintiff made a Rule 37 motion, which was brought before Judge Haight, the district court judge. Judge Haight considered the Sullivan principles and specifically considered the burden of proof of clear and convincing evidence which applies in the Sullivan case, considered the subjective nature of the state of mind that must be proven, found that the questions which he had -- which Lando in particular and Wallace to some extent, because there were very few questions open around Mike Wallace, that the questions that they had refused to answer were directly relevant to the subjective state-of-mind issue, that the issue of the subjective state of mind was a core issue in the case, and that the information as to the defendants' state of mind could only be obtained from the defendants by the very nature of the subject matter. William J. Brennan, Jr.: Incidentally, Mr. Lubell -- Jonathan W. Lubell: Yes. William J. Brennan, Jr.: At that stage, was there any controversy whether some of the matters shown on the "60-Minutes" program was or was not false? Jonathan W. Lubell: The defendants take the position that the matters presented -- William J. Brennan, Jr.: No, I'm stating at that stage of the -- Jonathan W. Lubell: At that stage, no. The issue -- at that stage before the District Court judge, the issue was whether the questions were privileged in terms it oppresses -- William J. Brennan, Jr.: But the issue of falsity is -- Jonathan W. Lubell: Falsity -- William J. Brennan, Jr.: Very much in this case, still it was? Jonathan W. Lubell: The issue of falsity is in the case, very much in the case, Your Honor. William J. Brennan, Jr.: It still is. Jonathan W. Lubell: Yes, I believe it is. I don't think the defendants have conceded that the statements made on the program are false. William J. Brennan, Jr.: And was there ever any suggestion that the issue of falsity should be determined before you get into the question of malice because unless something was false, I gather you wouldn't have a case, would you? Jonathan W. Lubell: Right, there was no suggestion. As a matter of fact the discovery process has proceeded in uncovering, trying to uncover both issues simultaneously. And I'm sure as Your Honors appreciate both issues are intertwined because as we learned the facts, we also learn what it was that CBS ascertained. So we also learn what CBS is -- also learn some evidence of CBS' state of mind as we learned the facts, in order to prove that the program contained serious falsehoods. William J. Brennan, Jr.: But on the issue of so-called editorial privilege or whatever you're going to call this, a privilege, I take it that wouldn't even be in the case unless there was first the finding of falsity of something about this program, would there? Jonathan W. Lubell: I'm not sure whether that is so because what the Circuit Court did is take this entire range of media activity, which they call the editorial process, and immunized it from discovery by a plaintiff. Now, it is possible that in our search for the facts -- William J. Brennan, Jr.: Well it immunized in the sense that it was privileged in some way? Jonathan W. Lubell: In the sense that it was privilege, we could not obtain what happened during that editorial process and I suggest that it is possible that during that editorial process, certain things may have a vision which relate to the question of truth and falsity as well. William H. Rehnquist: Mr. Lubell, in an ordinary lawsuit, in the discovery stage of the case, you have to do your discovery for all of the issues that you think will be necessary to prove at trial before you ever get to trial, don't you? Jonathan W. Lubell: Yes. Yes, Your Honor and that is the way we proceeded in this lawsuit that we have asked questions of Lando and Wallace and the other persons we've deposed, directed to the issues of truth and falsity, to the issue of actual malice, both issues. And I don't -- I might suggest, I don't see in this type of case how it is -- William J. Brennan, Jr.: Avoid it? Jonathan W. Lubell: -- as a practical matter ever able to be distinguished. The Court of Appeals reversed Judge Haight's -- William J. Brennan, Jr.: Forgive me, I shouldn't have taken so much of your time but I gather, you have allegations, I take it, do you not, on which you rely of falsity? Jonathan W. Lubell: Oh, yes. William J. Brennan, Jr.: Now, are they very -- about many, many matters or -- Jonathan W. Lubell: Yes, they are. William J. Brennan, Jr.: Only a few, or what? Jonathan W. Lubell: We maintain that the program as a whole as well as many specific matters presented in the program are false. And as I indicated in the in my opening comments, that the falsity concerns whether Herbert was a liar, as to the cover up of war crimes in the 173rd Airborne Brigade, whether Herbert himself was capable of committing acts of brutality against the Vietnamese, whether Herbert had used the war crime issue as an excuse for his own relief from command, and whether Herbert had perpetrated a hoax upon the American people. William J. Brennan, Jr.: All of which, as you say falsehoods. Jonathan W. Lubell: All of which are falsehood. William J. Brennan, Jr.: Are depicted in the 60-Minutes program? Jonathan W. Lubell: Yes. Yes, we say they are. Yes, Your Honor. I wanted to return for a moment to the question of the defendants discussing or disclosing parts of their state of mind. There is another fact in this case, which makes it unique in another way and that is, after the program, Barry Lando wrote an article for Atlantic Monthly. It is the other cause of action in this case which is not before this Court. However, the article itself is a full discussion of what was the purported editorial process in producing the program. Not only that, but the article time and time again, speaks of Mr. Lando's state of mind on matters that he was looking at while he was preparing the program. So we have a situation where the press has publicly gotten a shot at saying what its state of mind is and now would prevent a plaintiff from examining the press in a lawsuit in which a district court judge can regulate whether there's any abuse of discovery, from examining the press as to that state of mind which is critical in a Sullivan defamation action. Warren E. Burger: Well, here you are suggesting that, the responses where force coming as to the state of mind when it helped the defendant's case, but not when conceivably it might harmed the defendant's case? Jonathan W. Lubell: Yes, we are suggesting that. William H. Rehnquist: Well, it wouldn't be the first time in a deposition that, that sort of thing had happened? Jonathan W. Lubell: I don't believe so.[Attempt to Laughter] Now the heart of our argument before this Court is that by -- the Court of Appeals, by creating this editorial process privilege has upset the balance struck by this Court in Sullivan and it's progeny because what and succinctly what the Court of Appeals has done is deprived the plaintiff of the opportunity of ascertaining direct evidence of this subjective state of mind in case, where the plaintiff has to satisfy a clear and convincing burden of proof. In substance what the Second Circuit has done is by a rule which creates that privilege eliminated substantially all plaintiff's possibilities that we're recovering under insolvent principles. And we submit that it was not the purpose of this Court in Sullivan and it's progeny to preclude public officials or public figures from recovering for defamatory statements, when those statements will maliciously made. The Court of Appeals relies in part upon this Court's decision in Branzburg as well as the line of cases concerning confidential source disclosure. We submit to the Court that the decision of the Court of Appeals is in error, when it relies upon on Branzburg and the confidential source disclosure cases. The decision of this Court in Branzburg has provoked a great deal of discussion both from lower courts and in learning journals. But there is one thing that is undisputed, Branzburg did not create an absolute privilege. The decision of the Court of Appeals on the other hand creates an absolute privilege. In addition, the plurality in -- Thurgood Marshall: Now where do you see the line that the Court of Appeals drew, not the line that you draw, but where do you see the line? Jonathan W. Lubell: That the Court of Appeals drew? Thurgood Marshall: Yes. Jonathan W. Lubell: I think that, -- Thurgood Marshall: You're conduct your questioning where did they say you went off? Jonathan W. Lubell: The -- I think under the Court of Appeals' decision, I think they would say any inquiry into what the media or the press did after obtaining the interview from that time, until the time that the finished product is broadcast we could not inquire into. We could not find out whether in fact during that time for example -- Thurgood Marshall: Well, you say it is time and not subject matter? Jonathan W. Lubell: It will receive as both a period of -- I think there are two aspects of the Court of Appeals' decision and it is difficult to ascertain which one is the more powerful aspect. We submit both are powerful in terms of upsetting solvent completely, but one is you cannot inquire into the subjective state of mind, which is -- Byron R. White: Well, Mr. Lubell? Jonathan W. Lubell: Yes. Byron R. White: Would you think that any questions that started out, did you know would be barred by this ruling? Jonathan W. Lubell: Yes. Byron R. White: Did you know a particular fact? Jonathan W. Lubell: Yes, yes we believe. We believe that would pertain to the state of mind of the reporter. Byron R. White: So you couldn't inquire whether a particular fact was true or not? Jonathan W. Lubell: We could inquire as to who he interviewed. We could not inquire as to whether he knew -- Byron R. White: You could find out what he was told? Jonathan W. Lubell: What he was told, but we couldn't inquire for example, as to whether he knew the person he was interviewing -- Byron R. White: But you could ask -- Jonathan W. Lubell: I am sorry. Byron R. White: Couldn't you ask -- couldn't you ask did you ever learned that so and so? Jonathan W. Lubell: I believe that when Chief Judge Kaufman talked about any intrusion into the mental process of the press, I believe that he speaks of -- Byron R. White: Why didn't -- you really read it to me that you cannot inquire from the reporter the state of his knowledge, that whether he knew a certain facts or not? Jonathan W. Lubell: We can inquire as to -- I believe we can inquire as to what he did, but I do not believe we can -- William J. Brennan, Jr.: You interviewed John Jones, I did. What did he tell you? He told me so-and-so. Didn't you know that John Jones have said not that but this to somebody else? Couldn't you ask that question? Jonathan W. Lubell: It is my opinion that Chief Judge Kaufman's opinion is not clear as to whether that question is permissible when he states that any intrusion into the mental process of the reporter is precluded. Byron R. White: You mean you couldn't say, were you ever told by anybody else to the contrary? Jonathan W. Lubell: That you could ask, I believe, Your Honor. Byron R. White: Well, couldn't you go on and say, did you ever learn from any other source to the contrary? Jonathan W. Lubell: I think, Your Honor, you get closer to an inquiry regarding the state of mind. I must say I believe Chief Judge Kaufman's decision as it stands now creates several different interpretations on that issue. Warren E. Burger: Mr. Lubell, let me interrupt you. You can reflect on that during lunch hour, we'll resume there at 1:00 o'clock. Jonathan W. Lubell: Thank you. [Luncheon Break] Warren E. Burger: Mr. Lubell, you may continue. Jonathan W. Lubell: Thank you, Your Honor. In answer to the open question, so to speak, it's difficult to give a precise answer as to what the Court of Appeals' decision means in connection with whether questions of -- whether the defendant knew of certain things would be permitted. William J. Brennan, Jr.: Well, you don't have any court opinion anyway, do you? Jonathan W. Lubell: I'm sorry? William J. Brennan, Jr.: There is no court opinion from the Court of Appeals? Warren E. Burger: No majority? Jonathan W. Lubell: No, no majority opinion. There's an opinion by Chief Judge Kaufman who seems to indicate that perhaps you can ask questions -- William J. Brennan, Jr.: Now, which opinions are you talking about when -- what you're about to say? Judge Kaufman's or Judge Oakes'? Jonathan W. Lubell: Well, I think the Chief Judge's opinion at Page 40 -- at 22A of the Appendix describes what plaintiff has already done in the course of discovery and states that he has already discovered what Lando knew, saw, said and wrote during his investigation. Then subsequently, he states, now, Herbert wishes to probe further and inquire into Lando's thoughts, opinions, and conclusions. Byron R. White: Well, doesn't that imply that you can ask anything -- ask him whether he knew something? Jonathan W. Lubell: Yes it does. However, when you get into the question of the editorial process issue and look not only to the Chief Judge's opinion but the concurring opinion of Judge Oakes, where he states at 42A, it is quite another -- I'm sorry, it starts off, “thus, it is one thing to tell the press that its end product is subject to the actual malice standard and that a plaintiff is entitled to prove actual malice. It is quite another to say that the editorial process, which produced the end product in question, is itself discoverable.” Now, if during the editorial process -- Byron R. White: Yes but if either -- if there are only two people supporting the judgment of the Court of Appeals, and either one of them says that something is discoverable, it's discoverable under that judgment? Jonathan W. Lubell: However, if it's discoverable in a time period that might be described as the editorial process time period, which both of the opinions say cannot be inquired into. For example, if we were to ask whether during the -- Byron R. White: Well, you can ask -- I would think it would be a fair implication from what you read a moment ago that you could say when you went into this process, did you know it and when you came out of the process, did you know it? Jonathan W. Lubell: What -- I don't -- I think we possibly could ask that. However, what we could not ask is what it is he knew or came to know during that process. For example what if Mike -- Byron R. White: Well, I know, but if he came out of it knowing it, he learned it somewhere? Jonathan W. Lubell: The problem is, we wouldn't know what is is he came out with knowing. Byron R. White: Well, you would ask him a particular question, did you know so-and-so? Or, did you not know so-and-so? Jonathan W. Lubell: We would have to ask him every -- knowing every issue on every aspect of the case, we would not be able to -- Byron R. White: Well, how else do you prove a lawsuit? Jonathan W. Lubell: But we would not be able to find out what -- how it is that he came to know something. For example, what if during the process, Mike Wallace said to Barry Lando or somebody else from CBS said to Barry Lando, I went in to this person who's involved in your program, who you've interviewed, and he tells me something which is contrary to what he told you. This is during the editorial process, the conversation within CBS. Byron R. White: But You think that the -- then in this judgment you could not ask where you ever told something to the contrary? Jonathan W. Lubell: I think that it's possible that the defendants could raise the question that if it was told to the defendants during the editorial process by -- Byron R. White: By somebody on the within the editorial process? Jonathan W. Lubell: In the course of the editorial process yes Your Honor. I think -- Byron R. White: But if it were told him by some outsider, you could inquire into that? Jonathan W. Lubell: It may well -- I can't say, I would argue obviously if it came up in the District Court, I would argue if you could, but I don't -- I cannot say with confidence that, that answer is supported by the two decisions which form the majority. Warren E. Burger: Well assuming now Mr. Lubell the question suggested by Justice White has been answered, in that he has had two statements made to that are not consistent. Under this opinion or of these collective opinions, do you think you cannot ask why did you publish this and why did you omit that? Jonathan W. Lubell: No, I do not think and it would be quite clear on this, I do not think we could ask that. What we cannot ask is what did he think about what he learned, or what he knew. For example and this I a concrete example in this case -- Byron R. White: You can ask whether he thought it was true or false? Jonathan W. Lubell: That's right, that's right. I do not think we can ask that question. For example he interviewed -- Byron R. White: And you can't ask whether he thought some witness was truthful or not whether he was telling a falsehood or not? Jonathan W. Lubell: We can't -- that's right and also we can't answer whether -- William J. Brennan, Jr.: In other words, you can't say did you believe them? Jonathan W. Lubell: Or did you think you had to check it further. For example he interviewed an assaulter by the name of the name of Bob Stanley. The defendant produced notes which they have to check with Stanley further. William J. Brennan, Jr.: Certainly you have no problem about those sources here, did you in this case? Jonathan W. Lubell: No, in fact there was a question of sources which was then waived by CBS, there is no source problem in this case. I would like to say I see that white light is on, i want reserve a little time for rebuttal, but I did want just focus on the Branzburg analysis by the plurality of this Court, plus Justice Powell's concurrence in Branzburg, as it was further elucidated by the Justice in Footnote 3 in Gertz that the proper approach to questions of discovery where the First Amendment is implicated is a case by case approach, with questions of specificity relevance in materiality, importance to the court issues of the case explored by the district judge. And district judge Haight in this case did explore those issues, and did attempt to, and came to conclusions giving due care and consideration for the First Amendment values. What he did not do and apparently what the respondents complain of, he did not established a privilege by which the defendants can refuse to answer questions involving their subjective state of mind, the very issue in a Sullivan case. I would reserve to this of my time thank you. Warren E. Burger: Mr. Abrams. Floyd Abrams: Mr. Chief Justice and may it please the Court. I would like to start if I may my outlining briefly what we considered at the time and still consider the vice of the District Court opinion and then to proceed to the opinion of the Court of Appeals and some of the questions which members of this Court have addressed, to Mr. Lubell. The crux of the District Court opinion, Mr. Lubell to the contrary was not that the questions asked went to the core of the case, and it was not that the questions asked provided information which could only be obtained from the journalists involved. Those were not findings of the District Court and indeed as I read the District Court opinion they are inconsistent with the findings of the District Court. The District Court concluded as a matter of law that the concept of editorial process which we urged upon him, stemming from cases of this Court such as of the Miami Herald case, had nothing to do with the question of the scope of pretrial discovery in the Sullivan case. At that -- Warren E. Burger: How does Miami Herald bear on this case? Floyd Abrams: Our argument Mr. Chief Justice is this. We think that what the court establish in the Tornillo case was, that it's now it was of course of the right of reply statute was unconstitutional, but broader than that, we think it established a First Amendment proposition, that at least to close inquiry into the editorial process of a newspaper or in this case a broadcaster, is itself barred or at least presumptively barred under the First Amendment. If it I can give you a hypothetical; if Florida had respondent to this courts ruling in the Tornillo case, by passing a new statute requiring that a newspaper which did not print an answer have to disclose why it didn't print an answer. Warren E. Burger: Yes, but that wasn't involved in the Miami herald case -- Floyd Abrams: Absolutely not. I am not, Your Honor I am not urging that -- Warren E. Burger: -- probably beyond that? Floyd Abrams: I am without question or going beyond that case, what I am saying is that it does seem to us that the underlying theory of that case ought not to be limited to right of reply statutes any more than you would limit I think, Mills versus Alabama to limitations on what occurs on election day, and what can be printed by a newspaper on election day. We think what the court should do, but it has not yet done, and this was the first case since Tornillo in which this is raised, excuse me and what we think the Second Circuit concluded as well as that the underlying basis of Tornillo is not alone. That right of reply statutes are unconstitutional, but that the choice of material by editors to go in newspapers are on broadcast, the treatment of material to go and the nature of content, as at least presumptively protect to just as I think it would be, if in the Florida case, the Florida legislature, again in the hypothetical. If the Florida legislature, after your ruling has subpoena to the editor of the editor of the Miami Herald and asked him the very questions, the very questions asked of Barry Lando in this case, in affect why did you print this and not that? What was the nature of your editorial decision making? I do not suggest that this is what the Court held in Tornillo, of course it did not. But we do think that it is consistent with Tornillo and that the kind of dedication to the notion of editorial process protection which is embodied in Tornillo itself, ought to be embodied here as well. I think I can best illustrate it by reference to Mr. Lubell's answer to Mr. Justice Stevens earlier in which he was asked what's the best example that you've got. What is that you are really loosing? What kind of questions aren't being answered here and Mr. Lubell gave an example which I think is a fair example, of a situation in which a particular individual was interviewed on the program. On the page reference, if the Court wishes to see it later, is at 53(a) of the appendix and this person who had served with Colonel Herbert in the army, Bruce Potter by name, said on the program, that he was in a helicopter with Colonel Herbert and that in the helicopter next to Colonel Herbert, Colonel Herbert had suggested by thrusting a prisoner of war towards the open door of the helicopter, that he might throw him out. And the Colonel Herbert had as well thrown Sand bags out to suggest to people on the ground, a prisoner on the ground that, there were people being thrown out of planes and that therefore they should talk, and that's what Bruce Potter said. Warren E. Burger: Do you think that's an unfair strategy in war? Floyd Abrams: Your Honor I don't think it's defamatory, it is their position that, that is defamatory per se. I don't think that even states a cause of action to say Colonel Herbert is quote “capable of brutality”. Warren E. Burger: Well, in this if the statement were false and that it was known that it was false, then it might be, would it not? Floyd Abrams: I don't think it would be defamatory even then in times of war. William H. Rehnquist: That's a question of New York law? Floyd Abrams: I am sorry sir. William H. Rehnquist: That's a question of New York law. Floyd Abrams: Yes, yes that's a question of New York law, and I think New York law is to some extent at least has been constitutionalised as to what is defamatory. This Court hasn't yet ruled on the scope of First Amendment protection, if any, in terms of the definition of what is defamatory, but there is a second circuit ruling which so holds -- Warren E. Burger: Would you agree that Mr. Abrams is that under in New York Times and Sullivan malice is a state of mind? Floyd Abrams: Your Honor I fully agree that in order to prevail a plaintiff in a New York Times versus Sullivan case must either prove that in this case, CBS knew what it was broadcasting was untrue or broadcasts with reckless disregard of truth or falsity meaning with serious doubts has to -- Warren E. Burger: The question -- Floyd Abrams: I don't dispute that at all. Warren E. Burger: It is the question then in the cases how the plaintiff finds that out, is that not so? Floyd Abrams: I think the plaintiff finds it out Your Honor first of all that it kind of material he was given. There was extraordinary amount of production in this case. I don't want to limit it or argument that I just did in this case, but I think that Judge Kaufman's opinion is clearly informed by what it is that the plaintiff had in this case. And if I may say so there is no suggestion at all in any opinion of any court in this case, if there was a selective production for the purpose of making CBS look any better and what judge Kaufman said. Byron R. White: I gather from that what judge Kaufman said that he wasn't indicating that the plaintiff would be limited in finding out what information the newspaper had. Floyd Abrams: Exactly Mr. Justice White, here -- Byron R. White: And except perhaps what the individual reporter may have learned during the process? Floyd Abrams: Perhaps that and even that was not -- Byron R. White: But in terms of out – of what information he had from outside -- Floyd Abrams: All questions that were asked about -- Byron R. White: What did you learn or what did you know? Floyd Abrams: What did you learn or what did you know? Who did you talk to? Who did you interview as judge Kaufman said the form and frequency of communications with sources, including transcripts of interviews. William H. Rehnquist: What about a question? What did you believe as the Mr. Justice Brennan said when you were told that, what was your reaction? Floyd Abrams: Well, that I think Mr. Justice Rehnquist gets a lot closer to what answers were not given in this case. William H. Rehnquist: Well, but that's a real problem for plaintiffs in cases like this that's having in my own practice been a party on both sides to fraud cases and defamation cases, you don't get admissions out of defendants mouths that they lied, you have to go after them in tangential ways? Floyd Abrams: You are right. If to refer the questions involved here, I will assert to you at least that there are setup questions for our side. These are not difficult questions to ask. We may be right or wrong on the principle that we assert to you today about First Amendment protection, but these are not difficult questions to answer. These are questions were, “were you interested in showing a balanced view point as to Colonel Herbert's treatment of the Vietnamese?” Now, no -- at least in my experience, I don't know anybody would have much trouble responding to that kind of question. Now, that may or may not implicate editorial process. Editorial process may or may not be protected, and we think it is, and we think that's it. But I think it's very important and I have just been asked as well how is the plaintiff to prove this case? Well, what does the plaintiff have to do? What kind of evidence can he have and our answer to that question is that the plaintiff is to prove his case first by all of the facts, all of the objective facts. What happened? Who did he interview? What did he know and what was really happening? If the program is wrong, if there are people on the outside who will come in and testify, that it is not true, that certain things occur and that for some reasons CBS knew that it wasn't true. What would be more prohibitive than that and that's the way you prove the security's case. Warren E. Burger: How do they find out what's CBS? Knew except by asking them? Floyd Abrams: Those questions have all been answered, Your Honor. There is really no dispute in this -- Warren E. Burger: You concede then -- Floyd Abrams: Yes sir, but there is -- Warren E. Burger: -- when you ask the CBS representative when you said this, did you know 'A,' 'A,' 'A?' Floyd Abrams: All the questions about, what CBS knew have been answered. What have not been answered are questions which as judge Kaufman characterizes a small number of questions relating to his beliefs, opinions and intent and conclusions and preparing the program. Now, I would concede -- Byron R. White: And you are saying he shouldn't be asked, he shouldn't be required to answer, did you know he was a liar? Floyd Abrams: That's right. Byron R. White: Or he was telling the falsehood or something? Floyd Abrams: Yes. Let me say that if he will ask the question and he was not, did you believe what was on the program, and there are no such questions at issue here, we would not have objected and I do not read the opinions -- Byron R. White: Would you have objected to a question -- Floyd Abrams: No, Sir. Byron R. White: -- of at the time you had this interview with this particular source, did you believe him? Floyd Abrams: I think that, that falls within the area of protected information, Your Honor. Let me say that I think, that one could make and rather easily make some gradations of protection here. To the extent that one takes as, one's load star here a notion of -- and I appreciate the fact that it is necessarily and amorphous, a developing concept to editorial process. What is most important is what was on the program and what was off the the program and it seems to me that the single most protected thing in this area are questions such as Mr. Lubell referred to earlier which is why didn't he put the four people on, who had good things about Colonel Herbert. Now, that it seems to me goes to the absolute core of what should be protected in this area. William J. Brennan, Jr.: But why does -- did you believe him? Why does that also go to that absolute core? Floyd Abrams: It -- I am sorry Mr. Justice -- William J. Brennan, Jr.: Why does that go to the absolute court? Floyd Abrams: Let me say, I was distinguishing, I meant to distinguish between the example that I just posed and the did you believe question, which it seems to me is necessarily a step away. As I have said we have not urged -- William J. Brennan, Jr.: I know but, didn't I understand you to answer my brother White that did you believe him would be -- Floyd Abrams: We think that, that should fall as well -- William J. Brennan, Jr.: Why? Floyd Abrams: Within the area. William J. Brennan, Jr.: Why? Floyd Abrams: Because it seems to me that, that's a probe that deeply into the mind of the journalist is first of all not necessary in order to allow the plaintiff to prove his case. It is not the kind of question which is historically led so far as I know any plaintiff to win a libel case governed by New York Times against Sullivan. And I think that, and this is the question before you, I think that to make the journalist answer the question, not about did you believe what was on the program -- William J. Brennan, Jr.: How about the question Mr. Abrams not that you believed him. Didn't you know that he had told a different story to John Smith, how about that? Floyd Abrams: That question wasn't ask and -- William J. Brennan, Jr.: I know but what about it, is that within or outside the protective code? Floyd Abrams: I will think that questions as to what the journalist knew are questions which he ought to answer, but it seems -- Byron R. White: Even though it too involved some sort of cognition? Floyd Abrams: Some sort, but it seems to me that there aren't any kind of grade scale that -- as you go down that road, at the end of it at least, is why didn't you put these four people on, who said something good about Colonel Herbert. Byron R. White: But at least you I gather you would think that he could be asked, were you told us something to the contrary by somebody? Floyd Abrams: Yes, yes. Byron R. White: And -- Floyd Abrams: There's is no objection -- Byron R. White: And then you would be say -- and you did not put this on the program? Floyd Abrams: Yes, and there was no objection to any such questions. Thurgood Marshall: Mr. Abrams, assume this went to trail, you couldn't then ask him whether he believed it or not? Floyd Abrams: If an objection were made Mr. Justice Marshall by the defendant in this case, any question that was objected to, it seems to me could not be testified affirmatively to by the press. Thurgood Marshall: I am talking about at the trial, you say that you believe it when he told you that? Floyd Abrams: I think that if we object to any question on this basis at pre-trial, we could hardly be the ones to introduce evidence to that effect at the trial. Thurgood Marshall: I didn't say -- Floyd Abrams: I am sorry -- Thurgood Marshall: I said this same man -- Floyd Abrams: Yes. Thurgood Marshall: -- Mike Wallace is on the witness stand and if he asked in particular phase in your did you believe that man for telling the truth? Floyd Abrams: We have taken the decision Mr. Justice Marshall, that all questions are proper as to what was on the program that is to say, did you believe so and so insofar as what he said on the program we think is a proper question and we would not have objected to such questions. Thurgood Marshall: No I am talking about did you believe him when he told you? I can't get this line between the two? Floyd Abrams: If it was broadcast on the program, my answer to you is yes. Thurgood Marshall: For example I know what the answer would be but I assume you say that he couldn't answer the question, did you do this with the reckless disregard? Floyd Abrams: Well -- Thurgood Marshall: You have to say you couldn't ask him that question? Floyd Abrams: We think that Justice Marshall that question -- Thurgood Marshall: You wouldn't object to it because you would know what the answer would be? Floyd Abrams: I know what the answers would be to all of these questions.[Attempt to Laughter] William H. Rehnquist: But that's the ultimate issue in the case of the New York Times against Sullivan what justice Marshall was asking, isn't it? One of the ultimate facts that a jury has to determine is whether he did that with reckless disregard to the two? Floyd Abrams: That's right -- and what I said is that, we have not -- Mr. Lubell has not asked these question, but we would not have objected it and we do not maintain that the privilege that we seek here protects against a response to the question about whether anything that was on the program was believed by the journalist or was known by the journalist to be untrue. That it seems to me is, if nothing else waived by the very fact of putting it on the program. What we are concerned with here is, questions as to the selective process of inclusion and exclusion and particularly the material that was excluded from the program. William H. Rehnquist: Well, I have thought -- moved over -- you said a question about belief in the truth of something could not be asked? Floyd Abrams: But when I concluded from that Mr. Justice Rehnquist was a question as to the belief of material which was actually broadcast on the program. And what I have said is that -- that which is broadcast on the program or printed in the newspaper, it seems to us is material which the journalist ought to be prepared to respond to. Where we start to differ is that material that was either not broadcast on the program or beliefs, conclusions about witnesses in general, not about, particular material. William H. Rehnquist: Well, that amounts as though the soft pitches you can hit and the hard ones you can duck? Floyd Abrams: Well, Your Honor, there are no -- I ask you to look at the questions here, that's not a question I couldn't answer. William H. Rehnquist: I know but in -- but the kind of questions that you say are not answerable and to go further in the process, certainly no producers is going to say, I didn't believe what I put on the program, but if you go further back in the process and say what did you think after you learned that 'X' said such and such, you may get a string of answers that may permit a jury to infer that he didn't believe it. Floyd Abrams: Well, it seems to me Mr. Justice Rehnquist that it would be a very rare liable case indeed. If the kind of answers that you would get to kind of questions that you raise or the kind of questions asked here, did you consider doing something that you didn't do, these are not difficult questions, at least in my experience. I think in the St. Amant case, this Court indicated by way of illustration I think, but indicated the kinds of ways to prove reckless disregard. And the kind of examples that the Court gave there were where the story is fabricated, where the story is a product or the reporter's imagination, where the story is based upon an unverified, anonymous telephone call, where the publisher's allegation is so inherently improbable that only a reckless man would have put them in circulation, where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports, we are providing all the objective information from which those kinds of things, and more can be determined. Warren E. Burger: Now you've emphasized -- you've emphasized objective, Mr. Abrams, in a number of your responses. At least three places I observe in the Sullivan case, the Court refers to malice as a state of mind and I gathered earlier you did not -- you have no quarrel with that, that malice is a state of mind? Floyd Abrams: That's correct. Warren E. Burger: How do you probe for the presence or absence of malice if you can't ask what was the state of mind at the time this or that was done? Floyd Abrams: It seems to me, Your Honor, that the way it has been done in libel cases, and the way it is routinely done in criminal cases, and security's act cases, and antitrust cases, is for a jury to infer a particular state of mind from a particular set of facts. Warren E. Burger: Well, let's take a criminal case for example, and the defense is self-defense. You wouldn't suggest, would you, that you can't ask the prosecutor, once the defendant has taken the stand asserting self-defense, that he can't cross-examine him without limit on his state of mind with respect to -- Floyd Abrams: I think once the defendant takes the stand in that type of situation, and to the extent that that's a relevant issue, he certainly can. But the fact -- Warren E. Burger: Wouldn't the state of mind be relevant to self-defense? Floyd Abrams: Yes, sir, it would. What I'm saying is that in a more standard, or another criminal example would be whether the defendant doesn't take the stand -- Warren E. Burger: Well, or course, you can't prove his state of mind if he isn't there? Floyd Abrams: But the question before you is, are we entitled not to respond to certain questions? And I think that that is the analogy to the defendant who has respects to -- who does not make a self-defense argument, but simply puts the prosecution to its proof and in that type of situation -- Warren E. Burger: But in a civil case, you can't do that, can you, you must take the stand? Floyd Abrams: Unless you are -- you must take the stand. But unless you are privileged not to respond to certain questions, and that is indeed the question before you. Warren E. Burger: Well, do you suggest that privilege of a reporter is different from the privilege of some other witness? Floyd Abrams: Well, it seems to me, Your Honor, that this will take a moment or two, because it seems to me that the Court is yet to rule on whether the Gertz case, first of all applies alone to the press and the media or to other entities and so that would be a threshold ruling for the Court to make as to whether there is any different treatment under libel law, or under slander law. If the treatment is the same, it seems to me, Your Honor, that there are special reasons why reporters need this protection. I do not take the position that individual speakers cannot get the protection. I don't think that's before you, but it does seem to me that in fact the only people that engage in the kind of process we're talking about here tend to be journalists. I suppose I could conceive a situation where that were not true, but certainly on a regular basis -- Warren E. Burger: But there are many libel cases brought against people who have nothing to do with journalism, aren't there? Floyd Abrams: There are manly libel cases, and Your Honor, it is our position that the only open question is whether this protection ought to go to the “press,” including a lot more than journalists -- or to the press and speakers as well -- Warren E. Burger: Well then now let's narrow it down -- Floyd Abrams: -- or to the press and speakers as well. Warren E. Burger: -- let's narrow it down to two different kinds of defendants in libel cases, one is a media reporter and one is just another taxpayer who happened to -- Floyd Abrams: Write a book or a -- Warren E. Burger: No, just make some very bad statements about someone, not a writer? Floyd Abrams: Oh, I'm sorry. Warren E. Burger: Just another citizen who is not -- doesn't purport to be a professional writer. Floyd Abrams: Right. Warren E. Burger: You think there is a difference in the scope of probing the mind of the one from the other? Floyd Abrams: I'm saying the first thing I would have to know, Your Honor, is whether New York Times against Sullivan protects the individual in that type of situation and what I was observing is that I don't think this Court has yet ruled on the question of whether the Sullivan case does afford such protection. If it does, it seems to me that there are particular reasons why the press needs this protection because of the nature of the process it is engaged in, the regularity of it and the like, but that I certainly wouldn't oppose it for anyone else. It seems to me that you often get cases before you, which have peculiar applicability to one or another body of life in the country. The Tornillo case is one. It may not be just a press case, but it is unlikely to arise in the context of a statute requiring individuals to speak in reply to things that other people have said and I think that that's the same proposition here. You need not say, and we don't urge you to say, that the First Amendment protection that we think exists here, and should exist here, is limited to the press. But in all candor, I have to tell you, I don't know that it will often arise in situations which don't involve the press or writers or people who are engage in the kind of process which CBS News, in this case, has in fact engaged in. Warren E. Burger: Do you know of any case, none in this Court of course, but any case in any court which has put a limit on the cross-examination of the witness when the issue is malice, whether it's a murder case or whatever kind of case it may be? Floyd Abrams: Well, the only type of situation is that -- I'm trying to think of cases where malice is in fact at issue. Our case here is the first libel case on one side or another which relates to this question. Insofar as criminal cases are involved, they wouldn't really involve malice. I can't think offhand of an answer. Byron R. White: Well, any kind where an intent, where any kind of a fraud case, civil fraud case? Floyd Abrams: Yes. Byron R. White: In a 10(B)(5) case, now, how about that? Floyd Abrams: 10(B) -- I was limiting my answer to the question of malice but in terms of intent -- Byron R. White: Well, state of mind. Floyd Abrams: State of mind or intent is routinely proved in 10(B)(5) cases by reference to what the person did and what the person knew. Kw But you wouldn't suggest that there shouldn't be cross-examination about his state of mind? Floyd Abrams: No, I would not suggest that and I have no reason to think of that is constitutionally privileged. Byron R. White: While I've got you interrupted, I take it that your submission here is not just that the state of -- that there should be no inquiry into state of mind, but there shouldn't be any inquiry into the editorial process, the decision-making process, and for example, you would say that it would be an improper question to say, what did another one of your editors tell you? Floyd Abrams: I think as a general matter, certainly. Byron R. White: Or what did you tell one of your senior editors? Any conversations in that process? It's sort of similar to sort of an executive privilege claim. Floyd Abrams: Yes, it is indeed one of the analogies that we urge on you in our brief is that of executive privilege, is that indeed as the Court observed in the Nixon case, that human experience teaches us that people will speak less freely in that type situation if they know that what they're going to say is going to be exposed to public dissemination. There are similar rulings with respect to far lower-level people in the Executive Branch, the mental processes of which are at least generally barred from disclosure. Similar rulings under that speech and debate clause -- Byron R. White: Well, sometimes what happens with the government when they claim the privilege is what the government's interest -- if they want to claim the privilege, they must give up the interest. In a criminal case, for example -- Floyd Abrams: In a criminal case, that is correct. Byron R. White: If they claim -- they want to claim a privilege, I mean they have to dismiss the prosecution and if the government wants to pursue someone civilly and still claim a privilege for some information they have, they may not be able to press their claim very far. Floyd Abrams: I appreciate that. I think that would be a high price to put on this privilege, if you should sustain the privilege. Warren E. Burger: It's true in civil cases, is it not in Federal Tort Claims cases against the government, one of the classic cases in this Court? The government said they could not respond about all the gadgetry and things that were in the experimental plane because this would give away national secrets. And so the courts said, if you can't respond, then the court will presume the worst and enter judgment against the government on that. Floyd Abrams: Well, our position here, Mr. Chief Justice, is not that we cannot respond, but that you ought to rule that we need not respond, and -- Warren E. Burger: Well, or course, theoretically, the United States could have told the court in Philadelphia in that case that, no, we will not respond because this is a national security matter, which is about what it did, then the court said, if you don't respond, we'll enter judgment against you, we'll presume the worst. That's the effect of it. Floyd Abrams: If that were the nature of any privilege granted by the Court in this area, it would not be very expansive. Thurgood Marshall: Mr. Abrams, let's get a way -- away from this case. The reporter has a transcript of a trial in California, and he selects out of it portions to read them on his television show. Could you ask him about what discussions he had with people about which one of those portions he should read? Floyd Abrams: He can certainly have the whole transcript at the outset, in order to make judgments based on that. Thurgood Marshall: Right, and he picks and chooses? Floyd Abrams: Yes, and if the process -- Thurgood Marshall: And he does that with discussion with other people in his office? Floyd Abrams: It seems to me, Mr. Justice Marshall, that those kinds of discussions in the office, as opposed to the facts of what he had, what he knew, and what he did, should indeed be protected and it seems to me that the precise analogy to that is, in fact, the executive privilege cases and the variety of other cases about the nature of discussions in situations like that. At the very least, it is our view that they should presumptively be protected, and that if they're to be overcome, they should be overcome in very rare circumstances. One of the worst problems with this case is that the effect of it is that -- Thurgood Marshall: Well, where do you get the chilling there, who gets chilled? Floyd Abrams: Well, it seems to me that what is -- Thurgood Marshall: Who gets chilled? Floyd Abrams: What is chilled are the people who speak to each other in the newsroom, aware -- Thurgood Marshall: They get chilled, reporters get chilled? Floyd Abrams: Oh, Mr. Justice Marshall, I am not suggesting that this has happened. On the other hand, I know of no case in which discovery has gone on for 26 days and 2900 pages in a libel case. If this case is lost, Mr. Justice Marshall, or if I may say so, if there is no protection at all here, I think it fair to predict that questions like this will, for the first time, become routine, that public officials and pubic figures, the very people set out by this Court in Sullivan as being, for a variety of societal reasons, people who will receive less protection against defamatory falsehoods than other people, will be able to commence libel actions and immediately plunge into the core questions at issue here, why did you write these bad things about me? Why didn't you put on the good things about me? Byron R. White: Of course, this never happened under the old libel law? Floyd Abrams: It never did, I don't want to follow that up, but it never did. William H. Rehnquist: Well, before 1965, it happened all the time, before New York Times against Sullivan? Floyd Abrams: Not state of mind inquiry because at that point the test was wholly truth or falsity, was it privileged under Sullivan statement. William H. Rehnquist: How about for punitive damages? Floyd Abrams: For punitive damages, it sometimes came up in very specific and narrow circumstances, not questions as to why certain material was included and excluded. Punitive damage questions were historically the questions about, what did you think of him? What was your -- William H. Rehnquist: Was there actual malice? Floyd Abrams: Yes, actual malice in non-constitutional terms. William J. Brennan, Jr.: Mr. Abrams, what of Mr. Lubell's comment on editorial process, all of that's been revealed in Mr. Lando's article in the Atlantic Monthly? Floyd Abrams: Well, first -- William J. Brennan, Jr.: As it applies to this case. Floyd Abrams: I don't think it so, Your Honor. I have read the article. There's been no finding -- William J. Brennan, Jr.: I haven't seen it. Is it in the record here? Floyd Abrams: Yes sir. There's been no finding by any lower court that that is the case. If there is a waiver problem here at all, either by virtue of the Atlantic Monthly article, or by virtue of any answers which were inadvertently given in the course of the 26 days over which this was spread. It seems to me that's something for the district court to deal with. We are not taking the position that there is no such thing as waiver. Warren E. Burger: Let me ask you just one more question about your reference to discussions within the publisher's establishment. I was just focusing on the language of the opinion in New York Times against Sullivan, and let me read it to you. Finally, there is evidence that the Times published without checking its accuracy against the news stories in the Times own files, you remember that was an ad, not a news story. The mere presence of the stories in the files does not, of course, establish that the Times knew and the Court put that word in quotation, "knew" that the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times organization, having responsibility for the publication. Now how would you get at that if you couldn't ask these people what was in their minds at the time? Floyd Abrams: You would ask the person in charge of advertising acceptability at the New York Times, what did you know? Did you look at the files? What was in the files? Warren E. Burger: How about the editor, to ask him what was in the files? Floyd Abrams: Well, let me say first, Your Honor, that the files here have been turned over. So insofar as the files as such are concerned -- and they objectively reflect what is at issue that can be obtained. What cannot be obtained are directly by way of questions, in our view when I think in view of both Judge Kaufman and Judge Oakes, are the individualistic, tentative, probing, conclusions, musings, whatever, of journalists as they go about their job. But all the objective questions as to what was there, what happened, what happened next, what didn't they look at, what did they look at, that's what was lacking in New York Times against Sullivan for the plaintiff to have -- Byron R. White: Or any conversations whatsoever in the editorial process? Floyd Abrams: Are what? I'm sorry. Byron R. White: Or any conversations in the editorial process may not be inquired into? Floyd Abrams: It seems to us that conversations -- Byron R. White: That's a considerably different kettle of fish than just talking about state of mind? Floyd Abrams: Well, that is -- it is a different area, Your Honor, it is and it seems to us that that also should be privileged, but that the policy basis for some of these are somewhat different and I tried to set forth but they aren't. Warren E. Burger: I get a hint from some of the things, at least between the lines of your argument Mr. Abrams, that perhaps some misreading of the opinions has taken place. Is that a reasonable conjecture on my part? Floyd Abrams: Misreading of the opinions by -- Warren E. Burger: Of the opinions of the Second Circuit, that some people may be misreading them. Floyd Abrams: I think that to the extent that -- yes. Yes, I think that this is true. That it is certainly misread if it is read as an end to libel law, and it is misread if it is read as a total, absolute privilege in every case which could conceivably be characterized as “editorial process.” I don't think that's what it says, and I don't think that's what either Judge Kaufman or Judge Oakes have to say. John Paul Stevens: Mr. Abrams, before you sit down, when you started, you called my attention to page 53 (a) of the appendix. Floyd Abrams: Yes. John Paul Stevens: Why did you do that? Floyd Abrams: I started to respond to a question that you had asked Mr. Lubell. John Paul Stevens: I'd be interested in your response. Floyd Abrams: Starting about halfway down on page 53 (a), there was an interview on the program with Bruce Potter, and that was, I think what Mr. Lubell was adverting to earlier and I described it briefly about how Mr. Potter said that in his presence Colonel Herbert had thrown a sandbag out and as well had made threatening gestures towards a prisoner of war. Mr. Lubell's examples was that example, and what he said to you was that there were four people on the other side. What I wanted to say in response to that was, first as a matter of fact, the four people were not on the helicopter and had nothing to say as such about what happened there. But what they did say were good things about Colonel Herbert in terms of his desire to care for, to be compassionate towards prisoners of war and they were not on the program. Although what was on the program was a statement of Mr. Wallace, saying in so many words, that there are people who they had interviewed, who CBS had interviewed, who took the position that Colonel Herbert was not capable of brutality. The point that I was going to make was only this. It seems to me that that is a very, very dangerous line for libel law to go down, either substantively or procedurally, if we're talking about procedure today, and allowing questions about that because the nature of those questions is nothing less than, why didn't you put the good material on? John Paul Stevens: Well, do you think that the question would be proper if it were asked this way, in the light of what these other four persons had to say, did you have any doubt about the credibility of Mr. Potter? Floyd Abrams: I certainly wouldn't have objected to a question asking whether he had any doubt about the credibility of what Mr. Potter had to say on the program. John Paul Stevens: Did he -- Floyd Abrams: I'm sorry? John Paul Stevens: (Inaudible) was Mr. Potter telling the truth? Floyd Abrams: In what he said on the program? We -- John Paul Stevens: Well, supposing this wasn't on the program but it was just one that was slightly different. Well, you'd say that could be not inquired. Floyd Abrams: Then it seems to me that that is a further step away. It seems to me that journalists ought to be responsible for what they put on. John Paul Stevens: Why is one involved editorial process any more than the other? Floyd Abrams: Because it seems to me that when you put it -- I think they both involved conceptually the editorial process, but when the process is broadcast, it's out. John Paul Stevens: The process wasn't broadcast -- the product of the process? Floyd Abrams: When the segment at page 53 and 54 (a) is on the program, it seems to me, even though that is a result of a process, the journalist has to respond to the question as to whether he believed it or not. John Paul Stevens: It's permissible to ask why he put Potter's statement on, but it is not permissible to ask, why did you not put the other four statements on? Floyd Abrams: No, Your Honor, it is our position that it is permissible to ask, did you believe the statement of Mr. Potter which you broadcast and it is our position that the questions ought not to be allowed to the effect of, why did you put it on -- John Paul Stevens: But if there were a second statement by Mr. Potter, I just want to be sure I am -- Floyd Abrams: Yes. John Paul Stevens: The second statement by Mr. Potter was somewhat similar, but was not actually put on the air. It would not be permissible to say, did you believe that statement by Mr. Potter? Floyd Abrams: Yes, Your Honor, that is our position that that should not be permissible. We think that the product broadcast ought to be what is at issue, and that that can be inquired into, but not the process by which other things did not get put on. Speaker: (Inaudible) Floyd Abrams: Thank you, Your Honor. Warren E. Burger: You have a few minutes left, Mr. Lubell. Jonathan W. Lubell: Very briefly, in regard to reference to the Sullivan decision itself, the reference to the looking at the files, the issue that gets raised now by the Second Circuit decision is suppose an editor at the time that the work product was being worked up, the editorial process was going on, went to the files and looked at the files during that editorial process. The question is, could we ask a question about what was done during the editorial process? I think that question is a serious question in light of the decision of the Second Circuit which appears to say that we can't inquire as to what was done during that process. In addition, in the Sullivan case itself, in reference to whether the media are the only groups of people that are protected under the Sullivan principles, I'm sure, needless to say, the Court is aware that individuals were as well, petitioners before this Court in Sullivan, the ministers themselves, and they were afforded the protection of the Sullivan principles as well as the New York Times. So I think from Sullivan on, there has been at least an implied recognition that the Sullivan principles protect anyone who exercises his First Amendment rights, first in regard to public officials, and subsequently in the decisions of this Court in regard to public figures. John Paul Stevens: Mr. Lubell, let me ask you just one question. At the end of Judge Oakes' opinion, his last sentence, it refers to that he concurs in the general answer of Chief Judge Kaufman to the certified question. Was there a single question certified to the court? That's on page 46(a) of the -- Jonathan W. Lubell: Yes. John Paul Stevens: There was a single -- where is it in the papers that have been filed? Jonathan W. Lubell: I believe what he is referring to, Your Honor, is the certification memorandum opinion and order because as to whether you can specify and focus upon a specific certified question, I don't find it. John Paul Stevens: The only certificate of the district judge would be under 1292(b) saying an interlocutory appeal is ordered, is that what he's talking about? Jonathan W. Lubell: I believe so, and that is in the appendix to the petition, the second memorandum opinion and order of Judge Haight, beginning at 90(a) to the petition in which he certifies under 1292(b). John Paul Stevens: I see. William H. Rehnquist: Well, at the very beginning, the Court of Appeal's opinion says, appeal pursuant to 28 U.S.C. 1292(b)? Jonathan W. Lubell: Yes, yes. Yes, Your Honor. It came up on a certified -- on a certification procedure and the certified question involved the same question that Judge Haight said was a question of first impression, which had to do with the state of mind, or whether there was a privilege for the editorial process of the press. Further, in regard to the question that the Chief Justice posed to Mr. Abrams as to criminal cases where defendant does take the stand, or any civil case where defendant does take the stand, and the issue of state of mind is an issue, whether it would be because malice or intent required. Obviously, the defendant must answer those questions unless a testimonial privilege against self-incrimination or one of the recognized testimonial privileges is asserted. In this case, in fact, the defendant, in a pre-trial sense, took the stand. He submitted himself to a deposition and questions were asked to him about his state of mind within concrete, factual contexts only because by the decisions of this Court, the subjective state of mind has become the critical Sullivan issue. In regard to the -- again, back to the question of what questions appeared to be allowable, or would not appear to be allowable, I would note that the defendants have objected at the deposition stage, and have contended throughout the appeals here, that questions as to the defendants' view of the credibility and veracity of persons who appeared on the program, as well as persons who did not appear on the program, were not proper. So, that it's not limited to somebody who did not appear on the program. I see both my lights are on and in conclusion, we contend that by precluding a plaintiff from obtaining any direct evidence of state of mind in a Sullivan case, or obtaining any evidence of what happened in the editorial process, whichever way you interpret the two aspects of the Court of Appeals' decision completely unbalances the accommodation struck by this Court in Sullivan and its progeny. Thank you. Warren E. Burger: Thank you, gentlemen. The case is submitted.

Earl Warren: Number 42, Willie B. Moore versus State of Michigan. Mr. Solicitor General, you may continue. Samuel J. Torina: Thank you Mr. Chief Justice and may it please the Court. Yesterday, when the adjournment is called up, I was discussing the question of procedure in Michigan involved in this case. I think I'll continue on because I think that the proceedings that were involved in this case are very important to its determination. Now, I would like to profess my argument by pointing out that these proceedings have been before this Court prior to this time. They were considered in the Quicksall versus Michigan case which Mr. Justice Frankfurter wrote the opinion on and approved or I would like to review them again. Now, Willie B. Moore was arraigned on information. It wasn't a complicated information. It was count in simple language that run in substance as follows. Now, Willie B. Moore heretofore to wit on or about the 26th day of October 1938 at the City of Kalamazoo in the County of Kalamazoo aforesaid murdered Josie Zeedyke. And then after that the Court -- the Court reporter's transcript shows that the accused was arraigned and pleaded guilty in the official general entry which appears here. Now, this arraignment was on the 29th day of October in 1938, and the general entry under our law raised the strong presumptions and it discloses that following the plea -- but before imposing sentence, the trial judge took two important procedural steps in accordance with our state law. Now, I think I mentioned yesterday that at the time this case was tried, Rule 35-A didn't exist. We did have a statute which still exist, which provided that on the plea of guilty, the judge was to discover from the witness whether he pleaded guilty voluntarily or not. There wasn't any procedure outlined by which that discovery was to be made and several has been used throughout the state and approved by our court. On this case, according to a witness, the colloquy took place between Willie B. Moore and the judge for about 15 minutes. This witness was running sure who was an attorney spectator in the court at the time this arraignment took place, He said it was about 9 o'clock in the morning. Well anyhow, after this colloquy, the judge took Willie Moore into his chambers and Willie Moore says that at the time he was accompanied by Sheriff Rubel (ph). However, Rubel (ph) denied that he went into the chambers with the judge and the judge then, according to this record, which has been put on file, he made a statement of the proceedings first. Now he put on file. He discussed with Willie B. Moore his -- his education, his background and then he says Willie Moore gave him all the details of the crime. And when he came out, he put that on the record. Had the description of the crime as given by Willie Moore and then he ended up with this statement that appears on page 15 of the record. “In my private interview with respondent, I assured him that he must not plead guilty unless he really is guilty, that he was not required to plead guilty, that he could have a trial by jury if he desired it. He assured me freely and voluntarily that he is guilty and that his one desire is to have it all over to get to the institution to which he is committed and to be under observation and to be examined. Now, that was put on the day of the arraignment. That was put on record and appeared in the official Court records. That was the statement he made. Following that, the judge then took a second statutory statement. Our statute still requires that upon a plea of guilty in the case of murder, the judge has to put witnesses on the stand to determine the degree of guilt. If that isn't done, our Court has -- and that hasn't been done in a couple of case and each time our Court has avoided this -- the sentence. Well, the judge then had I think three -- three witnesses were put on the stand. One was the daughter of the deceased or the -- of the murdered woman, (Inaudible) Zeedyke and she testified that she saw Willie Moore come to the house on the day he asked her if they had any work to do. She knew him. She had met him previously to this time because Willie Moore had worked for her brother. And after that, she said she saw him (Inaudible) she found her mother. Another witness was a policeman who is called to the scene of the murder and he testified as to the condition of the woman and then the coroner testified. The coroner or the doctor as to the condition of the woman, what caused her death and so on and while I think of -- there was a police. I -- I don't recall exactly. It's in the transcript. There are three or four witnesses. William J. Brennan, Jr.: Well, Mr. Solicitor, what -- was that the testimony of those witnesses taken before the private interview? Samuel J. Torina: No, I don't believe so, Your Honor. It was taken after. William J. Brennan, Jr.: Does it appear in the record, the testimony of the witnesses you've mentioned, preceding as -- it's from pages 5 to 14 and then comes the statement of the Court. And I have the -- Samuel J. Torina: Well, I'm confused, Your Honor, you're right. William J. Brennan, Jr.: Is that right? Samuel J. Torina: It was taken before. He had discussed the matter when he first -- before he took the statement of the witnesses. He discussed the plea of guilty and so on and the statement says that. The -- and then after he took that, he described the details of the crime that he got from the defendant then he makes a statement about the plaintiff being free and voluntary. William J. Brennan, Jr.: Oh, I see and then he had the interview then he took the testimony -- Samuel J. Torina: Yes, that's right. William J. Brennan, Jr.: -- and then he made the statement -- Samuel J. Torina: That's right, Your Honor. William J. Brennan, Jr.: -- from what occurred at the interview. Samuel J. Torina: That's right. William J. Brennan, Jr.: I see. Samuel J. Torina: And then after that (Voice Overlap). Pardon me, Your Honor. Felix Frankfurter: No. Go on please. Samuel J. Torina: Then after that, he then went in -- got the witnesses and went into the details to determine the degree of the murder and he put another sentence -- statement on the file after he sentenced the man to determine the degree of guilt and it -- Tom C. Clark: It was only as to the -- Samuel J. Torina: Yes, sir. Tom C. Clark: -- the sentence, wasn't it? Rather than the -- he has the right to plead guilty. Samuel J. Torina: Yes, Your Honor. Tom C. Clark: And then they put on the testimony to show the character of the facts so they might arrive with the sentence, is that right? Samuel J. Torina: Yes. To determine the degree of guilt, so he can arrive at the sentence. That's right, Your Honor. Let's go down incidentally. But today, the whole proceeding, the discussion between the judge and the defendant is put on record, the proceedings surrounding the plea of guilty and our Court rule provides for that. Felix Frankfurter: But what we have is Ms. Zeedyke exactly -- the witnesses for determining what sentence to impose, that was put on record as you call it being an -- a stenographer took it down -- Samuel J. Torina: Yes, sir. Felix Frankfurter: -- and transcribed and it's now on file in the Kalamazoo Court. Samuel J. Torina: That's right, Your Honor and it was taken the same day that he pleaded guilty. The Court then put another statement on record regarding the sentence that he had determined that the defendant was guilty of first degree murder after this interview with these witnesses and he say -- he ended up saying he thought he should be sentenced to first degree to life because under our statutory, it's mandatory. And then, he -- he said there in making that statement -- Earl Warren: -- abolished the death penalty by that time? Samuel J. Torina: We don't have -- we never had any death penalty. Earl Warren: You never have hadn't -- Samuel J. Torina: The only death in our State was under a federal statute of a robbery (Inaudible). That's the only death penalty. We have never had any in Michigan. It's not a capital offense. Earl Warren: Yes. Was there any provision in the law at that time for the appointment of counsel in such cases? Samuel J. Torina: Not at that time, Your Honor. That came under 35-A. However, the courts did appoint counsel. Earl Warren: Under what? Samuel J. Torina: There was appointment of counsel, but none in a situation like this in a plea of guilty. It wasn't required, today it is. Earl Warren: In every criminal case -- Samuel J. Torina: In every criminal case -- pardon? Earl Warren: In every felony case? Samuel J. Torina: Even misdemeanor cases under that statute. I quoted yesterday that we just adopted and that's always been the case. Any misdemeanor case can have an attorney appointed by the court from the arraignment. The prelim -- preliminary examination in which it's not a criminal proceeding ipso facto, it then become such until it's bound -- he's bound over the Circuit Court. But we have gone even further to protect the defendants now and we allow -- allowed that testimony to be -- an attorney be pointed on the examination so from every step, he has an attorney. Earl Warren: Did you have a post conviction proceeding at the time this happened? Samuel J. Torina: Well, I was going to point out. I know Mr. Justice Brennan asked about that yesterday, in regard to a delay in motion for a new trial. Now, our leading case on that is People against (Inaudible) and that case is 218 Mich and which must be at least 30 years old, but our court -- we haven't got any court rule on it. Our courts have always used that as part of their inherent power to correct any injustice. So, it's been in Michigan from the very first as far as I can determine. Earl Warren: You mean there was an appeal that he could have taken a delayed appeal -- Samuel J. Torina: Yes, Your Honor. Earl Warren: -- anytime? Samuel J. Torina: And it's a very informal proceeding. He files a motion for a delay -- leave to file a delay in motion for a new trial and that he's got to set up his reasoning grounds and justify his delay beyond excuse. Earl Warren: That was then done by rule of court or -- Samuel J. Torina: Yes, Your Honor. Earl Warren: There is a rule, is there? Samuel J. Torina: Yes, Your Honor. Earl Warren: There was at that time? Samuel J. Torina: Oh, yes. There's always been one in Michigan. Earl Warren: Yes. Samuel J. Torina: And here, Willie Moore did have the opportunity to file such a motion, but he waited almost 12 years before doing so and I say that -- that procedure is very informal, our courts and magistrate (Inaudible). In fact, we're getting now -- we're -- we're going to pass a statute soon which makes all criminal cases appealable in that State. We don't have the right now. You have the right to file an implication to lead to appeal. But we also have another proceeding and that's a motion for leave to file a delay -- a delayed application for leave to appeal and that can be filed anytime and that's a very informal proceeding. The record is settled and then the court can -- can open up the whole case and that's what was done here after 12 years and that's why Willie Moore got into our Supreme Court. Now, I'd like to point out here that after the hearing on this delayed motion for a new trial, our court in Kalamazoo appointed an attorney for him. They paid -- the County paid -- and they paid for the record in before your Griffin against Illinois case, we furnished the transcript for the defendants here and paid for it. So, our -- our State has been over backwards, I think, in trying to give Willie Moore due process in this case. Earl Warren: When is the first -- when is the first time it's shown by the record that Willie Moore tried either to get counsel appointed or -- or possible (Inaudible)? Samuel J. Torina: Well, as I see it here, the first motion he made was September 1949 and he got an attorney of his own choice, Mr. Roxboro who is a very able and experienced attorney. He's colored and he has handled a great number of these cases and I'd like to say here now that I'm surprised that when they first filed this delayed motion for a new trial, there was nothing said about duress. The only thing they went upon was the De Meerleer case which he mentioned here yesterday and that was grounded on the failure to appoint counsel, failure to inform him on the consequences of his plea and -- and the fact that he was rushed into a hearing without experience and it was frankly verbatim De Meerleer But after they had the hearing under the delayed motion for a new trial which followed this hearing, part of it, then they Sheriff Struble made a remark about the tension on that that time and then he brought that in and I'd like to refer the Court to where that happened. On page 9, the grounds of the delayed motion for a new trial are sent out in my brief and they're verbatim from De Meerleer. And then, on -- on page 23 at the delay hearing on the delayed motion for a new trial, after Sheriff Struble testified, Willie Moore testified, Mr. Roxboro advised the Court as follows. No, excuse me. Before he -- before the proceeding started, and Mr. Roxboro informed the court as follows. “So, there won't be any misunderstandings. We aren't relying on any general allegation. We are relying on just two things, on this record and on the De Meerleer case. I would like to call the court's attention that at the time Willie B. Moore -- and at that time, Willie B. Moore was 17 years of age.” I don't -- I've better put on my glasses. The extent of his education then was at seventh-grade education and it is our contention that he did not have a fair trial and that contention is substantiated by the case of De Meerleer versus the People on the State of Michigan and then he quoted -- cites it then. It is our contention that this case is directly in point and fits on all four the case before the bar at that time and then the assistant prosecutor who was conducting the examination said, so there won't be any mistakes, I want this to be down if that's what they're going on, but then after Rubel (ph) testified and Willie Moore testified, they asked to amend the motion for a new trial to include duress and so on. The -- and the court allowed them and continued the hearing and they brought in more witnesses and the people brought in more witnesses. Now, there was something said here about the promise of leniency made by Mr. Chapman. The record shows that Willie Moore said that Mr. (Inaudible), the prosecutor promised him leniency and that this was okayed by Chapman. Now, we -- the people weren't able to refute that for this reason. First of all, Mr. (Inaudible) is paralytic now. He can't speak and the record shows that. He's an old man and he's just -- and that -- and that he's suffering from incapacity and Chapman is in Florida and he weren't -- they weren't able to get him and that's why that wasn't refuted. But anyhow, after that happened, the judge heard all the witnesses, both pro and con and the -- all the testimony regarding the fact that there was duress and so on, appeared to Willie Moore. The only other testimony regarding the tension in the community came from Sheriff Struble who said that the -- there was a lot of tension at that time and he told them that he pleaded guilty if he were guilty ought to plead guilty, but he said also that he told him that if he weren't guilty, he'd stand firm and protect you. That's what he said and that's what they're relying on chiefly in his brief. There are other witnesses who took the stand afterwards. Who said screw Hummel and two or three other officers took the stand and said there wasn't any tension in the community, it was a usual thing when you got a murder of this kind. People were talking about it in the record. There was also -- Willie Moore said that he was worried because people banged on his doors. He was in a solitary cell. William J. Brennan, Jr.: Well, Mr. Solicitor General. Samuel J. Torina: Yes, Your Honor. William J. Brennan, Jr.: Wasn't that also his approval that he testified when they took him to Kalamazoo and some other place and -- Samuel J. Torina: -- took him by the (Inaudible) yes. They took him (Voice Overlap) -- William J. Brennan, Jr.: -- route or something because of the tension -- Samuel J. Torina: Yes, Your Honor. He did. You see, they took him to Jackson Prison on the same day. There are two routes and I got it from this record. I'm not a Kalamazoo resident, but he said that he heard there was going to be some trouble. And on a part of a group of colored fellows, they're going to take Willie Moore away and then there was another group of Holland fellows, they were going to interfere, so he said he took the back roads avoiding any trouble. I think he acted like any good law enforcement officer would in a situation of this kind. But I say that in regard to the tension that was disputed by other witnesses, the only -- Judge Fox who was the assistant prosecutor at that time that he wasn't aware of any tension. I tried to describe to you yesterday the jail that was involved and as you noticed, it is quite a structure. Now, the top of that jail, they went as only up to the fourth floor. The top there shows a cement wall if you look at the appendix. Now, that wall surrounds -- the fifth floor is sort of a penthouse and the jail itself is back from the edge of the building, about four feet and then there are windows for look out. But in further, those windows appeared in this cement wall which goes six or seven feet up above the jail and the jail itself is about 60 feet to 75 feet high. Now, the only entrance to these cells are first, the elevator, which has been described and that's used only for prisoners and it's a very small elevator. I think it's about twice as wide as this stand and it has a lock in the basement and it's unlocked when prisoners are taken into jail by the sheriff. Then, it doesn't stop the first floor. It stops at the second floor where the court is and it stops at the fifth floor where the jail is. I don't think he can get over five or six people in that -- in that elevator. And then, there's a stairway to right of there. It's a very narrow stairway and the door leads into the outer room in the jail where the prisoners are booked. It's a very narrow stairway as I'd say and the door is made up of cement -- of steel. And then, there's another stairway that goes into the part where the judge lived at that time.As the record says, the judge had an apartment in the jail himself and that was up towards the front. Now, that door has a very -- that stairway is also narrow and it has a steel door and it only opens from the inside. It can't be open from the outside and then there's another iron door that blocks off any entrance into the -- the main room here, so you can see the situation at this time. I don't believe Willie Moore, when he says there were people there, they couldn't because there's an outer office, it's a very small one and then there's another steel door that leads into where the cell is which is on the right and that -- and left to that is the kitchen and they had a very cook there and I thought it was a very pleasant (Inaudible) better than some hotel I've been in. Earl Warren: Was there any restitution -- was there any reputation of Willie Moore's statement that people have come up there and banged on his door? Samuel J. Torina: Yes and Struble and a couple of other said that there were (Voice Overlap) -- Earl Warren: Struble, who is Struble? Samuel J. Torina: He's the sheriff at that time. Hummel said it and a couple of other people. And incidentally, Struble said that they used to have crowd there but they were church groups (Inaudible) And this cell as I say isn't really solitary, there are two -- two bunks in it and they had a good will drunken at the day I was there and it's used as a federal prison too, so that's the situation. And everything that Willie Moore contended here came out of the hearing that day and he's complaining about that hearing now in saying, “We can't use that reconstructing testimony,” but I don't think that's fair. To use a testimony to support his side of the argument and then try to prevent us from doing -- doing it. I don't know how you remember a famous two-handed archer in mythology. He's going to act on his right hand and if he missed it, he then changed it and shot you with left hand. And I think that's exactly what's happening to us here. Anyhow, I believe that our brief shows that all of these contentions have been denied. Three courts have passed on it, the trial court before whom appears, he appeared to have a chance to observe misdemeanor and he came into conclusion, no compulsion were used. Then, he had the judge on the hearing on the motion for a new trial and he said he didn't believe Willie Moore. Speaker: (Inaudible) Samuel J. Torina: I -- I didn't know (Inaudible) Speaker: (Inaudible) Samuel J. Torina: The 1948 and he died just after the Quicksall case which he passed on. He was the same judge incidentally in that case. What I know of, I mean he's a very kind gentleman and was most meticulous in his cases. His statement not stereotype. It goes into details and then after Judge Sweet passed on it, our Supreme Court passed on it and they decided it on the question of facts, the credibility of Willie Moore and I think that is the whole issue here. Whom are you going to believe, Willie Moore now after waiting all this time? Or you're going to believe the Court which had a chance to observe misdemeanor? I think under the facts and circumstances in this case, our State has done everything possible to provide due process for Willie Moore and the judgment should be affirmed. I think the Court -- if there are any questions, I'd be glad to answer them but I'd appreciate your attention and your time. Earl Warren: Thank you. Mr. Culver, do you -- yes. You have a little time left. You may proceed. William H. Culver: If the Court please. First of all, I would like to indicate to the Court that clearly the issue of duress and the arrest and coercion is in this case. The record shows that the Court granted a motion of attorney Roxboro to bring that into the case and that secondly, I wish to point out to the Court that although at one time, this was based on the De Meerleer case in the initial part of the proceeding that subsequently after Mr. Roxboro heard the testimony and after he got into -- into the proceeding that it was extended and we would ask as I've indicated when we started out, the attempt is to put this into a category with, we'll say De Meerleer and Quicksall or something like that. This case is the case as they all are seems to me onto themselves. And then finally, I would like to answer Mr. Justice Frankfurter's question which I think he recently asked and which I think raises the distinct problem here and that is, how do you get around the fact that the trial judge, Judge Weimer said, “I'm satisfied that this is freely and voluntary made”. And I -- I submit the answer to that is that no one, not even Mr. Moore's lawyers knew until 1951 of the fact that Sheriff Struble had been afraid and had warned Mr. Moore that if he -- if that -- he was afraid that he couldn't protect you. And therefore, that even though the statement by Judge Weimer was contemporaneous with the -- with the sentence that I submit that Judge Weimer himself didn't know what we know right now and that was that the sheriff has told his men that he couldn't protect him. Now, he knew all the rest of the things. He knew about the youth and inexperienced Mr. Moore but he didn't know the facts that we know now. And therefore, I submit to you that we -- we wish to depend upon this delayed -- this right of a delayed motion and the right to this testimony in the record because it does show something that is going -- that's why we'll show up again before this Court and that is that the sentencing judge on a plea of guilty may not know all of the circumstances and it can only be dug out by an attorney and by cross examination. And another thing I'd like to point out is that after Mr. Struble, the sheriff was put on in testifying in this case that the prosecution then spend a day and a half trying to -- to prejudice trying to show that Mr. Sheriff Struble was wrong and of course you've got the pictures of the jail and everything that shows that this man couldn't possibly has been subject to duress. But you'll notice that nobody -- that -- that he wasn't in that jail all the time that he was only there one night according to Sheriff Struble and nobody agrees about that and I submit that it's outside the record, but the man was kept in the police headquarters in a jail in the basement or if you want to get down there, you just walk down the stairs. You don't have to go pass an officer at all. So, I submit to the Court again that the issue of duress and coercion is before the Court and it's in the -- in the record. And secondly, that he didn't -- we don't pretend that this is the De Meerleer case.We think it looks a little like the De Meerleer case. It looks a little like the Quicksall case, but that's -- that the -- our only hope of success, I submitted the fact that this Court is the last word and that this will be a People versus Moore case which you don't try that to correlate and say, “Well, it doesn't fit in any case that's been before the Court exactly.” Felix Frankfurter: Mr. Culver, before you sit down. What lead you to say that the sheriff told Willie Moore that he couldn't (Inaudible) I thought I read in the (Inaudible) just the opposite? William H. Culver: I -- I think if the Court please that in reading page 52 and 53 -- in 52 he says, I told him if he was guilty, he might better own up -- Felix Frankfurter: But before that. William H. Culver: Where is that? Felix Frankfurter: Did you tell Willie Moore that he couldn't protect him or words with that effect (Inaudible). You didn't tell him that? No. William H. Culver: Yes, sir. But then he contended and he says, “It is my duty and it's up to me to protect you, to use every effort at my command to protect you. But I said the tension is high out there and I'm just telling you what could happen if it was started by someone else. I don't know what language I used in the end. Regardless, that was substantially what he said. Now, we know the reaction of that statement, I mean, if he said it to you, I wouldn't -- certainly, wouldn't have frightened you probably. But he said it to this Willie Moore and Willie Moore has testified and I think it's uncontradictive that after the man told me he couldn't protect me, otherwise that's what Willie Moore -- Felix Frankfurter: That was Willie Moore said 11 years later -- William H. Culver: That's right. Felix Frankfurter: -- that what he thinks the sheriff said, nothing is more to him than people asking why -- beginning to think things we've said and weren't said. William H. Culver: That's -- Felix Frankfurter: That's the most common plaything in -- on the part of a perfectly honest people. William H. Culver: That's correct. William O. Douglas: Why didn't you bring that out (Inaudible). William H. Culver: In 1948 or 1949? Speaker: (Inaudible) William H. Culver: I believe, if the Court please, because it appears that his attorney at that time was not too well versed in the fact of the matter. Speaker: (Inaudible) William H. Culver: Yes. Yes, sir. Earl Warren: Mr. Culver, I -- I know the Court would have me say to you that you're appreciated of the great time and effort that you have put in without compensation for this penniless prisoner and regardless of the way your case might turn out, you've rendered a real service to the public and used them as a credit to the bar. And Mr. Solicitor General, we appreciate your frankness and your zeal in defending the laws in the institution of your statement. Speaker: (Inaudible)

William H. Rehnquist: We'll hear argument now in No. 96-7185, Garrit Bates against the United States. Mr. Oren. C. Richard Oren: Mr. Chief Justice, and may it please the Court: This case comes before you today as a result of the dismissal of an indictment by the District Court in the Northern District of Indiana in April of 1995, prior to the taking of any evidence in the case. However, the challenge to the sufficiency of the... of the indictment actually began many months prior to that in an official conference I had with Mr. Bates in my office. At that time we went over the indictment paragraph by paragraph. At the end of that process, Mr. Bates thought for a minute; he looked at me, and he said: Yes, but what is it they're telling me I did wrong? And I said: Well, Mr. Bates, I believe that they're saying that you misapplied Federal student loan funds. Mr. Bates thought about that for a minute and then he said to me: Yes, I understand that, but what is it specifically they're saying I did that was illegal? And I went back and I looked at the indictment and I found that I could not really answer that question for him. I believe that exchange underscores the importance of this Court's standard for judging the sufficiency of an indictment. That being that all elements of the offense charged must be stated and that the indictment should fairly inform the defendant of the charges against him, as well as be sufficiently specific to stand as a bar to further prosecutions should there be a conviction or an acquittal. So what I'm asking of this Court is to strictly examine the indictment that was brought before Mr. Bates... that was brought against Mr. Bates. William H. Rehnquist: When you... you say strictly examine, Mr. Oren, are you suggesting some extremely skeptical scrutiny of the language of an indictment? C. Richard Oren: No, not extremely skeptical, Your Honor. I... I believe I'm using that in the sense that prior to evidence being taken, the only thing we have to look at is the indictment. If... if there was dismissal after evidence had been taken, then I think that if there was no prejudice shown, then if the indictment was not sufficient, it would still not really-- William H. Rehnquist: So here you're saying all we have to look at is the indictment and nothing more than that? C. Richard Oren: --That's... that's correct, Mr. Chief Justice. The indictment here is set forth in the joint appendix at pages 2 through 12. It is actually structured in two portions. The first portion is a series of basic background factual allegations. And the second portion are 12 specific charging counts, if you will. Directing the Court's attention to the first, the factual allegations, it provides, first of all, various background information and then some specific allegations of conduct against Mr. Bates... or by Mr. Bates. As a background information, it... it alleges that a James and Laurenda Jackson owned the Ax... Acme Institute of Technology. William H. Rehnquist: Now... now, Mr.... Mr. Oren, the question presented here in the petition for certiorari is whether intent to injure or defraud the government is an element of the offense of knowingly and willingly... willfully misapplying Federal student loan funds, in violation of the statutory section. And I... I think the... the government apparently agrees that the indictment does not contain any allegation that it was done with an intent to injure or defraud the United States. So the question we have before us, as I would understand it, is: Is that an element of... of the offense? And I don't see why we need to be concerned with the various detailed allegations of the indictment. C. Richard Oren: My reasoning for bringing this to the Court's attention is that the... again, the sufficiency of the indictment depends, I believe, on the actual setting forth of the elements of the offense in the indictment. And-- William H. Rehnquist: Yes, but we're... we're not canvassing the indictment for some shortcoming. It's a very precise issues that's... that you have presented in the question for certiorari. C. Richard Oren: --Yes, all right. Assuming, then, that the government is agreeing that there is no factual allegations alleging... of the elements of the... of the offense, as we believe it to be-- Sandra Day O'Connor: Well, there's no agreement on whether it's an element of the offense. I mean, whether fraudulent intent is an element, is there... there's no agreement? C. Richard Oren: --No, there is not. It is my understanding that, at least in the courts below, the government has agreed that conversion, or un... unauthorized use of property to the benefit of the defendant or a third party, is an element of the offense. But where there is no agreement between the government and Mr. Bates is that... whether or not fraudulent intent or criminal intent is an element of the offense of knowingly and willfully misapplying student loan funds. Ruth Bader Ginsburg: Well, it doesn't say it's... here's the statute, 1097(a)... it doesn't say "with intent to defraud the United States. " Why should we read that into it? C. Richard Oren: Well, this does present an issue of statutory construction, Justice Ginsburg. I believe that there are four principles that... of statutory construction that would support this reading. The first of that is... the first principle would be the actual language of the statute itself. I believe there are indications in there that... of the scienter element. That being the words of the term "knowingly and willfully", as modifying "misapplies". Ruth Bader Ginsburg: Well, he was charged with that... several counts of knowingly and willfully misapplying Federal money, was he not? C. Richard Oren: Yes. Ruth Bader Ginsburg: That was the language used. C. Richard Oren: That... that is correct. David H. Souter: And your argument, as I understand it, is that "knowingly and willfully" somehow incorporates a fraudulent intent, even though the statute otherwise, in describing not merely the... in describing not the... the... the offense of misapplication, but a different kind of offense, of obtaining, refers expressly to fraud as one forbidden means of obtaining property. And... and isn't that the nub of your problem? The statute refers to fraud elsewhere, but you want us to import the concept of fraud into... into a term which, on its face, has no apparent reference to fraud? C. Richard Oren: I am using the term "fraudulent intent", I believe, as synonymous with or indicative of what would be called specific intent of the common law or illegal purpose. I think fraudulent intent is actually very descriptive of specific intent when it comes to the use or misuse of money. So what I am suggesting is that fraudulent intent is specific intent or illegal purpose, and that that is in fact an element of the offense of misapplication of funds. David H. Souter: Well, leaving aside whether you are entitled to or not, didn't you get... didn't the Seventh Circuit take the position that the government would have to prove... under the... the concept of "willfully", that the government would have to prove that the misapplication was made with an understanding of... of... of... that it violated the law? Wasn't that the Seventh Circuit's definition of "willfully"? C. Richard Oren: The Seventh Circuit, in my estimation, issued an opinion which was slightly confusing. Because, in one part, they did refer to the burden of the United States to actually prove some knowledge of wrongdoing. Yet, on the other hand, they said that the offense of willful... of willful... knowingly and willfully misapplying funds did not include the... the element of fraudulent intent. David H. Souter: Yeah, but fraudulent intent, as we normally use the term, is something different from an intent to misuse property with knowledge that the misuse is in fact forbidden by a Federal statute. Those are two different concepts. And I don't see any inconsistency between those two aspects of the Circuit opinion. Why are they inconsistent? To obtain by fraud, as we normally mean it, is to... is to make a... a misrepresation... misrepresentation of fact to someone as a means of getting that person's property. C. Richard Oren: Yes. David H. Souter: And that's something entirely distinct from committing an act, whatever the act may be, with the knowledge that there is a statute that forbids the act. And it seems to me that that's the... that's the distinction, certainly, inherent in the Seventh Circuit opinion. And I don't see why it's a distinction that isn't a perfectly valid one. C. Richard Oren: I would... I... I guess, rely on the Morissette case, where the... this Court held that a knowing conversion of government property included a criminal intent, which would require the government to show that the defendant, Morissette, had knowledge of all the facts, which would have made his conduct a conversion. And I do not believe that that holding is exactly what was being stated by the Seventh Circuit. Antonin Scalia: It seems to me that... it seems to me the equivalent of that in the current context would be knowing all the facts that renders the... the action a misapplication. Wouldn't that be the precise equivalent of what went on in Morissette? C. Richard Oren: Yes. Antonin Scalia: And... and do you think the... do you think the holding here did not require him to know all of the facts that... that rendered this a misapplication? Unless I'm mistaken, you're... you're demanding that he know more than the facts that rendered a misapplication. You're demanding that he not only knew all those facts, but that he also had some... what should I say... criminal motive in the misapplication. And I thought that's what we're fighting about. And I don't see that Morissette speaks to that at all. C. Richard Oren: I believe that Morissette speaks to this issue in this way. Morissette referred to a species... or it referred to every stealing being a conversion, yet not every conversion being a stealing. What Morissette, I believe, was doing was distinguishing between the tort of conversion as opposed to a criminal conversion. And in... in... again, in Morissette, they referred to a type of conversion which could occur when the property first came into possession of the defendant in a lawful manner, but was later misused. And I believe that that type of conversion, that species of conversion, is exactly what misapplication is. William H. Rehnquist: Well, Mor... Morissette was a statute which didn't contain any requirement of intent, wasn't it? C. Richard Oren: I believe that it stated the modifying term of "knowing conversion" in... in the statute. To that extent, it... it did indicate that there was an element of tent... of intent present. Antonin Scalia: The words of Morissette are... are these: A knowing conversion requires more than knowledge that the defendant was taking property into his possession. He must have had knowledge of the facts, though not necessarily of the law, that made the taking a conversion. Now, if you apply that same text to the present case, I think you'd say... you'd say, knowing misapplication requires more than knowledge that he was applying the property; he must have had knowledge of the facts, though not necessarily the law that made the application a misapplication. And... and there's no quarrel that that's properly charged, is there? C. Richard Oren: No. That... I... I believe that would be a proper statement as to the offense of misapplication. And I don't believe that I was trying to suggest anything more than that in my use of the term "fraudulent intent". David H. Souter: But the... the Seventh Circuit would give you even more than Justice Scalia just suggested that you were entitled to. Under the Seventh Circuit opinion, you would... you would be entitled to an instruction that the government had to prove that you knew you were violate... your client knew that he was violating the law. So you're getting more, in fact, than... than... on your... on your own theory, Morissette would give you. C. Richard Oren: I really do not know how to answer that. I did not read the... the Seventh Circuit opinion in that... in that manner. Ruth Bader Ginsburg: What do you do with the... the 1097(d), which states, in so many words, that there must be an intent to defraud the United States, with intent to defraud the United States? That very language in the same section, in (d), is omitted from (a). So if it's in (d) and it's not in (a), wouldn't one infer that Congress didn't mean it to be read into (a)? C. Richard Oren: I believe that, first of all, they're talking about two separate types of actions in (a) and in... and in (d). I think the... and in subsection (d), they're talking about destroying or concealing property with fraudulent intent. In those words, in normal usage, would not be... destroying and concealing property would not ordinarily have a criminal consequence. Stephen G. Breyer: Didn't you win this? I mean, I... I'm trying to put your argument in a way that, to me, was the strongest. And maybe you don't mean it this way. But... but there seem to be two parts. One, in the "willfully" part... and I take it you won that... that the government is going to show that your client knew that what he was doing was unlawful. Didn't you win that part? C. Richard Oren: I believe perhaps we did, yes. Stephen G. Breyer: All right. So the government would have to show, whatever your client did, he knew it was unlawful, as far as the lower opinion goes. Then there seemed to be a second part, what you're calling fraudulent intent, which doesn't have to do with the first part. Now, in reading the opinion, but not your brief, I thought they were... the words "fraudulent intent" covered two separate things: intent to defraud, which isn't involved here because there isn't a misrepresentation, or intent to injure. They worked with that second part, "intent to injure or defraud": intent to injure the government or to defraud the government. And, of course, the government would show intent to injure, in that it would be the known consequence of what your client allegedly did. He deprived the government of the use of some money. That injures the government. I took the Circuit as saying the issue is whether there has to be a specific intent to injure; i.e., do they have to show that your client wanted, in the sense of purpose, to hurt the government? C. Richard Oren: Yes. Stephen G. Breyer: Now, if you're going to tell me this argument is not in the case, I'm prepared to forget it. And I don't want to make an argument for you, but I... I... I want to... when I read the... not necessarily the brief, but the opinion below, I thought maybe you were talking about specific intent to injure the government. If you're not, if you're talking about specific intent to defraud the government, I agree with Justice Souter; I don't see that it's here. C. Richard Oren: Right. I believe I was using the term "fraudulent intent" to refer to specific intent and illegal purpose. As that relates to this indictment, I do not believe that the Seventh Circuit opinion would have provided us with any greater information about what use the government was alleging was the problem with Mr. Bates' conduct. Anthony M. Kennedy: Do you agree that, if all of the facts in the indictment are established, that there was a misapplication? C. Richard Oren: No, I do not. I do not agree with that. I do not believe that the indictment states facts that show a misapplication, nor-- Anthony M. Kennedy: Well, is... is... is that the problem, then, and... and not the precise formulation of the scienter that's required, since we have "knowing and willful"? Why was there no misapplication, in... in your view? C. Richard Oren: --The indictment does not state any factual allegation of any use of the funds by Mr. Bates. It does... it states, I believe-- Anthony M. Kennedy: Wait a minute. Does... does he have to use the funds, if he... if... if one diverts funds from, say, a trust fund... I know that that wasn't what this was... but if one diverts funds for an unauthorized purposes, that's a misapplication, is it not? C. Richard Oren: --Yes. But-- Anthony M. Kennedy: So it doesn't have to be for his own use. C. Richard Oren: --The allegation is not in the indictment that Mr. Bates did anything with the funds. William H. Rehnquist: But what are the allegations as to Bates' conduct were sufficient to state an offense? That's not the basis on which the District Court dismissed the indictment and that's not the basis on which the Court of Appeals reversed the District Court. And that's not presented in your question here. C. Richard Oren: The argument that I have presented consistently from the District Court's opinion was that there were no factual allegations setting forth the elements of the offense. And if you look at the-- William H. Rehnquist: You're... you're limited, Mr. Oren, to... to the question presented here. And the question presented in your petition is whether intent to injure or defraud the government is an element of the offense of knowingly and willfully misapplying Federal student loan funds, in violation of the statute. C. Richard Oren: --Yes. Yes. I agree that is the question presented. The reason we got to that point as being the question presented is because there was nothing in the factual allegations to suggest the elements of the crime. And if you look at the actual charging counts, it states the words of the statute. And it's our position that the term "misapplies" is intrinsically vague. William H. Rehnquist: Well-- C. Richard Oren: And-- William H. Rehnquist: --But, now, it does allege that he did knowingly and willfully misapply; there's no doubt about that, right? C. Richard Oren: --That's... that's correct. But it is intrinsically vague. Thus, I believe that to meet the standards of actually setting forth the elements, the... the indictment should have stated at least the conceptual elements of the-- William H. Rehnquist: But that... that's not the question you've brought here. The... you know, I don't want to repeat it again. C. Richard Oren: --Yes. William H. Rehnquist: But we granted certiorari on a particular question, and it's not that one. Do you understand what I mean? C. Richard Oren: Yes. Yes, I do, Your Honor. Stephen G. Breyer: Would it help if I asked what do you think they should have added... maybe that would... in terms of purpose of fraudulent purpose? What I read is that they say that Mr. Bates was the treasurer; that by March '89, the refund liability had grown to 85,000; that there was a report which said that the institution of which he was the treasurer didn't make the refund to the government, and instead loaned a lot of money to the chief trustee and other institutions. And in light of that, I take it, he... they charged that the defendant knowingly and willfully mis... misapplied the money, or some of that money. All right. Now, what, in your opinion... what word should have been added to this indictment that would help, from your point of view? C. Richard Oren: Well, I think, at the very least, that the... the indictment should have stated that it... that the defendant did knowingly and willfully misapply funds, in a certain amount, by converting those funds to his use, with-- Ruth Bader Ginsburg: By what? I'm sorry, I didn't hear. C. Richard Oren: --By converting those funds to his use, or the use of a third party, with intent to defraud. That, I believe, would have made this indictment barely sufficient, so that Mr. Bates would have at least known the essence of the charges against him. Antonin Scalia: Well, he knew the charge was... was that he knowingly and willfully misapplied. If I understand your position, he knows that the statute requires you to use the funds for X. He knowingly and willfully uses the funds for Y, and, according to the Court of Appeals opinion, knowing that that's a violation of the law. He not only knows that he's using it for Y instead of X, but he knows that that is a violation of the law. You say that that's not enough, right? You're saying he must, in... in addition to misapplying it, intend, by the misapplication, to defraud the government? C. Richard Oren: I really did not intend for the... I... fraudulent intent... I did not mean to convey the thought that... that fraudulent intent was specific as against the United States. That, I believe, was the-- Antonin Scalia: Or to defraud somebody. C. Richard Oren: --To defraud someone. Antonin Scalia: To defraud... defraud someone. It's not enough that he knows the statute tells me to use the money for X; I'm going to use it for Y. And you say he can do that without violating this statute so long as, in ignoring the command to use it for X, he was not trying to defraud anybody. He's just... he just... I don't know... he thought the statute was silly or inconsequential, so he said, I'm not going to use it for X, I'm going to use it for Y. And you say that's okay; that... that maybe... maybe they can get that corrected, but it's not a crime. C. Richard Oren: I believe my point was that we are not informed of what the factual misuse is. Antonin Scalia: No, now you're back to the pleading question-- C. Richard Oren: Right. Yes. Antonin Scalia: --that the Chief Justice keeps telling you is not in this case. It's really not in this case. I mean, you've got to get back to tell us what you... what it... what it is. Anyway, they do say what the factual thing is. They say that it went to the... he used the money for these other people. He... he gave it to the... he loaned substantial amounts of money to the chief trustee and a non-related profit-making institution. C. Richard Oren: In which paragraph of the indictment? Stephen G. Breyer: In... in paragraph 13. C. Richard Oren: That statement, or allegation, does not say anything about Mr. Bates' conduct. They... there are a lot of allegations in this about other people; that doesn't inform us about Mr. Bates' conduct. And the reason that I have used the term "fraudulent intent" is that I was using it in the sense that it was used... in the sense that it is a specific intent, an illegal purpose, to distinguish the same type of... of behavior in a misapplication scenario, as was distinguished in Morissette, a... the tort of conversion from the crime of conversion. I believe this is just a subset of that, and that, at the very least, that element of fraudulent intent should have been set forth in the indictment, inasmuch as that would have-- John Paul Stevens: Well, it really boils down to what does the word "misapply" or "misapplication" mean. They said "knowingly misapply", and you say, when you say "misapply", it includes a lot of other stuff other than doing the wrong type of thing with the funds... knowing what the right thing was. But this all turns on what the word "misapply" means, doesn't it? C. Richard Oren: --Yes, it does. John Paul Stevens: You read a lot into it; they read very little into it. They wouldn't even read the... as I read their brief, they wouldn't even require you to know that it was a misapplication. All you have to know is what you did with it. Which seems a little extreme to me. C. Richard Oren: Yes. John Paul Stevens: Yes. Thank you, Mr. Oren. C. Richard Oren: Thank you. William H. Rehnquist: Ms. Blatt, we'll hear from you. Lisa Schiavo Blatt: Mr. Chief Justice, and may it please the Court: The decision below is correct, because both the text and structure of Section 1097 compel the conclusion that an intent to injure or defraud is not an element of the misapplication offense. Anthony M. Kennedy: But would you agree with the... with the Circuit that the misuse has to be knowing, that it's an exercise of control or dominion that's a violation of the law? Lisa Schiavo Blatt: No... I mean, yes, we disagree. In our view, the word... all that's required is that the defendant know that his use of the money is unauthorized. The defendant does not also have to know the source of the prohibition or that using the money in an... in an unauthorized manner was a violation of the law. Anthony M. Kennedy: If the term "misapply" is not clearly established in the law, then does not that argue in favor of... of interpretation of "willful and knowingly" such as the Circuit gave, knowing that is a violation of the law? Because "misapply" is... is, I take it, not a well-settled term in... in our jurisprudence... or is it? Perhaps. I don't know. Lisa Schiavo Blatt: The Court said in United States v. Britton, in 1883, that misapplication was not a technical or a word at common law; it was a word created by statute. And in that case, the Court gave it a definition of misapplication to one's use or the use of another of someone else's funds. And that meant it was a conversion. Anthony M. Kennedy: These funds did not have to be segregated at... at the time of the conduct here, did they? They didn't have to be put in a segregated account, did they? Lisa Schiavo Blatt: That's correct. Anthony M. Kennedy: Could a third-party creditor have levied on them? Lisa Schiavo Blatt: I... I don't know the answer to that. I don't. David H. Souter: Ms. Blatt, let me... let me just raise the difficulty that I have with... with the government's position that the... the source of the prohibition need not be shown; that the knowledge of specific illegality need not be shown. The mens rea requirement is knowingly and willingly. Willfully. And if... if we exclude from the possible meaning of "willingly" this intent to defraud... and I... I will so assume, what's left for the meaning of "willingly" as... or "willfully"... I'm sorry... as something in addition to "knowingly"? The... the Circuit, I thought, made a pretty good... good guess at it. And I realize that our prior cases that have construed it that way have been tax cases, but what else could it plausibly mean? Lisa Schiavo Blatt: Well, we think here it means what it means in almost every case. And that is "deliberately". Which is... which is how the Court construed the words v. Browder. And the... and so the common understanding of the word "willfully" is intentionally. And-- Antonin Scalia: What... what is "knowingly", then? Yeah, that's the... that's the trouble. Because-- --It just repeats "knowingly". I mean, surely "knowingly" means "intentionally", you know. Lisa Schiavo Blatt: --Sure. Let... let me address that in... in several parts. This Court, in Morissette, said... used the words, both "intentional" and "knowing". And you could certainly have a knowing act that's not deliberate. I agree that it would be very difficult to have a deliberate act that's-- David H. Souter: Well, you could have a knowing act that is not purposeful, in the sense that the model penal code makes the distinction. But how can you have a knowing act that is not deliberate? Lisa Schiavo Blatt: --I... I push you into someone and you knowingly hit that person, but you're not deliberately hitting that person. Speaker: It's not voluntary. Lisa Schiavo Blatt: Right, it's not vol... right-- Speaker: So that that's-- Lisa Schiavo Blatt: --right. In our view, the word "willfully" means voluntary, deliberately, in the sense that the act is... is done voluntarily. John Paul Stevens: --But when you-- --Excuse me. I'm sorry. Lisa Schiavo Blatt: Which is, again, I think, the way the Court construed it in Browder. But let me make one other point. If you construe the word "willfully" to mean a voluntary, intentional violation of a known legal duty, as in Pomponio, I... I still think you have the same problem with the word "knowing". Because it's hard to have an unknowing, intentional violation of a known legal duty. William H. Rehnquist: The government didn't cross-petition here, did it? That's right. Lisa Schiavo Blatt: No. William H. Rehnquist: So we really don't have to decide-- --Right. --whether the Court of Appeals was right in what it said? Lisa Schiavo Blatt: That's exactly correct. We just wanted you to know our view. And... and, in our view, the words "willfully and knowingly" would just require that the defendant know that his use of the funds was unauthorized. John Paul Stevens: But you... but you... you do seem to say that he had to know that it was unauthorized. So he has to have some knowledge of the duty, some knowledge of what his duties were. Isn't that your position? Lisa Schiavo Blatt: Yes, the defendant must know that the money in... in this case belonged to the... the lender after the student withdrew. He did not have to know that the source of the... of the prohibition of holding on to the money when it belonged to someone else. John Paul Stevens: But did he not, un... under your view, have to know that there were regulations out there that required him to use the funds in one way rather than another? Lisa Schiavo Blatt: No, not in the sense of specific regulations. No. It so happens in this case that it is alleged that the defendant was familiar with the Department of Education's regulations. Anthony M. Kennedy: Well, at page 15 of... of your brief, you say the element requires that the defendant be aware that his use of the funds is unauthorized or wrongful. Lisa Schiavo Blatt: That's correct. And-- Anthony M. Kennedy: I... I'm not quite sure how that squares with the answer you just gave Justice Stevens. Suppose he doesn't know about the regulation? Lisa Schiavo Blatt: --Right. Well, he'd have to have some other way of knowing that the use was unauthorized, such as the school's manual required the refunds back to the lender in order to reduce the student's debt. Anthony M. Kennedy: So there... there's a... a felony if you violate the... the... the provisions in a school's guidebook or manual? Lisa Schiavo Blatt: There's a felony if you knowingly and intentionally convert money when you know the money truly belonged to someone else. And that's a... it's definitely... it's a property crime. It's the crime of conversion. And all we're saying here is that the defendant's acts must be deliberate and the defendant must know that this money belongs to someone else. Stephen G. Breyer: Well, the ordinary person, I guess, knows when he takes somebody else's money and uses it to buy something that the other person doesn't really want him to do, that that's probably a crime... ordinary conversion. Lisa Schiavo Blatt: Right. And what this-- Stephen G. Breyer: And, all right, what about the 40,000 pages of... of rules that govern, in detail, how one is supposed to apply Federal money; anyone who violates any one of those rules is... is guilty of a crime? Lisa Schiavo Blatt: --No. I mean, there would have to be two things. There'd have to be the requisite criminal intent, and there... there would also have to be the conduct of the conversion. And just a... a technical violation of the rule... for instance, if the defendant miscalculated the amount of the refund, that would be a violation of the regulation, but you wouldn't have the requisite criminal intent. John Paul Stevens: What do you mean by requisite criminal intent? I don't understand. Lisa Schiavo Blatt: That the defendant... that his conduct be deliberate, and the defendant know that the money should have been returned. John Paul Stevens: For what reason should it have been re... just have some general hunch it should have been returned or must he know why it should have been returned? Lisa Schiavo Blatt: In this case, and in most cases, the source of the knowledge is going to be the law, because it will be the Department of Education's regulations. Our point is that the word "willfully" does not have this meaning of requiring knowledge of illegality. Which is the way the Court of Appeals construed it. John Paul Stevens: But do you... do you understand this indictment to require the prosecutor in this case to prove that this defendant knew that there were regulations that he'd violated? Lisa Schiavo Blatt: No. The indictment just said he had to act willfully. Which, again, in our view, would mean he had to act deliberately. John Paul Stevens: But you also said with criminal intent... he could have criminal intent even if he did not know that the regulations prohibited what he did. Lisa Schiavo Blatt: As long as he has another... some knowledge that his conduct was prohibited. John Paul Stevens: But the only thing that prohibited the conduct was the regulations. That's the... that's the source of his duty to do something else. And you say he does not have to know... he has to know the duty. How could he know the duty without knowing what the regulations require? I don't understand. Lisa Schiavo Blatt: He could have... the source of the duty could not only come from the school's manual, it could come from his boss-- John Paul Stevens: But... but it didn't in this case. Lisa Schiavo Blatt: --Right. John Paul Stevens: We're trying a particular case in which it... there was a misapplication, because what he did, did not conform to some regulations. Lisa Schiavo Blatt: Right. John Paul Stevens: You agree you must prove that he knew what he did was wrongful. And the only reason it would be wrongful was that he didn't comply with the regulations. But you say you don't have to prove he... he knew he was not complying with the regulations. Lisa Schiavo Blatt: In this-- John Paul Stevens: Your position is inconsistent. Lisa Schiavo Blatt: --In this case, Justice Stevens, I think the proof would come, and the indictment does allege, that the defendant knew of the legal requirement to pay refunds. John Paul Stevens: So, then, you are... are agreeing that in this case you must prove that he knew he was violating the regulations? Lisa Schiavo Blatt: No; I'm saying in this case we can prove that. I'm not saying that we must prove it. John Paul Stevens: Well, how else could you prove a knowing misapplication in this case? Lisa Schiavo Blatt: Oh, in this case, if the defendant had read the manual or if the defendant had a discussion with the financial aid director and the financial aid director said the Department of Education requires this. He would understand that okay, this money needs to go to a lender. And he's intentionally engaging in a wrongful act by holding on to it. John Paul Stevens: But that's because you would have proved that he knew that the regulations required it. His knowledge may have come through an oral conversation; he doesn't have to read the regulation. But I... I do think you either have to agree that you have to prove that he knew he was violating a government command or you don't have to prove it. And I think you've admitted you do have to prove it. Lisa Schiavo Blatt: No; I... I've admitted we can prove it. I don't think we do have to prove it. John Paul Stevens: But what other way could you prove know... knowing misapplication in this particular factual context? Lisa Schiavo Blatt: If the school's manual set forth... which, in this case, it did... the duty to return money after a student's withdrawal. You could also have a situation where the person-- John Paul Stevens: Do you think that would be a crime even if the government regulations didn't require it? Lisa Schiavo Blatt: --No. That wouldn't be a crime... not because of the intent, you just wouldn't have the crime of conversion. If the money is in fact not used consistent with its authorized purposes, you would not have a crime to begin with. Antonin Scalia: Yeah, but, Ms. Blatt, I'd... I'd really like to at least get a... a few of your thoughts on the issue that was actually brought up before us. And... and if... if no one else thinks it's even worth talking about, I do anyway. Let's assume... it seems to me it... it's... it's not as cut and dried as... as you make it out. You... you have a list of words: embezzles, steals, obtains by fraud, false statements or forgery. And in the midst of those words you have another word thrown in that... that doesn't have as much currency in... in the common law, "misapplies". Now, it's a rudimentary canon of interpretation... it's called ejusdem generis... that when... when you have a general word that's in a catalog of other words, you give it the same... the same coloration that those other words bear. That seems very extraordinary to me to find the word "misapplies", as you interpret it, just, you know, well, I know it ought to go in this account, but, you know, I'm going to put it... what... what's the difference, you know. I'm not... I'm not stealing it. It won't hurt the government. I'm just going to put it in this other account. I know it's the wrong account, but I think it's just as good, you know. To find that word, as you interpret it, in the middle of these other ones... embezzles, steals, obtains by fraud, false statement or forgery... and then, you know, to have a... a 1-year--a 1-year imprisonment for it. Why shouldn't I apply the... the... the canon of ejusdem generis and say, yeah, well, I know, you know, it's... it's a strange word, "misapplies"... but if it said "takes", I certainly wouldn't say, if... if you... if you took it without any intent of... of keeping it or anything like that, I... I think it's... it's very plausible that you have to have some wrongful intent in the misapplication, other than you just know you're putting it in the wrong account number. I put it in account 1001 instead of 1008. Who cares? That's not embezzles, obtains by fraud and so forth. Lisa Schiavo Blatt: Justice Scalia, we interpret the word "misapply" to mean convert. Which is... in Morissette, this Court construed, in... in connection with similar words, such as "stealing" and "embezzlement". And the Court said that there are distinctions between those terms. And there's nothing innocent about using property in a way you're not supposed to use it. And... and... and as long as you are performing an act that's deliberate and you know that you're use is unauthorized, it should be a crime. You don't separately need to prove fraudulent or injurious intent. And, again, not only do we have the... the text of the statute, where fraud is separately prohibited, but we have the words "with intent to defraud the United States. " in... in subsection 1097 (d). And it's... it's those textual features and structural features that make it clear that an intent to defraud or an intent to injure is not an element of the misapplication-- Stephen G. Breyer: Suppose that... that you have a university where you're a financial officer and you are dealing with lots of money. And there are probably rules that are... fill dozens of manuals. And you perhaps know them. And one day you say, my goodness, I'm going to pay the grounds men and not the professors for a week. And the reason you're doing it is there's some kind of odd shortage and they're poorer, so you want to pay them. Is it against the manual rule? Yes. You know it. You'd never think it was a crime. Now, on your interpretation of the law, they're guilty. Very well. On that interpretation of the law, looking at your statement of the question, which you thought was a rephrasing of his statement, why wouldn't you read the statute that there would not only have to be knowledge that your conduct was injuring the government, but that you would have to want to injure the government; i.e., you'd have to have a specific intent to injure the government before you would be guilty under such circumstances of a felony? Now, that's... that's taking your... I don't know that I agree with your interpretation-- Lisa Schiavo Blatt: --Right. Stephen G. Breyer: --but assuming that I did agree with your interpretation of 1 of 5,000 accounting manuals that are in a university, shouldn't that person at least have to want to hurt the government, rather than just knowing that the government will be deprived of 10 minutes use of some funds that he put in a different account? Lisa Schiavo Blatt: We do not think an intent to injure is required. And even under the common understanding of conversion and embezzlement, the law is quite well... well settled that an intent to replace the money is not a defense. So you could take your employer's money-- Stephen G. Breyer: Your view, then, is what Congress intended is to take any person in a university educational institution anywhere, and all they do is have to know that somebody in the organization told them, put the money over here rather than there, they're guilty of a felony? Lisa Schiavo Blatt: --Well, you still have to have the underlying conversion. And in the example you gave, I don't-- Stephen G. Breyer: The underlying conversion, according to you, is to take some government funds and use them in any manner, for however short a period of time, contrary to what your boss told you should be done-- Lisa Schiavo Blatt: --Well, and... and-- Stephen G. Breyer: --and the regulation supports the boss? Lisa Schiavo Blatt: --No. And of course you have to convert it to your own use or the use of another. Stephen G. Breyer: Well, the use told about was not necessarily your personal desire. Lisa Schiavo Blatt: Right. Stephen G. Breyer: You desired to put it in account A rather than account B. It may-- Lisa Schiavo Blatt: Well, it still has to be for either your use or the use of a third party. William H. Rehnquist: --I suppose, under Justice Breyer's hypothetical construction, it would be a defense for a person to say, I knew I was taking $40,000 of the government's money, but I didn't intend to hurt them; they have millions back in Washington? [Laughter] Lisa Schiavo Blatt: Right. And it's... it's not a defense to-- Stephen G. Breyer: That suggests that something is wrong somewhere. Yeah-- Lisa Schiavo Blatt: --No-- [Laughter] Ruth Bader Ginsburg: --Just another-- Lisa Schiavo Blatt: No. You can't... I mean, it is... really, it is quite well settled that it's not a defense to either embezzlement or conversion to take money, hoping that the person is not hurt because you're going to give it back. And here, the school cannot defend on the argument that, well, we didn't intend to hurt the government, because these students are ultimately going to repay the loan; the government is not going to be hurt. Or we intended to pay the refund some day. Anthony M. Kennedy: --Well, this wasn't embezzlement, because the funds could be commingled and... and be used, I take it, for other purposes, provided some other funds were adequate, ultimately, to make up the shortfall; isn't that the rule? Lisa Schiavo Blatt: The... the crime here, Justice Kennedy, is... is on the failure to refund on the 60th day. And so the... how they spend the money up until the student withdrawal and the amount-- Anthony M. Kennedy: So if... if a thief comes in and... and takes... and takes the money, it's still a violation not to refund it? Lisa Schiavo Blatt: --Oh, if... if they can't... if it's... if they... if it's not a voluntary act, because someone stole the money-- Anthony M. Kennedy: But I... I thought you said the vi... the violation is not making the refund within 60 days. Lisa Schiavo Blatt: --With the requisite intent. And that would have to be both a voluntary act and a knowing act. And if someone stole other monies-- Anthony M. Kennedy: Well, they don't have the money because they... A, somebody stole it; B, they paid some other account. Lisa Schiavo Blatt: --Well, the distinction, again... and I think the words "knowingly and willfully" would take care of that and you wouldn't, in any event, need to read intent to defraud into the statute... but the issue would turn on whether the act is voluntary and knowing or if, for some reason, it was beyond the defendant's control. And... but that would be the... the guiding principles. And if a defendant is intentionally spending this money that's not theirs and that's not earned until the student finishes the term, and doesn't pay the refund obligation, knowing the money has got to go back to the lender within 60 days, you have a misapplication of Title IV funds. Anthony M. Kennedy: Suppose they think they're going to get other sums to make up the shortfall, and they just... and they... and they don't, something just happens? Lisa Schiavo Blatt: They should not have been spending unearned money. And if they're intentionally spending that unearned money... and... and these schools are fiduciaries with respect to this money as well... if they do not organize their affairs, or intentionally organize their affairs such that money is not available and students withdraw, in our view, the statute would cover it. But... but... but, again, I mean, the issue is whether an intent to defraud or injure would be required, when there's nothing in the text or the history or the structure of the statute to suggest that it should be read into it. I don't... in conclusion, if there are no questions. William H. Rehnquist: Thank you, Ms. Blatt. The case is submitted. Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

John G. Roberts, Jr.: We'll hear argument next in Case 07-591, Melendez-Diaz v. Massachusetts. Mr. Fisher. Jeffrey L. Fisher: Mr. Chief Justice, and may it please the Court: In Crawford v. Washington, this Court made clear that the right to confrontation, at its core, is a protection against a system of trial by affidavit. It is an ancient procedural guarantee that requires the prosecution to prove its case through live witnesses who testify before the jury and who are subject to cross-examination. Introducing forensic laboratory reports, such as the certificates at issue in this case, is the modern equivalent of trial by affidavit. The documents are sworn formal statements. They are crafted purposefully for the express purpose of proving a fact that is an element of a criminal offense, and, as the State forthrightly admits in its brief, they are introduced in lieu of having the analyst called as a witness to the stand. They are therefore quintessentially testimonial evidence. Massachusetts-- John G. Roberts, Jr.: You say -- you say "the analyst". I suppose it doesn't have to be the analyst but whoever they decide to call. So if you had a supervisor who runs the cocaine testing lab and he is the one whose report is submitted, I take it he is the one who would have to show up. Jeffrey L. Fisher: --That's right. Our position -- our position is that whoever the Commonwealth wants to use to prove the fact that they are trying to prove is the person that needs to take the stand. In this case, it would be the analyst. Antonin Scalia: But -- but you would ask -- if a supervisor did it, what would you ask the supervisor? You'd say, you know, did you -- did you do this? Can you testify to your own knowledge that this is what the analysis showed? And he would have to say, no, it was one of my subordinates who did it, but I can tell you he was a very reliable person. How would that -- I don't understand how that would work. Jeffrey L. Fisher: I took the Chief Justice's hypothetical to be that the supervisor had actually done the testing, but if the supervisor had not-- John G. Roberts, Jr.: No. No, I'm saying that he would testify, I guess: I run the lab, these are the people I hire, they know you how to do these tests, and this guy did the test. And since he was the one that the Government decided to -- on whose affidavit they decided to rely, that's the only person you could get. Now, you could -- to impeach him, you say, well, did you do the test? But you say, well -- but I mean you don't have a right to an analyst at a particular level. Jeffrey L. Fisher: --That's right. There is no substantive right. I think everything you've said is right as far as it goes. It just depends what the Commonwealth wants to put in in terms of evidence. Anthony M. Kennedy: Well, suppose-- Jeffrey L. Fisher: If they want to put in-- Anthony M. Kennedy: --Suppose the tests were by John Smith, assistant lab technician, and you call John Smith, and you say, "Is this your signature"? "Yes". "Do you remember doing this test? " And he says, "I do thousands of tests. " "I don't remember. " "I'll tell you the way I always do them. " I mean, is that what you want? Jeffrey L. Fisher: --Well, if that's what -- at a minimum, that's what we want, Justice Kennedy. This Court has made clear in California-- Anthony M. Kennedy: Well, that's what you're usually going to get, isn't it? Jeffrey L. Fisher: --Well, we don't know what we are going to get. In some cases, unquestionably-- Anthony M. Kennedy: Well, you know what you're going to get by looking, number one, at the States which allow this, where this happens all the time. You know what you're going to get in the States where the defendant -- where the defense can subpoena the witness. Now, if there are new tests, complex DNA tests and so forth, I suppose there is a lot to ask about. Standard blood alcohol, not much to ask about. Jeffrey L. Fisher: --But even in a test where the analyst doesn't remember and, as you put it, it's a standardized test, there are still plenty of questions the defendant might want to ask, such as what test was performed? We don't even know from the record what test was performed in this case. What's the error rate on that test? How do your protocols work? What are your experience and credentials in analyzing those? There's plenty of questions the defendant might ask. Anthony M. Kennedy: You can raise all those questions from the fact of the -- from the document. Tell the jury, "This doesn't show what tests were performed. " It's there on the document. Jeffrey L. Fisher: Well, I think that's a choice that defense counsel could make, as the defense counsel always has a choice in a criminal case to decide whether to press the prosecution's evidence or to simply stay silent and then later argue at closing the prosecution hasn't given you enough to prove the case. But to the extent the Commonwealth is taking the position that cross-examining would be fruitless in a situation like this, the very basis of this Court's Crawford decision is that's not for courts to decide. It is up to the defense counsel to -- if he wishes, to insist on live testimony that he can cross-examine and then-- Ruth Bader Ginsburg: Well, then why -- why isn't it an adequate substitute to say that, if the defendant wants this testimony, the defendant can call the analyst and cross-examine the analyst as an adverse witness? Jeffrey L. Fisher: --Well, three reasons, Justice Ginsburg: First, if that were correct, then I don't see anything that would stop the prosecution in every criminal case simply from putting a pile of affidavits on a judge's desk and saying it's up to the defense to call whatever witnesses he wants and cross-examine them. But even as a matter of text and structure of the Constitution, as a textual matter, the right to confrontation is a passive right in the defendant's hands. It requires the prosecution to arrange for the confrontation, and that's bolstered structurally by the Compulsory Process Clause. Remember, the Compulsory Process Clause gives the defendant the very right that you just explained, that the defendant can subpoena witnesses into court and ask them questions. And surely the Confrontation Clause adds something on top of that. And I think this Court's decision in Taylor against Illinois is the best explanation of the difference between the two clauses. This Court said that the Confrontation Clause arises simply by the nature of adversary proceedings, and it's a -- it's a rule that governs the way the prosecution must introduce its case. As I said at the opening here, it's a requirement that the prosecution put its live witnesses on the stand for the jury to observe them. The defense, of course, has the decision whether to cross-examine those witnesses, or if witnesses are not called by the prosecution that he would wish to be part of the case, he can subpoena them. But we would vigorously oppose any attempt to shift the burden on the defense to call witnesses like this. Ruth Bader Ginsburg: But you would say that what they call the notice-and-demand type statute, that that's all right? Jeffrey L. Fisher: There is a variety of notice-and-demand type statutes, Justice Ginsburg, and I think the law professors' brief lays it out the best of what we have before you. We agree with the Solicitor General that a plain notice-and-demand statute that requires the defense to do nothing more than assert his right in advance of trial to have the prosecution put a live witness on the stand would be constitutional, I think, under this Court's jurisprudence. Under the Compulsory Process Clause, under the jury right, there are plenty of constitutional rights that, with fair notice, a Defendant can be required to assert in advance of trial. Now, there are other types of statutes that other States call "notice and demand" that require something more of the defendant, whether it be that the defendant himself call the witness, whether it be the defendant himself make some kind of good faith or prima facie showing in order to have the prosecution call the witness. Those types of statutes, I think this Court, to the extent in this opinion it would mention notice-and-demand statutes, it would want to be careful to leave for another day, because, again, we would agree with the Solicitor General that those would raise more difficult constitutional questions. Anthony M. Kennedy: In your answer, you said, well, there would be this stack of affidavits and that's all the State would have to do. I think, Mr. Fisher, that was not quite responsive because the question here is whether or not there is an exception for business records. Nobody is talking about affidavits, witnesses, and so forth. We are talking about business records done in the ordinary course. It's true that it -- that the core principle is whether that confrontation is required, but the question is whether or not business records should be treated as something that are not testimony because they are done based on other protocols with other procedures where there is substantial insulation from the facts of the particular case because it's a routine scientific exercise. So I think your answer, I would agree, is responsive based on your theory of the case, but as a matter of practice and as a matter of the issue that's before the Court, I don't think it addresses it. Jeffrey L. Fisher: Okay. Thank you. I -- I took Justice Ginsburg's question to be asking whether giving the defendant the right to subpoena the witness would be adequate under the Confrontation Clause if these documents were testimonial. Now, your question is whether they might not be testimonial at all viewed through the lens of whether they are a business record. So, as a historical matter, I think it's plain that no documents prepared in contemplation of litigation were ever considered to be business records. And this Court's decision in Palmer v. Hoffman in 1943 I think lays that out very, very clearly. So there is no historical argument that business records would fit -- would be exempted from the testimonial rule as a class. And, of course, this Court said in Crawford v. Washington that even if a State under a modern hearsay exception, whether it be a business-record rule or in the State of Massachusetts's case a special, brand-new hearsay rule -- just because that might be okay in the run-of-the-mill cases doesn't exempt it from the right to confrontation. Anthony M. Kennedy: Well, but the railroad case was an accident report. This is a scientific analysis. Jeffrey L. Fisher: Well, I think that is best characterized, with all due respect, as an argument for its reliability. And it may well be that judges and juries think that certain scientific processes yield more reliable results in terms of reports and testimony and assertions. But we think, again -- and this Court's decision in Crawford says quite strongly -- that a judge cannot decide just on the basis of reliability to exempt a given record or a class of records from the Confrontation Clause. And I think, Justice Kennedy, another analogy that makes it even more clear is police reports. Police reports, just like the lab report in this case, are -- are sworn documents created by public servants who are sworn to tell the truth, sworn to find evidence whether it exonerates, whether it incriminates, and to write up a report. And I don't think anyone has ever suggested that police reports describing a crime scene -- for example, no matter how objective the facts relayed, such as there is a blood stain on the carpet, there is -- the door was wide open when I got there -- those kinds of assertions would be exempted from the Confrontation Clause. It may well be that they are likely to be correct, that they are assertions of fact that can be verified, but we've never understood that to fall outside of the ambit of the Confrontation Clause. Anthony M. Kennedy: But if you had what we can call an independent lab, that certainly -- you certainly can distinguish that from a police report. It's a line-drawing question, I'll admit, but I think it's easily distinguished. Jeffrey L. Fisher: Well, I think if you had -- in contrast to this case, if you had a laboratory that was a private lab being used by the police, that would raise the question whether police agents who are private individuals but -- but asked by the police to create something like this, would generate testimonial evidence just as well. And I think the answer would be yes. In fact, in Davis this Court already addressed the situation, although it reserved in the footnote, but it assumed that the 911 operator in that case, who was a private individual working for a private company hired by the -- by the police-- Antonin Scalia: Mr. Fisher, how many States do things the way -- the way you would have them done? I mean, how many States don't have these -- these notice laws, but in fact bring in the analyst to -- to give the information? Jeffrey L. Fisher: --Well, let me give you a few categories, Justice Scalia. There are six States, it is our understanding, including big populous States like California, Illinois and Georgia, that have no special hearsay law whatsoever, that bring in witnesses if defendants demand it. There is another category of States-- Antonin Scalia: Well, they bring in witnesses if -- if defendants demand, but-- Jeffrey L. Fisher: --I'm sorry, I misspoke. I misspoke. That in the ordinary course need to bring in witnesses. Now, that was -- getting ahead to my next -- my next category, there are at least nine or ten other States that have the kind of bland notice-and-demand regime that I was discussing with Justice Ginsburg. And so that's another category. And then you have -- since Crawford there is another, I believe, five additional States where their State supreme courts have held that Crawford applies to lab reports like this. So at least for the past couple of years they have been doing it the way that we would urge. Anthony M. Kennedy: I wonder -- and correct me if I'm wrong -- if you -- if you didn't state your case strongly enough with reference to California. I thought California followed the rule that you advocate here. Jeffrey L. Fisher: That's what I meant to say if I didn't say it that way. Yes. Stephen G. Breyer: Is there anything else? I -- I think you're quite right that -- that, look, I can't find anything in the history that suggest lab reports would be admitted because they would be considered being prepared for trial. But business records are kept out. So we have here a source that's unlikely to be particularly biased, the University of Massachusetts labs. And we have the checks of the discipline, the scientific discipline. On the other hand, it's being prepared for this trial. So it seems to me some things go one way; some things go the other way. I don't know exactly what the predominant things are. That's what I'd like you to address as much as possible. And when I look at the definition of "business records hearsay exception" today, it seems to me that the "hearsay exception" does cover today some of the things under "business records" that would be prepared particularly for trial. You could have a company that goes and measures lines on the street, or tread marks, or a variety of things. And I guess they come in under the "business records exception". Do they? I mean, is that right? Jeffrey L. Fisher: They might, Justice Breyer, and I'd -- I'd be willing to assume for purposes of argument that they would. But to the extent that they would be offered by the prosecution in a criminal case, the fact that they were a business record would not answer the confrontation question as to whether-- Stephen G. Breyer: Well, of course, it wouldn't. Jeffrey L. Fisher: --Yes. Stephen G. Breyer: And that's why -- and maybe you have nothing else you want to say on this point. It's the same as Justice Kennedy raised. Jeffrey L. Fisher: I think I do, Justice-- Stephen G. Breyer: It seems like there are some things going one way, and some things going the other on the issue of whether to call it "testimonial". Jeffrey L. Fisher: --But I do want to -- with all respect, I did want to add something to what you said about the rigors of the lab or of science. It may well be that those add to the truth, the reliability of reports. Let me say two things about that. First of all, the Confrontation Clause doesn't exempt bishops and nuns, or -- or anyone who we know or who we would think just as well would obviously be telling the truth. It's, again, for the defendant to decide and not for the court to decide whether cross-examination would be useful. But let me add to that, Justice Breyer, that the Innocence Project brief in this case and plenty of other sources widely available I think very, very, very persuasively explain that lab reports are not quite as reliable as we might want to think they are, and not-- Stephen G. Breyer: There have been bad instances. You are absolutely right. Jeffrey L. Fisher: --Yes. Stephen G. Breyer: But what -- what I'm trying to work out in my mind is not necessarily what happened in the year 1084. I'd -- I'd be quite interested in your views on what's a workable rule. And when I look across the country on this, it seems most States have worked with a rule that has allowed the defendant to call the witness if he wants. There is not a particular unfairness to that. If he can get ahold of the witness, no problem. But they said: We are not going to make the State do this because it's a waste of time, for the most part. It just delays the trial, and there is really nothing at issue. Jeffrey L. Fisher: Well, to the extent that is the prominent practice, it's one that grew up under this Court's Roberts jurisprudence. Stephen G. Breyer: That's true. Jeffrey L. Fisher: I think-- Stephen G. Breyer: But if I assume -- I'm really uncertain as to whether it has covered "testimonial" or not. And also, I'm not enamored particularly of seeing on a close question what happened in ancient history. Jeffrey L. Fisher: --I understand. Stephen G. Breyer: All right. Now, is there anything else you want to add to me on those assumptions? Jeffrey L. Fisher: Yes, that -- that, again, it is -- it is not for the court; it's for the defendant to decide. We think the definition of "testimonial" generally speaking ought to be that when a document is prepared in contemplation of prosecution, or more specifically in this case to prove a fact that is an element of a criminal case, because that's what these reports say, then they should fall under the Confrontation Clause. And to the extent that these are in some realms and in some places reliable pieces of evidence, there is every reason to believe it's not going to cause any problem, because defendants aren't going to want to challenge them very often. If you look at the statistics in the law professors' brief, they say in States like California that -- first of all, we have a huge category of cases that go away in plea bargains. And then even within the category of cases that go to trial, it's 10 percent of the time or less-- John G. Roberts, Jr.: Well, a good defense lawyer would love to have the guy there. The first thing you say is: Do you remember testing Mr. Diaz's sample? The guy is going to say no. Just as was pointed out, I, you know, test thousands of samples. Well, how long have you been working with the lab? You know, just what -- what was your scientific background? When did you -- how does this test work? You put three drops of the acid in there. It turns color, whatever it does. How do you know that? What is the chemical? I mean, you spend three hours with the guy until the jury just doesn't think there is anything to the case at all. Jeffrey L. Fisher: --Well, the best I can do to answer that, Mr. Chief Justice, is to say that empirically apparently that just doesn't happen. And I think the reason why is explained in some of the defense manuals that we have cited in our brief, which say that if your theory of the case has nothing to do with whether the scientific report being introduced by the prosecution is correct or not, very often the defense isn't going to do itself any favors by -- by insisting that that person take the stand, recite his credentials, recite the testing, and recite the damning evidence. Samuel A. Alito, Jr.: What does that fact support -- why does that fact support your argument, that in all of those cases you're arguing for what's going to be an empty exercise? Jeffrey L. Fisher: No, I would very much resist that it will always be an empty exercise. Samuel A. Alito, Jr.: No. But in -- in the instance where the defendant doesn't think it would be worthwhile to subpoena the -- the recordkeeper, the person who performed the test, but simply wants to put the prosecution through the effort of getting the person there to testify, it's -- what is achieved? Jeffrey L. Fisher: Well, as I said, I think that through notice-and-demand regimes and stipulations, often that is not going to happen. But if it is achieved, what is achieved is the same thing that is achieved in any criminal trial where a defendant insists periodically that the prosecution be put to its proof. After all, we are talking about putting somebody away for many years in a typical-- Stephen G. Breyer: I absolutely see that point. So that -- all right, go back to the plea bargaining, which is your first thing, which makes me a little nervous for the reason that I see this bargaining system as a system where the prosecutor makes a charge, the prosecutor controls the sentence, then the defense bar would like to have an added weapon, and this added weapon is if you actually go to trial, I'm going to insist that you call these people. You don't even know where they are. I'm not going to accept the lab report. And then maybe the prosecutor will lower the requirement or maybe the prosecutor raised it in the first place because he thought you would say something like that. So I'm not -- is there anything you can say about how this works in the presence of plea bargaining? Do we know any -- do we have any information on that? Jeffrey L. Fisher: --I don't know of any empirical study where you might say what the price of this is. Of course, it happens already every day with other witnesses. You're going to have to bring in other witnesses, and this is one more witness. But again, even in a case where that's all that's going on, it's no different than all the other legal rights the defendant has. Anthony M. Kennedy: I'm not sure it's one more witness. Labs are backed up with DNA. You know, the Federal budget for the courts, for the Federal courts, is $6 billion. Well, $1 billion of that is spent under the Criminal Justice Act for experts and translators and counsels. This -- this is a very, very substantial burden if we tell every State in the country that every -- in every drug case you are -- the State must produce the expert. Jeffrey L. Fisher: Remember, Justice Kennedy, that -- that if you look at the States where this exists, that's not what happens and that's not what we are insisting on. All we are insisting is that the prosecution in a case where the defendant demands it, whether it be through a notice and demand regime or whether it be because the prosecution simply calls the defense on the phone two weeks before trial and says, I'd like to do this through documentary evidence -- and then these repeat players remember who -- who -- one thing I think it's worth keeping in mind in all this, is that in the criminal justice system, by and large, especially in drug cases like this, we are talking about repeat players. John G. Roberts, Jr.: You're talking about the defendants or the lawyers? Jeffrey L. Fisher: I'm talking about the lawyers ---- [Laughter] --by and large, Your Honor. They have every -- they have incentives not to, as you might say, yank the chain of the other side. Antonin Scalia: --Mr. Fisher, I am interested in the history since that's what the Court held in Crawford, that the content of the Confrontation Clause is not what we would like it to be, but what it historically was when it was enshrined in the Constitution. As a matter of history, was there a business records exception, not from the hearsay rule but from the Confrontation Clause? Jeffrey L. Fisher: Not that I'm aware of. The best -- the best source that I believe exists is the Wigmore treatise, which both sides have cited. It says there was a shop-book rule that allowed shop-book ledgers and entries at the common law. But there is no -- there's no suggestion that that was-- Antonin Scalia: Why isn't that a business records exception? I don't-- Jeffrey L. Fisher: --It is a business records exception, but it's not an exception to the right to confrontation because no one would have considered ordinary business records created without contemplation of litigation to be -- to be testimonial evidence. What we have here-- Antonin Scalia: --Oh, wait. You say it's -- that business records would often or usually not be testimonial? Jeffrey L. Fisher: --I think all of the business records that were admissible at the time of the founding would have been nontestimonial. Antonin Scalia: Would have been nontestimonial. So they'd come in on that basis, not because they were business records? Jeffrey L. Fisher: In a criminal case -- well, the typical regime -- and I'm going to assume that it exists at the time of founding, but you need some evidentiary rule to get a piece of evidence in in the first place, whether it be business records or whether it be just an ordinary rule of relevance. But, yes, they would have been admissible at the time of -- ordinary business record like a shop book would have been admissible at the time of the founding, but would have not raised a confrontation problem even in a criminal cause because it would have been nontestimonial. John Paul Stevens: Mr. Fisher, I just want to be about -- clear about one thing. We are talking about drug cases primarily. But the rule that we are fighting about is not limited to drugs. Doesn't it apply to laboratory reports on DNA, blood tests, all sorts of evidence? Isn't that correct? Jeffrey L. Fisher: That's right, Justice Stevens. And you can you look at the Massachusetts own decisions. The State courts in Massachusetts already extended their rule in their day to ballistics tests, for example, which are notoriously unreliable in terms of empirical studies that have been -- that have been conducted about them. And my understanding -- I think you're right -- is that nothing in the Commonwealth's rule distinguishes one kind of forensic report from another. The United States is offering a slightly different analysis that appears to ask, to some degree, the degree of interpretation involved in a given forensic laboratory report. I don't know how you would administer that rule, but I can say that to whatever extent interpretation would be required, this is clearly on the interpretive side of the ledger. And again, if I could point the Court to a source for that, the Scientific Evidence treatise by Giannelli and Imwinkelried that the both parties cite at section 23.030(c) lays out the mass spectrometry way of testing for drugs that the Commonwealth tells you was the test used in this case and describes in great detail the amount of expertise, care, skill and interpretive methods that need to be brought in that kind of a test. John G. Roberts, Jr.: How do we know that this was prepared in contemplation of litigation? I mean, let's suppose the lab occasionally does analyses for other -- research purposes. They get a sample, they want to know what it's -- they want to test it, however they do it. Are we just assuming that it's prepared in contemplation of litigation because it usually is, or -- you can imagine a situation where the analyst really has no idea, other than perhaps supposition, why he is being asked to test the sample. Jeffrey L. Fisher: The easiest answer in this case, Mr. Chief Justice, is it's required by Massachusetts law that -- that these tests be done in contemplation of prosecution. The law itself says that the police officer can give it to an analyst, and the analyst can certify a report if it's to be used for law enforcement purposes. So there is a statutory requirement. Now, you-- John G. Roberts, Jr.: Well, the question is it could be law enforcement purposes to test it for the police to use and educational programs that want the rookies to know what the cocaine looks like. Jeffrey L. Fisher: --Well, to the degree it's not answer ed in this case by statute, undoubtedly this Court as it works through this jurisprudence will need to ask a question of common sense, whether the actors involved -- as this Court did in Davis -- whether the actors involved would understand what they are doing is creating evidence for a criminal case? If there are no more questions-- John G. Roberts, Jr.: So -- I'm sorry. Go ahead. Jeffrey L. Fisher: --Okay. I'll reserve my time. John G. Roberts, Jr.: Thank you. Ruth Bader Ginsburg: May I -- may I just ask, you would extend this to a -- a breath test, a blood test, fingerprints, urinalysis? All of those would be covered by your position? Jeffrey L. Fisher: To the extent that the prosecution wanted to introduce a report certifying a reporting result of a test, yes, it would be covered by ours. Ruth Bader Ginsburg: And you answered the question that a supervisor wouldn't be an adequate substitute for the analyst. But suppose the lab says: We are very busy in this place; could we schedule a deposition; we'll present the analyst at a time mutually agreeable to both sides, rather than have the analyst on the hook to show up on a trial date? Jeffrey L. Fisher: That would work to preserve the evidence in case the analyst became unavailable at the time of trial. And then under this Court's jurisprudence that deposition would be admissible. Ruth Bader Ginsburg: But only if the analyst wasn't there on the day of trial? Jeffrey L. Fisher: Then you -- then I don't think it would substitute for live testimony. But let me say one other way that this problem can be addressed by States is that they could have a supervisor take the stand and rely on raw data -- on raw data and give his or her explanation of raw data. It's just that the person cannot take the stand and relay somebody else's conclusion to the jury. And if there are no more questions, I'll reserve. John G. Roberts, Jr.: Thank you, Mr. Fisher. We'll give you your full rebuttal time. General Coakley. Martha Coakley: Mr. Chief Justice, and may it please the Court: The drug analysis certificates at issue in this case are not testimonial statements that have been covered by the Confrontation Clause. That is, they are not the statement of a percipient witness who has observed past behavior of the defendant. Indeed, what they are are official records of objective identified -- it's independently verifiable facts that are -- that were admissible at common law. David H. Souter: What is your answer to Mr. Fisher's argument that if that proposition of yours is -- is -- is, in fact, sound in response to this case, the State can put in its entire case by -- in a circumstantial evidence case, by way of affidavit and, in effect, satisfy the Confrontation Clause by saying, well, you can call the witness as part of the defense case and cross-examine there? Martha Coakley: Because clearly, the kinds of affidavits that are the subject of Confrontation Clause analysis could not be submitted by that. I think this is an exception to that. And so-- David H. Souter: Well, then that's what you have got to explain to me. Why is it an exception? Martha Coakley: --Because first of all, although the Court has not addressed it so far with Mr. Fisher, these are really not testimonial statements. None of the cases that have dealt with Confrontation Clause analysis -- before Ohio, through Ohio, through in fact Giles -- deal with the kind of statement that we are talking about here. It's really a report of a scientist test. David H. Souter: Well, what about the -- the blue car going down the street statement? In a circumstantial evidence case the witness comes in and says yes, I saw a blue car go down the street at 10 o'clock. Is that testimonial? Martha Coakley: It is, Your Honor. David H. Souter: And the distinction between that and the lab report saying the substance that was shown to me which I analyzed was cocaine, what's the -- what's the distinction? Martha Coakley: In the first instance you have a witness to an event in a particular case that can be tied to, perhaps, behavior of the defendant that's deemed to be criminal. It's -- it's classic hearsay and subject to confrontation, if it's, you know, is going to be used by the prosecution. In this instance, though, we have a protocol set up by a State statute that indeed does test substances other than those definitely headed for litigation. Antonin Scalia: I don't see the difference between the two. I mean, the one, he saw the blue car going down the street, which through other evidence can be connected to the defendant; and here the witness says this is cocaine, which through other evidence is going to be connected to the defendant. And in both cases that -- that connected fact is deemed essential by the prosecution for the conviction. Martha Coakley: Well, I think there are several differences, Your Honor, but one of which is that it is identifiable and it can be verified outside of what the scope of the Confrontation Clause is. In other words, the defendant has a chance to test it ahead of time, have his own independent witness. This doesn't change. Whether it is cocaine before, during or after the trial is testable. David H. Souter: Well, why-- Martha Coakley: And it's not true of a witness statement. David H. Souter: --Why does that make a difference? In other words, the -- Justice Scalia said a moment ago, you know, the -- the statement about the blue car is -- is tied in in the hypothetical case by another witness who said yes, at -- at 10:01 when I heard the gun go off there was a blue car there. In this case the cocaine is tied in by saying, yes, the cocaine which I delivered to X, about which he has testified, is cocaine that I took out of the pocket of the defendant. There is -- there is a temporal and physical path worked out in both cases. And it seems to me your attempt to distinguish them is to say well, the temporal path can be extended by one more step in the cocaine case because you can take the cocaine or take something from the cocaine sample and let the defense expert testify to it; which of course is true, but I don't see what that has got to do with the Confrontation Clause or the definition of testimonial evidence. Martha Coakley: I -- I think that that's significant, Your Honor, because it can be tested and verified and isn't dependent upon a cross examination at trial. David H. Souter: But aren't you really saying that the confrontation right is therefore not so important because you have a greater opportunity in the cocaine case of coming up with -- with rebutting evidence, if indeed rebutting evidence can be found. In other words, if -- if -- if the State's witness is wrong, you've got a better shot at proving him wrong than in the blue car case. But if that is your argument, I don't see what it's got to do with -- with the basic confrontation right. Jeffrey L. Fisher: Well, I think I go back, Your Honor, to looking at all the kinds of statements that this Court has looked at within the scope of the Confrontation Clause. This kind of public record, official record, laboratory report, has never been the subject of this kind of analysis and indeed it's not sufficient. David H. Souter: Well, have we ever had -- have we ever had a -- a kind of lab report, public record kind of case in -- in which the record was prepared expressly for trial? Martha Coakley: I think that if you look at Dutton, for instance, and the concurring opinion by Justice Harlan talking about laboratory reports deemed to be whatever the analysis was, a business record, that would have been-- David H. Souter: Yes, but Justice Harlan did not take the majority view. I mean you -- I don't know where you get authority for the proposition that the public record prepared for the purpose of litigation would have come in under the, in effect, the founding era -- or would have been outside the founding era definition of testimonial. Martha Coakley: --Except the public record, for instance of a coroner's result -- not the coroner's verdict that involves Marian-type depositions, but the results of a coroner's verdict that says somebody is dead and this is the cause and manner and means of death -- would have been admissible at the time with -- that kind of-- Antonin Scalia: For the indictment, not -- not as -- not as independent evidence in the prosecution. It would form the basis for the indictment, as I understand what the history is. It would not be introduced and -- and -- and shown to the jury as evidence that -- that indeed the cause of death was thus and so. Martha Coakley: But autopsy results -- my understanding, Your Honor, is that autopsy results -- again not a coroner's verdict, which -- in the reply brief we believe that counsel has conflated what would be a verdict between the fact of an official record, an autopsy report of the death, manner and means of death -- have been and still admissible. Anthony M. Kennedy: It seems to me -- and tell me if this is not the way you want to argue. It seems to me to make your case you have to say of course this is hearsay; and the question is whether it's testimonial. Martha Coakley: --Yes, Your Honor. Anthony M. Kennedy: And it's not testimonial because these are laboratory protocols, subject to ongoing, objective, repeated standards; that's different from testimony that it was a blue car, which is specific to the case. That's the kind of framework of the argument you have to make. Martha Coakley: That's-- Anthony M. Kennedy: And that as a result of that it is not testimonial because "testimonial" is a legal term that's subject to interpretation. I -- I guess that's the argument you're making and that you have to make. Martha Coakley: --Well, that's correct, Your Honor. Anthony M. Kennedy: As I see it. Martha Coakley: And I think that that is certainly consistent with the way in which this Court in looking at the series of cases from Crawford since, have looked at what a testimonial statement is. Admittedly, you haven't addressed this kind of statement, and I would argue because it doesn't fall within the principal evil that the Confrontation Clause is designed to prevent. Anthony M. Kennedy: Of course the problem was in -- I think it was Hammond was the companion case to David. Martha Coakley: Yes. Anthony M. Kennedy: The -- the 911 call was done for other -- really other purposes. It wasn't testimonial because it wasn't really directed to trial. This does seem more directed to trial, so then you have to tell us why even if it is, there are some independent guarantees of -- of reliability that means that we should say it's not testimonial as a legal matter. Martha Coakley: Well, I agree, Your Honor. I think that you cannot pull one of these qualities out and say that because it's prepared in anticipation of trial means that therefore it is testimonial. There have been several criteria that this Court has looked at, including -- there are other kinds of analogies to this that are akin to this kind of record. For instance, in an assault case, a gun which is the real evidence -- remember the cocaine is the real evidence here -- the Commonwealth would introduce a certificate saying this is a working gun, and that is in lieu of the analyst coming in. When we have to prove public way, when we have to prove school zone, when we have to prove in some instances-- Antonin Scalia: Ballistics as well? You would extend this to ballistic tests? Martha Coakley: --If-- Antonin Scalia: You -- you don't have to bring in the ballistic expert? You can just-- Martha Coakley: --Not to prove it's a working firearm, Your Honor. In order to make a comparison -- I would agree with counsel that once you get into the discretionary areas that you need to make comparisons and analysis, but this is not that case. Antonin Scalia: --I don't understand that difference. John G. Roberts, Jr.: Well, I'm looking at footnote 10 in your brief on page 30. And you concede that some interpretation of the machine-generated data ordinarily is required. Now why isn't that a suggestion that there is some leeway and subjective interpretation, and you might have different analysts coming out differently and so you need to get the fellow there and ask him well, how often do you -- how often do one of your fellow analysts disagree with your conclusion? Or this is subjective; I guess some people read it one way or the other one way; which way do you always read it? That kind of stuff. Martha Coakley: Well, interestingly, Your Honor, that argument wasn't raised in this case below and really hasn't been raised in this case before the Court. In fact this is one of the straightforward objective tests that says you put this material into the machine, and the Solicitor General also deals with this. The 100 percent accuracy by and large from that result says this is cocaine; this is heroin, this is-- John G. Roberts, Jr.: Well, I didn't -- I didn't go back and read the scientific treatise you cite, but you say some interpretation is required. So what type of interpretation? Martha Coakley: --The interpretation that because of the way that the machine works, the chemicals are separated out. And so a chemist, if properly trained, can say by the separation of the chemicals these three, or four or whatever the elements are, equal cocaine. Anthony M. Kennedy: Well, do you have to have a machine? I mean, what about -- what about ballistics? "This bullet came from that gun. " Does that involve sufficient discretion, sufficient judgment that the expert has to be there, while the blood -- blood or drug testing doesn't? It seems to me that's where you have to draw the line. Martha Coakley: Well, I believe that that's-- Anthony M. Kennedy: And to say that that wasn't raised in the case, this is precisely the question we are going to have to decide if you're going to prevail. I don't think it helps to say it wasn't raised in the case. Martha Coakley: --Well, I-- Anthony M. Kennedy: We are raising it. Martha Coakley: --I agree, Your Honor. But that has to do with how satisfied the Court is whether here or in other jurisdictions that is a reliable result, and I hesitate to use the word "reliable". I don't mean it in the Ohio v. Roberts sense. We are talking about the scientific test that is or is not reliable, and therefore does it require some other test, whether Confrontation Clause or not? Stephen G. Breyer: How can we administer something like that? His point I think is, look, you can't make any distinction either of something that is evidence was prepared with an eye towards trial or it wasn't. And if it was prepared with an eye towards trial, well, then call the person and have him testify. That's it. And if that encompasses every test under the sun, so be it, because there is no way to draw a reasonable line. You start talking about reliability and their amicus brief is filled with horror stories of how police labs or other labs have really been way off base and moreover really wrong. And you say, oh, distinguish between a police lab and University of Massachusetts? Try going down that road of which one is reliable, which one isn't reliable. How do we know? Martha Coakley: Well, Your Honor-- Stephen G. Breyer: That's his point. No workable way to do it. There can be horrors on both -- in both areas, and so follow what the history was where there was no history on this being admissible. Martha Coakley: --Your Honor, I disagree because the issues around many of those wrongful convictions related to suggestive identification procedures, other kinds of issues. I'm not aware of any wrongful convictions that came about because-- Stephen G. Breyer: Aren't there some things I read in the paper all the time, about these laboratories in various places, and they lost the results, they got it all wrong? That just doesn't happen? Martha Coakley: --I'm not saying that, Your Honor, but I'm saying there are certain evils that the Confrontation Clause is designed to prevent. Either abuse at the laboratory stage or misconduct by prosecutors prior to trial or analysts is not one that the Confrontation Clause is either designed to or is specifically very good at getting at. Antonin Scalia: Why not? I know I prefer one thing, the custody. It's very important to know whether indeed this was the particular substance that was taken from the defendant. And to establish that, you have to establish a line of custody. And you can't do that without getting in the person who did the test. Martha Coakley: Well, Your Honor, I agree the chain of custody is crucial and it relates to the careful procedure that a police officer used, who by the way is the confrontation witness that you worry about because the behavior is the buying, selling, possession of drugs. The element of whether it is cocaine or not really becomes almost secondary to the case. The issue is was the behavior criminal? So the officer who seized the drugs is available for confrontation. The drug is then clearly marked so the Commonwealth has to create that chain of custody for the court, and indeed if the defendant, who is in the best position to think that perhaps this is involving something other than cocaine or heroin, has all the opportunities that he needs to make sure that he gets a fair trial. Antonin Scalia: He says -- the policeman says, "And I gave it to the University of Massachusetts lab. " Martha Coakley: And they marked it in a particular way that identified-- Antonin Scalia: "And I watched when they marked it in a particular way. " Martha Coakley: --And the-- Antonin Scalia: How do I know that that thing is the one that got to the desk of the analyst who wrote this report? Martha Coakley: --I think that whether you brought the analyst in or not, you would have the same establishment of the chain of custody and, indeed, that piece of evidence as to whether it's the same drug relates to the officer in this case testified the packaging. He could identify it. It comes back-- Antonin Scalia: So you say you can require witnesses to show that, right up to the analyst who did the testing, you can require witnesses to testify? All the way up to there but not the analyst himself? Martha Coakley: --I think, Your Honor, that the issue between chain of custody and whether the Confrontation Clause is implicated are different issues-- David H. Souter: No, but you say that, it seems to me, because you are -- and I think consistently -- making a distinction between credibility issues and reliability issues. And I think you are implicitly saying the Confrontation Clause is there to test credibility but not reliability. Martha Coakley: --I think-- David H. Souter: The machine is reliable; therefore, it's outside of confrontation. And I don't understand the validity of this distinction that is implicit in your answers. Martha Coakley: --I think perhaps if the Court looks at accuracy rather than reliability and gets outside the realm of the kinds of statements-- David H. Souter: Well, accuracy-- Martha Coakley: --that we looked at. David H. Souter: --is an aspect of it. Martha Coakley: But accuracy goes to what this Court has always allowed in referring to, for instance, a business records exception or a public records exception. The reason they are admissible is precisely because we believe them to be accurate, and more importantly in this case-- Antonin Scalia: No. They are admissible in criminal cases as far as the Confrontation Clause is concerned because they are not testimonial. Martha Coakley: --And they are related, however, Your Honor, because the roots of whether it's hearsay or not and the Confrontation Clause arguments come from the same concern that somebody get a fair trial, that he or she has the right to confront the witness-- Antonin Scalia: We are back to Roberts then. Anthony M. Kennedy: I do wish you would comment on the argument that the State of California -- a huge state with many, many drug prosecutions -- seems to get along all right under the rule that the Petitioner proposes. Martha Coakley: --I did join the amicus brief, Your Honor. I believe and -- though I think it's too early to tell because I, certainly from my own experience, know that the number of cases that go to trial is not an indication of what the work is that is involved, and I know that in Massachusetts it would-- Anthony M. Kennedy: If the State of California and other populous States have for, I take it, some number of years been able to function quite effectively under the rule that the Petitioner proposes, it seems to me that's something that you have to address. Martha Coakley: --And I address that, Your Honor, by saying that for Massachusetts it would be an undue burden with very little benefit to the defendant. Anthony M. Kennedy: Why would it be undue for California and not for -- are you accepting the fact that in California it's a workable rule and it's caused no problems? Martha Coakley: I -- I can't disagree with that, Your Honor. I don't have enough information about the way California works or doesn't work. I know that as a practical matter-- John Paul Stevens: Well, it seems to me it's a very important point. Martha Coakley: --Well, as a practical matter in Massachusetts, it would mean that district court misdemeanor drug prosecutions would essentially grind to a halt, and the value to the defendant -- and this Court has looked at in Inadi and in other situations where there does not seem to be the real issue involved with Confrontation Clause. Ruth Bader Ginsburg: Then you're predicting that grind to a halt, but there are going to be a large number that wash out because they are plea bargained. So they won't get into the picture at all. There will probably be a goodly number in which defense counsel will stipulate that the drug quantity -- the drug type was such and such and quantity such and such. So you don't know in how many cases the defendant would take advantage of this confrontation right? Martha Coakley: No, and they often will not stipulate, Your Honor, until the day of trial when they realize that the chemist is there. That's from my own experience and that's a commonsensical rule. The question is-- Antonin Scalia: Don't these people have to appear before the same judge again and again? The point made these are repeat attorneys, and I don't think you make friends and influence people among judges by insisting upon testimony in criminal cases where it is obviously not needed. Martha Coakley: --Well, two points, Your Honor: In Massachusetts, we do have a circuit court and a superior court so judges move around. And the second thing is that -- my experience is that defendants, whether appointed or otherwise, are extremely vigorous in protecting their rights, and if I were defense counsel and I had a strategic advantage, I would insist on it. David H. Souter: Do you see any reason-- John G. Roberts, Jr.: I think California did not join the amicus brief. Martha Coakley: Then I misspoke. David H. Souter: --Do you see any reason why a notice-and-demand statute wouldn't satisfy your concern? Martha Coakley: Well, the -- the Petitioner agreed that-- David H. Souter: A bland notice-and-demand statute-- Martha Coakley: --We would argue that Massachusetts' statute is the functional equivalent of a notice-and-demand statute and complies with whatever concerns the Court may have about the right to confrontation. John G. Roberts, Jr.: What if it's the central issue in the case? The defense says, "That stuff I was carrying was not cocaine. " "Either I was trying -- you know, I was going to stiff the person I was selling it to or whatever. " That's the sole defense. That's not cocaine. All you've got to do is submit an affidavit from the lab guy saying, "I tested it; it is? " Martha Coakley: Well, from the prosecution's point of view that would be a bad strategic decision. That's an instance where you would bring in the analyst because you want to-- Anthony M. Kennedy: That's a non-answer. We are asking what's the rule? Martha Coakley: --The rule-- Anthony M. Kennedy: Can you submit it on the affidavit, as the Chief Justice said under your theory of the case? Martha Coakley: --Yes. Anthony M. Kennedy: You'd try to have some different hypothesis? Martha Coakley: Yes, because the defendant has plenty of opportunity to both have an independent exam, to subpoena the witness in himself, to make sure that if that is a true issue at trial -- in many instances -- most instances it's not, but he will have the opportunity to cross-examine. John G. Roberts, Jr.: Thank you, General. Ms. Schertler. Lisa H. Schertler: Mr. Chief Justice, and may it please the Court: The Confrontation Clause is not implicated when a human being merely authenticates for trial the instruments-generated result of a scientific test. That is because the direct output of an instrument is not testimonial and human assertions that merely establish the foundation for admitting nontestimonial evidence do not themselves trigger Confrontation Clause rights. Ruth Bader Ginsburg: Well, maybe if you were just -- if you were just putting in the machine, the raw information from the machine. But here what speaks is the certification by the analyst, so you don't have simply a machine-generated result; you have a human person who seems to be testifying: I certify that this is an accurate report. Lisa H. Schertler: If I could draw an analogy, Justice Ginsburg, to a historical example that we think illustrates our point, historically records custodians -- public records custodians have been permitted to certify through, when they have express authority at the common law, and -- and into present day that they did a records search, that they found a document within the public records of an agency, and that the document that they are attaching is a true copy of what they found. Those are statements by humans that really set forth the conditions for -- under which the evidence is being presented to the jury. Antonin Scalia: But-- Lisa H. Schertler: But those have always been accepted. Antonin Scalia: --It's not material prepared for trial. It's not material that was generated precisely in order to prosecute an individual. Lisa H. Schertler: The underlying material in the public records case is not testimonial because it was not prepared for trial. Antonin Scalia: Exactly. Lisa H. Schertler: In this case, Justice Scalia, we would submit that the underlying material is also not testimonial, albeit for a separate reason; and that is that it is an instrument-generated result and therefore not the statement of a witness. Antonin Scalia: Let's, let's assume that it's critical to a particular murder prosecution what time the shot was fired, okay? And you mean to tell me if -- if somebody says I heard the clock strike 12 at the time the shot was fired, that would not be testimony? Yes, the clock is a machine, right? Lisa H. Schertler: No. Antonin Scalia: He is just reciting what the clock said. Lisa H. Schertler: My analogy would be, Justice Scalia, if that clock had in itself a trigger mechanism that would detect when a gunshot was fired; and if that clock delivered, as you have in the cases of a drug analysis, a result, a reading that one could submit into court that says shot detected at 12 p.m., that that nontestimonial evidence could be submitted consistently with Confrontation Clause principles, but it would still require authentication. Some person may have to establish that this clock was set up, it was operating properly, it was calibrated the way it had to. Those all go to the same sorts of foundational facts that are akin to the public records certificate. Stephen G. Breyer: Well, you make me think the public certificate. Let's imagine birth and death records. There is a whole building full of them; they are on microfiche. Now, I am not sure how Massachusetts works, but I suppose if you want to introduce one you call up the -- the keeper and the keeper looks it up, produces it, and has a separate piece of paper or maybe written beneath it which says: "This is a true copy of the. " and you don't call in the keeper. Now that statement on a piece of paper, "this is a true copy of the birth certificate of John Smith. " that was prepared specifically for this trial. Lisa H. Schertler: Yes, Justice Breyer. Stephen G. Breyer: So I take it that has nothing -- I mean we'll find out, but if they win, every one of those cases, every document you have to bring in the person to make clear that the document that says that this is a copy of the document-- Lisa H. Schertler: Our-- Stephen G. Breyer: --Is that what -- is that the point? Lisa H. Schertler: --Well, that is -- that is our point. That it is too -- it is too simplified to say, as Petitioner does here, that if it's an affidavit or a certificate, and it's prepared for trial, that's the end of the analysis. Anthony M. Kennedy: But you have to have some boundaries, you have to have some framework, you have to have some explanation. You started talking about a machine. There is no machine in Justice Breyer's hypothetical, so it seems to me you have two different rationales floating around here and -- and neither are tethered to a specific rule. Lisa H. Schertler: Well, Justice Kennedy, this is why I would bring those two rules together. In the public records example, what you have is underlying evidence going into the jury that is nontestimonial. In that instance, it was because it was a public record not prepared for trial but has always been accepted from -- has always been viewed as nontestimonial. Your Honor is correct. In this case we don't have that, but what we do have is an underlying evidentiary item that is nontestimonial for a separate purpose, and that is that it is a machine-generated result. Anthony M. Kennedy: Well-- Stephen G. Breyer: You're going to work either. Because the person -- Sir Walter Raleigh's accusers wanted to testify about something that was nontestimonial: what happened on the day. So what we are looking for -- I mean, I agree with you that it is a very peculiar result that's going to have every public document in the United States suddenly have the keeper of that document having to come into court. On the other hand, I'm having a hard time figuring out what the distinction is between that and all these other things. Lisa H. Schertler: Well -- yes, Justice Breyer. Let me just add that in the public records custodian situation, there is always the possibility that the public records custodian who is signing that certificate was careless, is a liar; and those certificates yet have always been viewed as simply foundational vehicles for getting to the jury nontestimonial evidence. The defense is not-- John Paul Stevens: Ms. Schertler, please clarify one thing for me. Is the rule you're seeking one limited to tests performed by machines? Lisa H. Schertler: --The rule that I have articulated so far, yes. It is -- it would be-- John Paul Stevens: So would you agree the Confrontation Clause would apply if it were an independent expert's test -- test results and testimony. Lisa H. Schertler: --Justice Stevens, we also have an alternative argument-- John Paul Stevens: Just tell me yes or no. Lisa H. Schertler: --No. I would not. Because we have an alternative-- John Paul Stevens: Well, then we shouldn't talk about just machines. Lisa H. Schertler: --Well, we hope to rely on one of the same arguments that Massachusetts does, which is that there was a broad exception at common law for official records, those created by public officers doing their duty. Anthony M. Kennedy: --It seems to me you have to do that because there is all sorts of machines that have to be interpreted. There -- a chromatic spectrum analysis; the person has to say what he saw there, what she saw there. Lisa H. Schertler: I-- Anthony M. Kennedy: So just because the machine is involved it seems to me we cannot make a sensible rule based on that. Antonin Scalia: And there was not a broad exception at common law for public records created in anticipation of criminal litigation. Lisa H. Schertler: --Well, we have -- I mean, we have looked for that limitation in the authorities and we simply have not found it. Antonin Scalia: Have you found cases where the material was admitted as a public record despite the fact that it was a public record created for prosecution? Jeffrey L. Fisher: The difficulty with that, Justice Scalia, is I don't know of equivalent or comparable records that were being created at that time for purposes of litigation. Antonin Scalia: Well-- David H. Souter: These other records, no, you haven't found them. Lisa H. Schertler: No. I have -- I have not. Yet, if I could go back to Justice Kennedy's question, there is no record here about how this test in particular was done, but there -- there -- I can tell the Court that actually technology in the controlled substance area is to the point where an instrument does in fact provide an answer to the analyst. It provides a mass spectrum of the unknown and a-- John Paul Stevens: Yes but the rule, the issue is not limited to drug cases. Murder cases, all sorts of cases where there is scientific evidence. Lisa H. Schertler: --Well, the -- the narrower rule that we are discussing here would be limited to those situations in which the underlying evidence to be presented to the jury is nontestimonial because it is instrument-generated and did not require human analysis. John G. Roberts, Jr.: So is your -- what is your answer to the question I posed to the Attorney General? The only issue in the case is whether the powder is or is not cocaine. You think you get by if the law says you can admit this with an affidavit? Lisa H. Schertler: Yes, Mr. Chief Justice for the following reason. Just as in the case of the records custodians, a defendant may believe that that is not an authentic record; and nothing about the rule we propose would prevent the defense from challenging the authenticity or the circumstances, the correctness of the testing procedures that were used. John G. Roberts, Jr.: But you can't-- Lisa H. Schertler: It's just a question of whether -- whether the Confrontation Clause requires that that challenge occur in the Government's case on cross-examination, or as in these record custodian's cases, if the defense wants to challenge the authenticity of the underlying nontestimonial evidence, he must do so in his case. Anthony M. Kennedy: Could you comment on the California experience, please? Lisa H. Schertler: I would -- I would be happy to, Justice Kennedy. I -- I don't have information about California. I do have information about the District of Columbia. And I can tell the court that in the time period since the District of Columbia Court of Appeals held that these sorts of certificates of analysis were testimonial, that the court appearances that have been required of DEA chemists at the Mid-Atlantic laboratory have increased by 500 percent, from seven to 10 appearances per month to routinely over 50 per month, and that the corresponding time that it takes to analyze substance has increased. Thank you, Your Honor. John G. Roberts, Jr.: --Thank you counsel. Five minutes, Mr. Fisher. Jeffrey L. Fisher: Let me start, Your Honors: If there is any doubt remaining about the machine-generated theory that the Solicitor General was putting forward today, again I would refer the court back to the scientific evidence treatise. The raw data of a mass spectrometer looks -- looks something like a heart monitor. It's a printout of the squiggly line across the page that a person needs to look at and then analyze as to what it shows about the molecular composite of the substance that the machine was operating. We have no objection if prosecutors in criminal cases want to introduce machine generated data. They can do that. But what they can't do is introduce -- introduce affidavits certifying as to their -- you know, their interpretation of what a machine did or simply what a machine says, because there is no difference-- Antonin Scalia: So you say they could introduce the squiggly line and put on the stand an analyst who says what that squiggly line shows is that this was cocaine? Jeffrey L. Fisher: --They could do that, Justice Scalia. Stephen G. Breyer: What's your distinction with the recordkeeper? Jeffrey L. Fisher: Pardon me? Stephen G. Breyer: What's your distinction from your own theory of the recordkeeper? Does the recordkeeper all have to -- do they all have to testify to testify that this is indeed the record? Jeffrey L. Fisher: My understanding of the common law on that, as the solicitor general put it, is that that was a foundational requirement that was not necessarily considered evidence. Stephen G. Breyer: No, no, there's a hearsay -- there is a hearsay aspect. I'm not saying it's the only thing. There is a chain and so forth but, there is a hearsay aspect to that which you see, okay. The certificate says this is Joe Jones' birth certificate. That's what the -- now, that's that person outside of court who made that little piece of paper for purposes of this case. And moreover, the statement that it certifies to is directly relevant; indeed, the whole thing falls without it. So, are you going to say the same thing applies, your rule, and you have to call the recordkeeper in or not? And I think you're going to say not. And if you're going to say not, I want to know what the distinction is? Jeffrey L. Fisher: As a general matter, yes, our rule is consistent. Now, if you look at Wigmore, Wigmore-- Stephen G. Breyer: You are going to calling in -- you're going to-- Jeffrey L. Fisher: --I'm trying to answer. What Wigmore says is that something like a public recordkeeper's seal was not considered evidence, per se. It was a foundational requirement to put evidence in. And so, in this Court's words in the Dowdell case, it's something like a court reporter's transcript that goes up to a Court of Appeals and then is looked at. It's not considered evidence against a criminal defendant. Now, in stark contrast to this case where the document is expressly citing to a statute of Massachusetts law and saying this element of the criminal charge is satisfied. It is a very big difference. Anthony M. Kennedy: The graph, spectrograph or -- or -- or the -- the chart is introduced. Chain of custody is either stipulated or established. Can a person who did not make the test testify as to what that line -- what that graph means, and would that be sufficient to convict? Jeffrey L. Fisher: So long as chain of custody was satisfied, yes, Justice Kennedy, that someone could take the stand and do that. But remember, the reports in this case do not just report -- even if you accepted the solicitor's general's version that they are reporting what the machine said about the substance, they also have a paragraph before that, and this goes to Justice Scalia's question, say, these are -- these are the substances that were taken from the defendant in this case and given to me by this officer, and so, that is additional information that is being sworn to in the affidavit in this case that is also testimony. David H. Souter: Why don't you insist, even in that case, on the confrontation right to examine the person who actually conducted the test itself and generated the papers that the later expert testifies on in order to determine the admissibility of the -- of the -- the test results themselves? Jeffrey L. Fisher: I think the defendant may have that right. I understood Justice Kennedy's hypothetical to suggest that that chain of custody was stipulated to or otherwise agreed. David H. Souter: Okay. All I wanted to know was whether you were giving that away or not. Anthony M. Kennedy: No, but chain of custody is -- is quite different from the quantitative analysis and the professional opinion. My question is only chain of custody has been established, that's gone to the laboratory, the paper is produced, an outside witness testifies to what the paper means. I thought you said that that suffices. Jeffrey L. Fisher: I did. So I think I'm -- here's what I'm saying. David H. Souter: Let me ask you this. There are -- there are -- there are three possibility subjects: Chain of custody, conduct of test, significance or meaning of the squiggles. As I understand it, you have said if the chain of custody is established and if the squiggles are admitted in evidence, an expert who did not do the test can testify about the significance of the squiggles. But that leaves the question of the -- the evidence about the conduct of the test itself. And I understood you to say to me that you were not conceding that you did not have a -- a confrontation right to examine the person who did the test itself in order to determine admissibility. Jeffrey L. Fisher: I think what we are doing here is disagreeing slightly over where chain of custody begins and ends. To the extent chain of custody gets you to the point at which the substance is put into the machine, and that was stipulated to or otherwise not thought about, then, yes, the printout could be introduced into evidence and anyone could testify as to what that printout means. But to the extent that there was a gap between the drugs getting into the laboratory and being put into the machine by somebody that the defendant was not stipulating to, then whoever did that -- if the State were going to assert this is who did it and this is the drugs that we had -- that would be something that would be subject to cross-examination. David H. Souter: Okay. John G. Roberts, Jr.: Thank you, counsel. The case is submitted.

Warren E. Burger: We will hear arguments first this morning in Pattern Makers' League v. the National Labor Relations Board. Mr. Gold, you may proceed whenever you're ready. Laurence Stephen Gold: Chief Justice, and may it please the Court, the question in this case is whether the National Labor Relations Board is correct in its ruling that all Union rules placing restrictions on the time and circumstances under which a member may resign from the Union are invalidated by Section 8(b)(1)(A) of the National Labor Relations Act, as amended, is correct. The facts which raise that question are these: The Pattern Makers' Union adopted a provision in its constitution and bylaws which we set out at page 3 of our brief, the blue brief, which states: "No resignation or withdrawal from an Assocication or from the League shall be accepted during a strike or lockout or at a time when a strike or lockout appears imminent. " That provision was considered at the Union's convention in 1976 and then was sent to a referendum of the Union's members, and finally approved and became effective in 1976. Thereafter, a strike did ensue, involving the Rockford and Beloit local Unions of the Pattern Makers' Union. some eleven members of those local Unions put in resignations during the strike and went back to work thereafter. The Union, when the strike was finally settled, sought to impose Union discipline on these individuals. Charges were served, a trial was held, and the result was that the case went to the National Labor Relations Board on the allegation that the Union's action in seeking to discipline these individuals for violating the Union's underlying rule that engaging in strike-breaking activity is unlawful as a matter of Union law, violated Section 8(b)(1)(A). William H. Rehnquist: What panel did the Union impose? Laurence Stephen Gold: The Union imposed on the individuals for engaging in the strike-breaking activity. Sandra Day O'Connor: The fines amounted to all of their salaries earned when they went back to-- Laurence Stephen Gold: My memory, Justice O'Connor, is that the fines were in the amount earned while engaging in strike-breaking activity. And, of course, the question of the state of those fines is a matter for state law to determine under this Court's decisions in the Boeing & Machinist case. The validity of the fines, whether the fine's reasonable in amount, and so on are a matter of the state law of membership associations and the state law of contracts; and the extent to which the fines are enforceable, this Court has held, is to be determined in that forum. So all we have is in inchoate action by the Union, subject to only one means of enforcement; namely, a state court lawsuit to collect the amounts in question with the law on what is collectible, a matter of state law. Harry A. Blackmun: --Do you know whether the fines, in fact, have been paid? Laurence Stephen Gold: My understanding is they have not. William H. Rehnquist: Well, could the Union expel these members for failure to pay the fines so that they wouldn't have to resort to state court collection proceedings under state law? Laurence Stephen Gold: Yes. There are, as we understand the law developed by this Court from Allis Chalmers through Machininsts & Boeing, two lawful methods for enforcing a rule against strike-breaking against full Union members. Obviously, unless the person chooses to join the Union, to become a full Union member and be bound by the constitution, the Union can't take any disciplinary action. But if somebody, as in this case, and it's conceded, if someone joins a Union, becomes a full member, agrees to abide by the constitution and bylaws, then the Union has two choices: one, to take action which leads to expulsion; two, to take action which leads to a fine which can be attempted to be enforced through court action. Those are the only two options open to the Union. William H. Rehnquist: Now, has the Union permanently given up the opportunity to expel here by imposing a fine, or could it, if the fine proved uncollectible under its own constitution, say well, you failed to pay; we're going to expel you for that. Laurence Stephen Gold: I presume... I've never seen a case of that kind. I presume that a Union which first seeks a fine, to collect a fine, and is told by the courts that the fine is too high an amount or procedurally imposed in an imperfect way, would still have the option of expulsion. The only argument I can see the other way is that there is some choice of remedies or waiver by the Union. I don't think that would be the rule. Usually, Unions seek to go one way or the other initially. In many Unions, the complaint, internal complaint filed against the members, says what the penalty being sought will be. And some Union constitutions provide that if the only penalty that can be imposed is that which the member has been given fair notice of, so that he can make his determination whether to defend or not. Some people faced with expulsion wouldn't choose to defend, and it would be unfair to come around later and try to collect a fine from them. So different Union constitutions treat that issue in different ways. Warren E. Burger: I take it you will address the question of judicial deference to the Laurence view of the matter. Laurence Stephen Gold: Oh, absolutely, Chief Justice. The argument we make here is that the language and legislative history of the Taft-Hartley Act shows that Congress gave the most mature and complete consideration to the entire question of the extent to which the Labor Board should be empowered to regulate the Union/Member relationship, and that in particular, the House of Representatives proposed that it be an unfair labor practice for a Union to limit resignation in any way, shape, or form; where the Senate took a quite different view. And that conference report demonstrates in this instance, as in many others, that the House receded to the Senate. In other words, our position here is that Congress made a considered decision to deny the Labor Board the authority to dictate to Unions what their rules should be on who may join the Union, the conditions under which that person may join, position, the conditions under which he may be expelled, and the conditions under which he may otherwise leave the Union. William J. Brennan, Jr.: Mr. Gold, may I ask, is there anything in the record... how much knowledge, if any, of this League Law 13 any of the eleven employees involved had at the time they joined? Laurence Stephen Gold: The Board found or stated, "There is no contention that the members who tended their resignations were unaware of the restrictions on resignation imposed by the constitution. " William J. Brennan, Jr.: But there is nothing in the record that they were affirmatively informed of this provision when they joined? Laurence Stephen Gold: All that the record shows, Justice Brennan, is that in adopting this provision, the Union publicized the matter to the full membership, and the membership voted on whether or not this restriction should be inserted into the Union constitution. William J. Brennan, Jr.: Were these eleven members of the Union at the time of the adoption of this provision? Laurence Stephen Gold: Yes. That is my understanding. They were members at that time. And there was a hiatus from August 1976 until May 1977 between the time the provision was adopted and when the strike began. So by the clear terms or the negative implication of this restriction, each one of these members was free each one of those days to say I don't choose to be a member of this association any longer. This is a narrow and pointed restriction on the ability to resign, one which is attendant to a particular moment of the utmost importance to the organization, the strike period with its attendant pressures, and the period during which the employer is free to employ such coercive devices, perfectly lawful under the labor laws, as hiring permanent replacements, stating an intention to do so, and so on, all of the lawful uses of economic force which tend to pull the group apart. William J. Brennan, Jr.: Do you read the Board's holding as an employee Union member is simply not at liberty to waive the right under 8(b)(1)(A)? Laurence Stephen Gold: I read the Board's holding to be firm and absolute. William J. Brennan, Jr.: Under no circumstances may an employee waive it? Laurence Stephen Gold: No such rule as the Board-- William J. Brennan, Jr.: No, that wasn't my question. A holding that the Union member, if presented with this clause before he joins, said look what happens to you if you were to strike, and he says that's perfectly all right with me, that's all right, I will go along with that and I join. If that were a waiver, the Board says it's not to be-- Laurence Stephen Gold: --Yes. The Board, in terms of its decision and also in its brief, more particularly addresses the question of waiver. Obviously, Mr. Fried is better able to say what's in the Board's mind than I am. But the Board's decision is stated in absolute terms, and certainly against the background of this case where the provision is adopted on notice by a referendum vote, not even by elected representatives, it is hard to believe when you read the Board's language, which is that any restriction placed by a Union on its members' right... any restrictions placed by a Union on its members' right to resign are unlawful, admits of any exception. Byron R. White: --Of course, your position is that he had no right to waive. Laurence Stephen Gold: That's right. Byron R. White: That's your primary-- Laurence Stephen Gold: Yes. Our primary position is that Congress made a basic judgment. Byron R. White: --Limited these rights to the extent necessary to let the Union run its own affairs. Laurence Stephen Gold: That's correct. Byron R. White: And I take it that you rest on the legislative history. Laurence Stephen Gold: Yes. We rest on the-- Byron R. White: If there was nothing but the language, you probably would be in more trouble. Laurence Stephen Gold: --Yes. The language... it seems to us to proceed in the way the Court has instructed from the language to the explanation. The language is hardly helpful to the Government, but-- Byron R. White: Well, unless you are inclined to say that if the Board gave it a permissible reading, you'd think it. Laurence Stephen Gold: --That is what I was about to say, Justice White. I don't think it is very helpful, but I could not say-- Byron R. White: That the language wins your case. Laurence Stephen Gold: --Forces a decision in our favor. I do think the language cuts in our favor in two different respects: one, the section 7 right is a right to refrain from concerted activities, and it seems to us the choice of the word "refrain" is a surprising one to denote a right to join an organization which has a rule limiting resignation, and say I will join, but I am joining free and clear of that rule, and I won't respect it and I have a right that Congress gave me to join and then to leave at will any time I say. So I don't think the language pushes in the Government's direction. Byron R. White: You're very close to a waiver argument there. Laurence Stephen Gold: I think that the argument... and we've gone back and forth in our minds whether or not the argument is a waiver or an argument simply that this is a narrow right, a right not to join in the first place. Secondly, Section 8(b)(1)(A) was not in the Senate committee bill. It was added on the floor by Senators Taft and Ball, and in adding it they excepted an amendment by Senator Holland, adding the proviso to the amendment, the proviso that says that nothing in the body of the amendment which prohibits restraint and coercion is intended to interfere with the right of Unions to prescribe their own rules with respect to the acquisition or retention of membership. Warren E. Burger: Isn't this the kind of question that traditionally, courts have traditionally given the Labor Board a great deal of elbow room? Laurence Stephen Gold: I think that this is, Chief Justice, the kind of question where the Board has the least possible elbow room. I would concede that if all that I had to present to you was the bare language of the statute, unexplained by its evolution and by what its sponsor said, that this might be an area in which the Board's expertise weighs heavily. But that is simply not the situation here. Congress was considerate enough, good enough to debate these matters at great length. And what we see is (a), as I was saying in the Senate, expressed statement by the sponsors of Section 8(b)(1)(A) that they had no intent to intervene in internal Union affairs and to regulate the Union/Member relationship. And then when we move to the House, we find a very different situation. In the House, there was a Section 7(a) in the House bill, very much like Section 7 now, including these words "granting individual employees the right to refrain from concerted activities. " and a Section 7(b) which regulated, which gave Union members rights, vis a vis the labor organization. And in the House bill, there was a Section 8(B) which is very much like Section 8(b)(1)(A) now, dealing with this general question of restraint and coercion, basically physical coercion and interference with job rights. Byron R. White: Mr. Gold, was there any discussion before or after or during the conference report with respect to this specific problem? Laurence Stephen Gold: Yes. Byron R. White: Whether a Union could fine a member for strike-breaking? Laurence Stephen Gold: No, Justice White. I cannot say that the discussion was in that specificity, but the discussion was as follows. We reproduced the portions of the statement of the House managers who would certainly take the kindest view as to what-- Byron R. White: Which is the language of their statements do you most strongly relate? Laurence Stephen Gold: --Page 31 to 32. And I'd like to read it at the bottom of the page, simply to give the background to this statement. The House passed a bill that had a Section 7(b) which gave rights to individuals as Union members and a Section 8(c)(4) which specifically stated that Union members would have a right to resign at will, and that it was an unfair labor practice to limit that right. The bill went to conference. Section 7(b) and 8(c) were dropped. The House conferees said Section 8(c) of the House bill contained detailed provisions dealing with the relations of labor organizations with their members. One of the more important provisions of this section, that limiting the initiation fees which a labor organization may impose, where a permitted Union shop or maintenance of membership agreement is in effect, is included in the conference agreement. See Section 8(b)(5) and, has already been discussed, the other parts of this subsection are omitted from the conference agreement as unfair labor practices. The House managers had the political job of going back to the House and saying we salvaged as much as was possible. The House managers did not admit to failure in that regard lightly. There is just no doubt, we submit, that this language says we tried to regulate internal Union affairs; we succeeded in... we tried to regulate internal Union affairs in Section 7(b) of our bill and 8(c) of our bill; we saved Section 8(b)(5) on initiation fees; we lost on everything else. Senator Taft told the Senate that with regard to the scope of 8(b)(1) which he and Senator Ball had said was not intended to get into internal Union affairs, the conference bill was the same as the Senate bill. Now, the Board which admits that all of these materials are embodiments of Congress' will and have to be explained, says that while no one... no one... so stated at the time, the real agenda of the conference was by adding the words the 7, which had not been in the Senate bill, it was the intent to create a right to resign at will, quite aside from the fact that that doesn't face up to what happened to Section 7(b) and 8(c)(4). Byron R. White: But that's an argument that the failure to include the unfair labor practice, which was what... 8(c)? Laurence Stephen Gold: Yes, Your Honor. Byron R. White: Failure to include that, that supposedly limits the meaning of 7(a) is your argument? Laurence Stephen Gold: Yes. It limits it in this respect. Neither the House nor the Senate ever claimed that Section 7 or 7(a) of the House bill or Section 8(b)(1) regulated internal Union affairs or this particular aspect of internal Union affairs. And indeed, unless the Board is correct that Section 7(b) and 8(c)(4) of the House bill were completely redundant, the fair inference is that both the House and the Senate saw the issue of regulating Union activity that affects job rights or Union activity that involves restraint and coercion in the colloquial sense, harming somebody physically, engaging in mass picketing, and the rest, were different from the question of whether Congress ought to regulate the Union/Member relationship. And everything in the Senate, the explanations of the addition of the proviso to Section 8(b)(1)(A), the failure in the Senate bill to include any right to refrain, the statements of Senator Ball-- Byron R. White: And I suppose if you were a member of the House or the Senate voting on this conference report on the final... and you just sat and read it... you may not know, wouldn't have had the faintest notion of all this background that you have just recounted. You may have had some feeling about it, but you voted on the language of the bill. Laurence Stephen Gold: --That's true, but you voted after knowing that you voted for a very different House bill, and that your appointed representatives came back and in black and white said-- Byron R. White: Said we lost a lot of stuff. Laurence Stephen Gold: --We lost a lot of stuff. And one of the things they lost was this. Byron R. White: I know that's what you say, but nobody mentioned it. They lost that unfair labor practice. Laurence Stephen Gold: But that's the argument here. The argument here is precisely that while they lost that unfair labor practice, that the Labor Board has the power under 8(b)(1)(A) which was never claimed to give the Board the power, the authority to recreate that unfair labor practice, and to do so out of whole cloth. William H. Rehnquist: If you're right about that, Mr. Gold, doesn't that cast some doubt on the correctness of the Court's decision in the Textile Workers case? Laurence Stephen Gold: No. I don't believe that that's so at all. The Textile Workers case and all of the decisions through the Court's decision in Machinists & Boeing say that the Union/Member relationship is no greater than the contract created by the Union's constitution, and that union's have no right to take disciplinary action against non-members without engaging in a wrong. The question here is whether the Board has the power to truncate the Union member contract by substituting its view that there is something somewhere in some brooding omnipresence in the sky that says that every Union rule limiting the right to resign is an unfair labor practice. And our point is that nothing in Section 7(a), nothing in Section 7 as enacted, nothing in Section 8(b)(1), authorizes the Board to create that unfair labor practice; that the provision to 8(b)(1)(A) in terms denies the Board that authority, and that the legislative history shows that Section 7 was not intended to give the Board that authority, and that the fate of Sections 7(b) and 8(c)(4) demonstrates that this was not an issue of which Congress was unaware, but rather an issue where there were two different views. The House's view was the Union/Member relationship should be regulated, regulated in detail, and in particular regulated on when people should resign The view of the Senate was that Congress should not move to that point, should not say who could be a Union member, how long he would be a Union member if he chose to be a Union member, and when he would get out. But they were not going to tell the Unions what to do on those kinds of rules. And it was the Senate view that prevailed, and the Board here, as in Insurance Agents, where the Court said that the first issue is did Congress ask the Board to answer a particular question and said that it had not, is the same here. The Board just has not been given the authority to determine what Union resignation rules are good anymore than what the Union finds are reasonable. These matters Congress left where it found them until... for the state courts, for the law of contracts, for the law of membership associations, and eventually for the Landram-Griffin Act where this matter was not regulated either. Warren E. Burger: Mr. Fried. Charles Fried: Mr. Chief Justice, and may it please the Court, having decided that a Union commits an unfair labor practice by seeking court-enforceable fines against members who have resigned to go back to work during a strike, the Court considers today the Board ruling that a Union may not accomplish precisely the same result by recasting its rule so as to forbid strike resignations by those who would go back to work. Now, in considering that Board ruling, I respectfully remind the Court that the Court has frequently said that the interpretation of the Act is in the first instance for the Board, and that that interpretation by the Board of its Act is due great deference, so long as its interpretation is... and I quote Mr. Justice Stewart in the American Shipbuilding case... "not inconsistent with the fundamental structure of the Act. " Therefore, I think it is helpful to consider at the outset what the fundamental structure of the Act is. And surely there is nothing more fundamental to the structure of the Act than Section 7. Section 7 of the Wagner Act, an Act of 1935, was the centerpiece of that piece of legislation. It was the great charter of liberties of the Union movement. Employees shall have the right to self-organization and to engage in considered activities. In 1947, the Congress sought to enlarge that charter of liberties and to add... and I quote here from the preamble of the Taft-Hartley Act... "further rights"... and I quote here... "to protect the rights of individual employees in their relations with labor organizations. " So that when the first part of Section 7 was enacted, it protected the rights of employees, vis a vis employers; the second part, which added the words "and shall also have the right to refrain from any and all such activities. " created an enlargement and a symmetry in speaking of the individual's rights vis a vis labor organizations. Now, in the early days of Section 7 of the Wagner Act, employers regularly came to the Board and came to the Court to argue that they had made bargains with employees in which employees had bargained away those great rights, and they had made fair bargains, reasonable bargains, bargains for a limited time only, and that the employees had struck those bargains with their eyes open. And the Board and the Court regularly turned those arguments down, saying that Section 7 rights cannot be bargained away. The great case in this Court is National Licorice. What the Board does here in its understanding of the fundamental structure of the Act is that the right in the second part of Section 7 also cannot be bargained away, no matter how fair the Union provision is, no matter how limited in scope, and no matter that the member entered into this bargain, bargaining away his rights with his eyes open. So there is a symmetry here and the structure which the Board discerns seems to us to be a structure which makes sense, which is a coherent structure. Indeed, the only exception which Section 7 admits this right to refrain relates to Union security clauses, and this Court was most emphatic over a generation ago in the General Motors case, that Union may not, by Union security clauses, demand any more than financial core membership. That is to say, such an allegiance which does not submit an individual worker to Union discipline. Sandra Day O'Connor: Mr. Fried, has the Board's interpretation, present interpretation of these provisions been a consistent one throughout the years? Charles Fried: Over the last dozen years, Justice O'Connor, the Board in every major case has held that a Union attempt to impose court-enforceable fines on workers who would go back to work during a strike, when those workers have indicated their desire no longer to be affiliated with the Union, constitutes an unfair labor practice. So we don't have here some dramatic U-turn in the position of the Board, but a consistent picture which the Board has been elaborating since this issue first surfaced, and a picture which this Court has twice added its hand to the elaboration of. Now, the Petitioners rely very heavily on the provision of Section 8(b)(A). They rely on the proviso which reserves to the Union the right to make rules regarding the acquisition and retention of membership. The Board's reading of that proviso, we submit, is a perfectly natural reading, but also a reading which carries forward a consistent, a coherent picture of the structure of the Act. For what it says on one hand under Section 7, is the employee's relation to the Union is wholly voluntary. He may join if he wishes and he may leave when he wishes. And under the proviso as the Board reads it, what Congress is saying, it is voluntary on the other side of the relationship also. The Union may accept a member if it wishes and may terminate, that is to say, expel the member when it wishes. Thus, the Board's reading is a reasonable one and makes sense out of the structure of the Act. The Petitioners' reading of the proviso would have the word "retention" take on the meaning that the Union has some kind of a power to hold onto a member who no longer wishes to maintain his membership. Now, had the same really rather powerful argument which Petitioners and Unions urge and have urged consistently before this Court, arguments in terms of free riding, arguments in terms of solidarity, had those arguments been deployed to require an interpretation of the parallel word "acquisition" of membership, such that the Union may reach out and impose membership on an unwilling worker, this Court would reject that reading out of hand. What the Board does here is to read the word 7. Byron R. White: Well, Mr. Fried, I take it that your colleague on the other side seems to agree that if we were just looking at the words of the Act and structure, that maybe the Board has got a pretty good case. But he rests on the legislative history which he claims requires that these words be given a different meaning than you are urging. Charles Fried: Justice White, if the legislative history plainly indicated an intention of the Congress to allow this kind of strike resignation fining, we would not be here, we would not have this case for the third time before the Court. Of course, the legislative history in our view is really quite indeterminate on this point, which is what presents the problem. The closest, I think, in the legislative history that we can come to an elucidation of the meaning of the proviso are the words of Senator Holland himself who was the proponent of the proviso in its present terms to the Senate. Byron R. White: I wouldn't think you would have to find anything in the legislative history that would support your view. All you have to do is negative... the suggestion that the legislative history requires an interpretation contrary to yours. It would be helpful, I suppose, if you had some support. [Laughter] Charles Fried: The greatest help, Your Honor, which I find in the legislative history is Senator Holland's own explanation of the function of the proviso, for he says... and I quote from a passage on page 20 of the Petitioners' brief... that "the function of the proviso has to do with admission and expulsion of members. " And that, of course, is precisely how the Board reads it; is that the proviso deals with the admission and expulsion of members. That makes quite plain that what Senator Holland was seeking to accomplish was to reserve to the Union that same freedom of action which Section 7 reserved to the individual worker. The relationship is voluntary symmetrically on both sides. John Paul Stevens: Mr. Fried, may I inquire at this point, because it seems to me their stronger argument does not necessarily rely on the proviso, but rather relies on the fact that the House originated both the words the "right to refrain" and the provision that was deleted that said that this doesn't affect the right to resign. And if you have those in the same bill that originated in the House, does not that imply that the right to refrain without the other would not encompass the right to resign? Charles Fried: Justice Stevens, I think that the implication is wholly indeterminate in that respect. The sponsor of the House provisions, Congressman Hartley, described the Senate... the final Senate version as being broader in scope in general. That was his general word. Now, whether that is intended to indicate-- John Paul Stevens: Well, let's take it one step at a time. Would it not be true that within the House original submission, that at least your first reading of it should be that the right to refrain was not enough to accomplish what 8(c)(4), I guess it was, was intended to accomplish? Why would they have had both provisions if the right to refrain did the whole job? Just looking at the House itself for the moment. Charles Fried: --Legislation is frequently full of redundant terms, of terms that go over the same grounds in specific ways as well as in general ways. And, therefore, I think what one must ask is whether there is anything in the legislative history which, with sufficient specificity, indicates that by dropping that language the House members were attending to the point which my brother Gold insists they were attending to, or whether they viewed themselves really as acceding to more general and admittedly more debatable language. John Paul Stevens: I understand the force of your argument on the compromise on the conference... I'm still trying to think through the initial drafting of the language, at least creates an inference that at that point they thought something more than the right to refrain was probably needed. That's the first... it seems to me the first question we ought to ask ourselves. But I see what you say; well, maybe they later on decided it might have been redundant. It hardly would seem redundant in the very first bill. That's the thing that-- Charles Fried: Of course, it's a fact that is well known, that when there's a fight... and my brother Gold is quite right... there were a lot of fights concerned with this legislation... it is often the part of prudence to recede in favor of vaguer, more general language, and hope that you will prevail later. That is a very understandable tactic of compromise. John Paul Stevens: --It apparently worked, too. [Laughter] Charles Fried: We shall see, sir. William H. Rehnquist: You mean prevail with the Board later? With the Board at least. Charles Fried: Prevail with the Board, prevail in the courts, prevail with those who are considering the structure of the Act as a whole. Having created perhaps some kind of an ambiguity, having created a question, the question then becomes, given the whole texture, given what Justice White referred to as the web and structure of the Act, did not the proponents of the House language in fact have their way, though they lost the specific wording? That is the question which we put before you. William H. Rehnquist: Well, you're a little cynical. 8(c) simply... that proposed 8(c) that was eliminated was simply made a... just added a specific unfair labor practice with respect to... or did it? Charles Fried: It added a specific unfair labor practice and-- Byron R. White: To protect the rights under Section 7? Charles Fried: --Whether that was how the Congress was thinking, and whether the House had the matter that firmly in mind is something that I cannot give you assurance of. It is a striking fact that what the House was concerned about in that right to resign provision was specifically to protect the rights of workers. And this, I think, might help in answering Justice Stevens' question. What the House was concerned with was, as they were throughout, in protecting the rights of workers who resigned and whom the Union then seeks to terminate as employees under a Union security clause. And that matter surely was covered, and adequately covered by the more general language and by this Court's decision in the General Motors case. Warren E. Burger: Does this phenomenon of calculated ambiguity in the legislative process help explain why courts, including this Court, have said we leave that to the Agency to wrestle with it and work it out? Charles Fried: It does help, Mr. Chief Justice, but the Court limits the Board to asking whether its reading is not inconsistent with the fundamental structure of the Act, and that is why we come back again and again to that fundamental structure. It is our contention that the structure which the Petitioners urge is not a coherent structure, whereas the structure which the Board's decisions consistently, over a period of a dozen years has been moving towards, is one which is balanced and fair on both sides. Sandra Day O'Connor: Mr. Fried, in the Curtis Brothers case, this Court did something along the lines that Mr. Gold has urged today; to wit, infer from Congress's failure to enact more specific provisions, that we should look to that failure to enact specific in interpreting the end result. Do you think that that case poses some support for your opponent? Charles Fried: It is evidently some support. I believe it is not sufficient support in the overall context of what is being done. I recall Senator Taft's words as he accepted Senator Holland's proviso. He accepted the proviso without objection. He found it perfectly understandable for, as he said... and I quote... his only purpose was, to quote, "outlaw restraint and coercion as would prevent people from going to work if they wanted to go to work. " That is how Senator Taft understood the general structure of what he was doing, and he thought that Senator Holland's proviso fit into that structure perfectly comfortably. Now, therefore, I don't think we need to work the elaborate inferences from enactment and failure to enact which this Court was forced to resort to in the Curtis Brothers case, which I think are not necessary to a decision in favor of the Board's ruling in this case. I would suggest that the picture which the Petitioners give of the word "retention" in that proviso is a picture which is similar to the word "detention", that it means that a Union is empowered to hold on to a member who no longer wishes to be a member. And the Petitioners understandably insist upon the fact that after all here, so far as we know, the Union member was well aware of this provision either at the time he joined the Union or after the League Law 13 was passed and when he had a chance to get out. But these Section 7 rights, the Court has said again and again, cannot be bargained away. So the picture that is being offered by the Petitioners is a picture which the Petitioners, the Union in the Granite State case also offered to this Court, and in their brief they offered a picture of the worker as... and I quote here from their brief... "a volunteer for military service, under strict discipline for the duration. " Now, the picture which the Board offers of the Union/Member relationship was well stated by Mr. Justice Douglas in that same Granite State case, where he said it was a picture "normally reflected in our free institutions, the right of the individual to join or to resign from associations as he sees fit. " The question for the Court is whether the Board correctly understood the fundamental structure of the Act as enacting the military picture of the member as a volunteer for military service or Mr. Justice Douglas's picture. Now, the Petitioners go back to the law of voluntary associations, and properly so, because the great case in this Court on the whole issue of fining Union members is the Allis-Chalmers case. Since the statute says not a word about fining Union members, it's in that case that that right was established. But the Allis-Chalmers case emphasized that the power to impose court-enforceable fines was predicated on the fact that the fined person "enjoyed full Union membership", and that what was at stake was purely internal... internal regulation. Now, the state law on voluntary associations is said to clearly require, to clearly recognize the right of a voluntary association to restrict the right of members to resign. And in this regard, the Petitioners rely on the weighty authority of corpus juris secundum. I would engage in a battle of the giants here and bring in the weighty authority of Am. Jur. Second, which says that a member may lawfully resign at any time from an association or club, and a bylaw which restricts this right or makes the withdrawal subject to the organization's approval is invalid. Well, the fact of the matter is, I would give no great weight to either of these weighty authorities because the fact of the matter is that the common law of voluntary associations is underdeveloped and in conflict on the subject of whether an association may or may not restrict an individual in his attempt to resign. One thing, however, is quite clear; that those cases... and there are cases, common law cases, which recognize an association's right to restrict a member's resignation... all make it quite clear that those restrictions will be placed under the strictest court scrutiny to see whether they comport with state public policy of fairness. The question which this Court must consider is whether the issue, not of the reasonableness of a Union fine, which this Court clearly remits to state law, but the question of the outer perimeters of the Union/Member relationship should also be remitted to 50 varying state court policies, so that in one state such a restriction is unreasonable; in another state such a restriction does comport with public policy. Byron R. White: Might you have a little difficulty here? This local operates in both Illinois and Wisconsin, does it not? Charles Fried: Yes, that would be a very great difficulty, Mr. Justice Blackmun. It would seem that this matter... and here is a fundamental difference which the Board has with the Petitioners... this matter of the outer limits of a Union's reach over those who would not be members is no longer merely an internal matter, but becomes a matter for federal labor policy, a matter indeed entrusted in the first instance to the Board as it interprets... as it interprets the fundamental structure of the Act. Now, I would like, if I may, to speculate for a moment with the Court about the effects of this Board's ruling, the Board's ruling on the situation of Unions, because the suggestion is that this ruling is a disaster. It would seem, first of all, that we must recall that this ruling is no great innovation. After all, this Court has said in Granite State and in Booster Lodge that a Union may not offer the following bargain to a potential member: You may join with us, but only on condition that you agree, having resigned, not to go back to work during a strike. What has the Union done here? Through a merely technical reformulation, they offer a member the following bargain: You may join with us, but only on condition that you agree not to resign in order to go back to work during the strike. Byron R. White: Well, you could as well argue that you are relying on a technicality to distinguish the case from Allis-Chalmers. Charles Fried: It is a technicality, Justice-- Byron R. White: Resignation. Charles Fried: --It is a technicality, Justice White, on which this Court has laid great emphasis, particularly in the words which said that a Union member is, in general, free to leave the Union and escape the rule. I think this Court has viewed resignation-- Byron R. White: I was just repeating that it was... if you call it a technicality, it's a technicality... resignation. Charles Fried: --But it's a technicality which-- Byron R. White: I didn't say it was unimportant. [Laughter] Charles Fried: --The other matter which-- John Paul Stevens: Let me ask you one question on deference, if I may, Mr. Fried. Do you think the issue is one on which, if the Board had gone the other way, it would have been clearly wrong? Or could it have gone either way on this issue? Charles Fried: --Had the Board... had the Board said that a Union may restrict in this unlimited way the right of strike resignation, it is our contention that this would be at war with the fundamental structure of the Act. Yes, sir. Harry A. Blackmun: Would you say the same thing about the 30-day provision that two members speculated on? Charles Fried: Had the Board decided that a Union is entitled to insist on certain formalities in processing strike resignations, and maybe even including a brief delay during which the Union absorbs the fact that these men are, in fact, resigning, that might well be within the discretion of the Board. But a restriction as extensive as 30 days raises the very gravest doubts in our mind about it's consistent with those Section 7 rights and the notion that those rights may not be bargained away. Harry A. Blackmun: I suppose one could say that that kind of 30-day provision makes it a harder case for your opposition. Charles Fried: It would be a harder case for our opposition, but I don't believe, Mr. Justice Blackmun, that it would be a decision which we would care to defend. I would like to simply underline one matter in terms of the effect of this decision. For, though the Board adheres fast to the right of a member to leave the Union and escape the rule, the Court must remember that this is not a costless option. The Union continues to be the mandatory bargaining representative of that worker, and in choosing to resign, he loses his voice and he loses his voice most particularly in regard to the question of whether he may participate in a vote to take that unit out on strike, and he loses his voice in deciding whether to accept a new contract... a new contract to end the strike. So there is a penalty, there is a price that the man pays when he exists, when he exercises his right under free institutions to exit. Finally, I might say that over the years, employers have found no more effective tactic in arguing against Union representation than to urge that Union membership is like joining the Army. Now, it seems to me that the Board's ruling here would establish once and for all the notion that Union membership is a free relationship, voluntary on both sides, and this may very well open the way to a more solid form of solidarity, based indeed on the fact of an intrinsic loyalty. I thank the Court for it attention. Warren E. Burger: You have one minute remaining, Mr. Gold. Laurence Stephen Gold: I would like to warmly impress on the Court Judge Lernard Hand's injunction that the task of both agencies and courts is to recreate the gamut of values extant at the time from the legislative materials. My brother Fried did everything, other than talk about what Congress said and did. And the overall picture he drew, I would suggest, is it has nothing to do with the Act. What is self-organization? What is freedom of association? It is not, and was not in Congress's eyes, the right of every individual to join the organization if he wishes and to leave if he wishes. Of course, the very point of the proviso was to recognize that freedom of association is a group freedom, and the group creates its rules on who may join and who may not join. An individual who walks up to a Union and says I want to join, but I won't abide by these rules, can be rejected because Congress's view of the freedom of association was the contractual view, the view stated by this Court in Democratic Party of the United States, and not the view that Mr. Fried creates out of whole cloth, and that's the Board, without paying the least bit of attention to what Congress was willing to do and not willing to do, enacted. This bill was a compromise. The issue of whether there would be a perfect freedom to join and leave was joined. The determination was that there would be a different contractual relationship of the kind always recognized in common law. There is no case saying that this kind of restriction is no good, and indeed there would be a zero issue here if, under the normal law of membership associations, these kinds of restrictions had not always been recognized. Warren E. Burger: Your time has expired, Mr. Gold. Laurence Stephen Gold: Thank you, Chief Justice. Warren E. Burger: Thank you, gentlemen. The case is submitted. We will hear arguments next in Oregon v. the Klamath Indian Tribe.

William H. Rehnquist: Mr. Wallace, you may proceed whenever you're ready. Lawrence G. Wallace: Mr. Chief Justice, and may it please the Court. In this case, the Appellees are executors of estates that included among their property state or local public housing agency project notes. The question before the Court is whether testamentary transfer of those project notes is exempt from the federal estate tax. In urging that the testamentary transfer is not exempt, we have two grounds, either of which would independently support a judgment in our favor. Our principal contention is that the transfer of such notes never was exempted from the federal estate tax by the Federal Housing Act of 1937, the so-called Wagner Act. Our other contention is that even if they had been so exempted, Congress repealed that exemption in 1984 for taxpayers situated such as the Appellees, and that contrary to the District Court's holding, the application of that repealer provision was not unconstitutional. There are three reasons why we urge that the Court should address our principal contention first, that the transfer never was exempt from federal estate tax. The first is that if we are correct about this statutory issue, it avoids the necessity of addressing a constitutional contention or even the necessity of construing the effect of the 1984 Repealer Provision in light of the constitutional argument. The second reason why we believe that question should be addressed first is that there are presently pending, the Internal Revenue Service has done a survey on this, 101 cases which would not be disposed of were the decision to rest on grounds of the scope or constitutionality of the 1984 Repealer Provision because there were 101 cases pending, either administratively or in the courts, with a total value of project notes at issue of slightly more than $90 million, in which the returns were filed after the Haffner decision came down in 1984, and no tax was reported as owing on these returns. They are cases that would be controlled by whether or not Haffner was correctly decided, and-- Byron R. White: Was that in the 7th Circuit? Lawrence G. Wallace: --That was the 7th Circuit case. Byron R. White: And did the Government just lie still for that or-- Lawrence G. Wallace: We did not petition for writ of certiorari for Haffner. We had no conflict in the circuits at that time, and Congress had already enacted a retroactive repealer. Byron R. White: --I see. All right. Lawrence G. Wallace: So, we-- Byron R. White: Rested on your expectation that you would win a case like this? Lawrence G. Wallace: --Well, we didn't think that our future course here would be enhanced by tacking certiorari denied on to the 7th Circuit's decision. So, we did not petition there. Now, this is not in our judgment an issue that should have to be briefed and argued twice in this Court and, therefore, there is some merit in deciding the issue that would dispose of all or the cases. First, now it is true that we do not presently have a conflict in the circuits on that narrow question, but we do believe that the impetus of decisions has turned in our favor with this recent decision of the Tax Court by an eleven to five vote called Estate of Egger, which is referred to in our reply brief, and which we have furnished for the Court's convenience. Harry A. Blackmun: Mr. Wallace, the present case came up from the Tax Court, too, didn't it? Lawrence G. Wallace: The present case is from a District Court. Harry A. Blackmun: From the District Court. Lawrence G. Wallace: It's on appeal from the District Court for the Central District of California. Harry A. Blackmun: And Haffner came out of the Northern District of Illinois? Lawrence G. Wallace: That is correct. Harry A. Blackmun: Is this the first time the issue was reviewed by the Tax Court, by the full Tax Court? Lawrence G. Wallace: That is correct. Harry A. Blackmun: The first time? Lawrence G. Wallace: It is the first Tax Court decision on the issue. Harry A. Blackmun: And you have five dissents or something like that? Lawrence G. Wallace: There were five dissents, but eleven votes agreeing with our position, and I would add that the Tax Court's opinion seems to us to be the fullest and most persuasive treatment of the issue thus far by any court. William H. Rehnquist: And the Tax Court held that the bonds were not intended to be exempt under the 1937 Act? Lawrence G. Wallace: Under the 1937 Act, which was the only issue before the Tax Court since the Repealer Provision, would not have affected the Tax Court cases. Now, the third reason why we think that the Court should first consider that question is because we think it is the correct answer that Congress never did have to retroactively repeal an exemption that never existed, and so far as we can tell, that's what Congress itself thought when it enacted the Repealer Provision less than three months after the District Court decision in Haffner without even waiting to see whether the Court of Appeals would affirm or reverse the District Court. Now, on this issue, the District Court in our case simply relied on the District Court decision in Haffner. So, we'll turn to the analysis used by the District Court in Haffner. That decision surely is one of the most remarkable, is one of the most remarked-upon tax decisions of our time, in that it discovered a tax exemption that had lain dormant for almost forty-five years, a tax exemption of very elastic scope which had gone unnoticed by the Tax Bar, unclaimed by taxpayers, and unrecognized by either the Internal Revenue Service or any court for a period of almost forty-five years, and the Court did so while conceding in its opinion that the language used by Congress in the 1937 Act would not in itself be sufficient to confer this exemption. That language is set forth in the Appendix to our brief on pages 2A and 3A at the very end of our brief. It's Section 5(e), which provides in the second sentence that obligations issued by these local public housing authorities and then skipping to the end of the paragraph "shall be exempt from all taxation now or hereafter imposed by the United States. " As the Tax Court recently said in Estate of Egger, that language had been definitively interpreted by this Court as well as other courts by 1937, at the time the Wagner Housing Act was enacted, and it had been definitively interpreted to apply to taxes on the obligations or the income themselves, income or property taxes, and not to taxes on the transfer of the securities, namely estate or gift taxes. The interpretation of such statutory provisions, and we have collected the cases on pages 18 and 19 of our brief, in a lengthy footnote as well as in the text, the interpretation was closely tied in to the constitutional question of the validity of the estate and gift tax in light of the requirement of Article I, Section IX of the Constitution, that direct taxes must be apportioned among the states, and the reason why nothing comparable to the Sixteenth Amendment to the Constitution authorizing the income tax had to be adopted for purposes of the estate and gift tax is because the Court in the cases we cite had definitely held that the estate and gift taxes are not taxes on the obligations, but are taxes on the act of transfer. Harry A. Blackmun: Then, Mr. Wallace, why would there be specific exemption language in Section 20 of the earlier act? Lawrence G. Wallace: Well, that brings me, Mr. Justice, to the first ground relied upon, we think erroneously, by the Court in Haffner, the difference in the drafting between this language we just looked at in Section 5 and the language that appears on the next page, which is Section 20(b) of the 1937 Act, a provision which has not existed in the Act since 1949, and that is referring to obligations of the Federal Housing Authority, a federal agency, which was to furnish money to the state agencies. It says that though it shall be exempt, both as to principal and interest, from all taxation, except sur taxes, estate, inheritance and gift taxes, now or hereafter imposed by the United States or any state or local taxing authority. The principal difference, and we think the basis of the error in the Haffner case, is that looked upon in historical context, this was a much more limited exemption from income taxation. From 1913 until 1954, the income tax was really divided into two taxes; what was basically the flat rate at a rather low level income tax, and the graduated aspect of it, called the sur tax, and the taxable income was defined slightly differently. The determination was made with respect to the federal obligations that they, unlike the obligations of the local housing authorities, would be exempted from the flat tax which, in 1937, was a four percent tax, but they would not be exempted from the graduated aspect of the income tax. The sur tax. And, therefore, it was necessary in drafting this provision to put in an exception to accomplish the result Congress wanted to accomplish, to say except sur taxes. Once an exception was mentioned, then cautious draftsmanship would call for enumerating all the exceptions to ward off the possibility of an argument that expressio unius est exclusio alterius, as it's sometimes called. Antonin Scalia: But you just told us that this wasn't an exception, that the language simply didn't cover it. Lawrence G. Wallace: The language would have covered sur taxes. So, it was necessary to have an exception for sur taxes. This could be-- Antonin Scalia: That is a true exception, but you just told us that the exemption of any transfer taxes-- Lawrence G. Wallace: --That is correct. Antonin Scalia: --is not really an exemption. Lawrence G. Wallace: It might not have been necessary, but it was a draftsmanship devise used out of an abundance of caution and it was not something peculiar to this statute. We have on page 29 of our brief collected a number of references to other federal statutes. This was the standard mode of including exemption from taxation for federal obligations, whereas 5E reflected the standard mode that was used in formulating an-exemption from state obligations which was a broader exemption. We have in the Footnote on page 29 and in the related text, a number of other examples that use the same standard mode. The other point to be kept in mind is that these two provisions were not drafted simultaneously. Section 20(b) was carried over from a bill that was first drafted in 1935. It was carried over to another one in '36, and then finally to this one in '37, whereas Section 5E was drafted in 1937, almost surely by different people. So that it is as we term in our reply brief, fallacious to compare the two as if they were intentionally drafted by the same person to accomplish two different results. Instead, they are reach a standard form of accomplishing what was an established result at the time. I'd like to turn next to the remaining items in the legislative history that are relied upon either in the Haffner opinion or in our opponent's briefs in this Court. Keeping in mind, however, that relying on these matters, none of which is unequivocal as we shall see, is really contrary to the established principle stated over and over again by this Court, that tax exemptions do not rest upon implication. They have to be unequivocally stated in the text of the statute. So, the entire inquiry that was undertaken in Haffner once the Court admitted that the language used by Congress would not support the exemption was really contrary to this Court's decision. The first thing relied upon was a statement made on the Floor by Senator Walsh in the course of a lengthy statement interrupted by many colloquies, many of which consisted of corrections of things that Senator Walsh had been saying, and the particular paragraph from the Congressional Record, I'd like to read it in full, so the Court will get the flavor of it, was as follows: "Obligations, including interest thereon, issued by public housing agencies and income derived by such agencies on such projects are to be exempt from all taxation now or hereafter imposed by the United States. " "In other words, the bill gives the public housing agencies the right to issue tax-exempt bonds, which means they are free from income tax, sur tax, estate, gift and inheritance taxes. " It is that appositional clause which means, which is the basis on which the Appellees and the Court in Haffner relied on, Senator Walsh's statement. Our view is that this is simply a mis-description of what the meaning is for a bond to be exempt from all taxation. What it means to issue a tax-exempt bond that had been clearly established in the Court's cases, and it was stated in a way that suggested that this would be the ordinary tax-exempt bonds, such as municipal bonds, which have never been exempt from estate and gift taxes, and he was merely parathetically describing the attributes of a tax-exempt bond. This is not the way that the Congress unequivocally would adopt so pronounced a change from the ordinary way of doing business in conferring tax exemptions on municipal and other local bonds. Harry A. Blackmun: Mr. Wallace, which Senator Walsh was this? Massachusetts or Montana? Lawrence G. Wallace: This was Montana. The Massachusetts. I'm sorry. I'm confused by it. David Walsh of Massachusetts. I thought he was the other one. There is some confusion about what his precise role was with respect to the bill. I think ultimately that's immaterial. He was not either the sponsor, who was Senator Wagner, the sponsor or floor manager, nor was he the chairman of the committee during the time that the hearings and work were done on the bill. William H. Rehnquist: Maybe he's responsible for getting estate tax exemptions for the bond. Well, he was not a leader in the tax area in Congress anyway at the time. Lawrence G. Wallace: Yes, Mr. Justice. But the point is that Congress, surely the members of Congress, would have been alerted in a more telling way than this if a departure were intended from the ordinary principles governing the scope of tax exemptions. After all, the House of Representatives did not even have the benefit of Senator Walsh's mis-description in the course of his statement at all, and there was no indication that it came across to the members who were hearing it, anything more than the notion that the ordinary attributes of tax-exempt bonds were being conferred here. Some question is raised about why no one rose to correct this when other corrections had been made of other errors in Senator Walsh's statement. Well, this is quite understandable when you look at the context in the Congressional Record. As he finished there, he yielded to Senator Davis of Pennsylvania, who raised another point with respect to his statement. As I understand it, Senator Davis said the local authorities will be granted some $700 million and then there is a colloquy between Senator Walsh and Senator Davis about the size of the initial appropriations and what they expect it will be in the future, and when that finally ends, Senator Walsh says, "Mr. President, I think I am now prepared to submit the few amendments I have to offer. " So, they just went on to something else, and one could hardly attribute significance of the sort required for an unequivocal conferral of a tax exemption to the fact that no one happened to rise at an inopportune moment on the Floor of the Senate to correct this mis-description that occurred in the course of Senator Walsh's remarks. Now, the two other matters on which the Appellees and the Court relied are, if anything, even less substantial. One is the fact that an alternative bill, the Ickes Bill, had a more comprehensively-drafted exemption provision. That was a bill that differed in many important respects from the Wagner Bill. A written statement was submitted to the committee on behalf of Secretary Ickes, describing in some detail the differences between the two bills, no mention was made of any difference in tax consequences between the two bills. It was the Wagner Bill that was reported out of committee. There was no indication that anyone on the committee thought that a choice was being made with respect to tax consequences of these project notes, and certainly even less reason to think anyone on the Floor was aware of any difference in the draftsmanship between the two bills. And, finally, the reference is made to a speech that was made by a federal official after the enactment of the Wagner Housing Act, a speech by Mr. Warren Vinton, which expressed the view that these notes would be exempt from transfer taxes. That speech displayed considerable confusion on the subject. Mr. Vinton was not a lawyer. He had been helpful in aspects of the legislative history of the housing law. He was an employee of the Department of Agriculture, the Resettlement Administration there. He knew something about low-cost housing, but he was not definitively interpreting the statute on behalf of either the agency that would be issuing the bonds, which was the state or local agencies, or on behalf of the Internal Revenue Service, which has the responsibility to construe the tax laws. I would like to reserve the balance of my time, if I may. William H. Rehnquist: Thank you, Mr. Wallace. We'll hear now from you, Mr. Rotstein. Robert H. Rotstein: Mr. Chief Justice, and may it please the Court: This case comes down to whether the United States Government may refuse to return a citizen's money for no other reason than that the Government has acquired possession of that money and the District Court quite properly answered that question in the negative. I'll turn first to the question as to whether project notes are exempt from federal estate tax under the 1937 Housing Act. As the Government recognized, the starting point is the statutory language. Section 5(e) of the '37 Act, which exempted project notes unequivocally from all taxation now or hereafter imposed by the United States. Section 20(b) contained a much more limited exemption for federal housing obligations, not project notes. These obligations were exempt from all taxation except inheritance taxes relative to estate taxes. Sandra Day O'Connor: Mr. Rotstein, if all we had before us was the language of Section 5(e) and we didn't have the language Section 20, would you concede that the Government's position is correct in that we would not ordinarily give that broad language such a broad effect? Robert H. Rotstein: Your Honor, I would so concede if there was not also the legislative history. I believe, although it would be a tougher case, if you had the legislative history plus just the Section 5(e) exemption, I would still say that project notes are exempt. Fortunately, you have a simpler case here because you do have Section 20(b). Now, the Government argues that Section 5(e) doesn't exempt project notes by relying on a line of cases, beginning with Murdock v. Ward, which holds that exemptions for all taxation in certain circumstances relating to bonds don't include an exemption for the estate tax. These cases make a distinction between a direct tax on a bond and a transfer tax. The courts recognized recently that this is a formalistic distinction without economic consequences, and significantly none of the statutes considered in the Murdock line contain statutory language like 1937 Act, that has two sections; one with a blanket exemption and one with a more limited exemption. Similarly, none of the cases in the Murdock line consider statutes as legislative history. So, it clearly shows that Congress intended to bestow an estate tax exemption on the bonds. Now, we discussed the legislative history in our brief. I won't repeat it here. It is unequivocal. I just want to comment, make the comment that the Government really offers no affirmative history to the effect that Congress intended to subject project notes to the estate tax, and absent such affirmative evidence, there's no reason to disregard the plain meaning of the '37 Act and the legislative history affirmatively showing that project notes were exempt. And, so, the Government actually resorts to-- Sandra Day O'Connor: Well, the legislative history you rely on is the statement of Senator Walsh, I gather? Robert H. Rotstein: --Well, it's the statement of Senator Walsh plus the version, the rejected version, of Secretary Ickes, which contained a reference to estate tax and Section 5(e). There's also the Vinton statement, which I realize isn't legislative history with post-enactment, but we believe that that's also persuasive. Antonin Scalia: You are combining two of the Government's arguments. It seems to me if you want a plain language argument, you just look to the first provision, not the later one that contains the exceptions, and the plain language of that, it seems to me, does not cover these bonds. Robert H. Rotstein: Well,-- Antonin Scalia: You may call it a formalistic distinction, but the fact is when you tax the bonds, you're imposing an annual tax or some other tax on the bonds themselves. This estate tax does not apply until... unless and until there's a transfer. So, it's really a tax on the transfer. You may call that formalistic, but that's plain language. Robert H. Rotstein: --It is a tax on the transfer. We're not denying that, but the plain language argument is simply that when you look at the '37 Act and compare Section 5(e) and 20(b), it couldn't mean anything, 5(e) could not have any other meaning than a congressional intent to exempt project notes from the estate tax, read in light of 20(b) as the statutes are to be read. Antonin Scalia: In light of 20(b). Robert H. Rotstein: In light of 20(b). The Government falls back on two arguments that we believe are really only attempts to elicit a visceral antagonism to the District Court's interpretation of Section 5(e). They first argue that Section 5(e) couldn't have exempted project notes from the estate tax because to do so would have resulted in wholesale avoidance of estate tax. First, this is merely an impermissible attempt to have the Court rewrite the 1937 Act, but, second, it's inaccurate. In 1937, when Congress passed the 1937 Act, far from being concerned that all taxpayers are going to run out and buy project notes, they were concerned that there wouldn't be a market for them. So, from the perspective of the 75th Congress, there's no reason to believe that they were concerned and, in fact, there's reason to believe that the estate tax exemption was an incentive to make project notes saleable. The Government also argues that Section 5(e) exemption couldn't include an exemption from estate tax because the Tax Bar was taken by surprise. With due respect to the Tax Bar, I don't think it would be the first time that they were surprised by a statute. I'll quote Justice Frankfurter, I'll take the risk of doing it, "wisdom too often never comes, so one ought not to reject it merely because it comes too late. " Just because the Tax Bar became wise a little late doesn't mean we should reject the proper interpretation of Section 5(e) of the 1937 Act. I'll next turn briefly to the question of the proper interpretation of Section 641(b)(2) of the Deficit Reduction Act, which the Government says, irrespective of what Section 5(e) means under the 1937 Act, retroactively taxes the estates here. As we discuss in our brief, it's a proper construction of Section 641(b)(2) that it should not be construed retroactively. That will avoid the serious constitutional questions raised by retroactive interpretation. I just want to make two additional points to the ones we make in our brief. Under the Government's interpretation, Section 641(b)(2) by implication repeals an estate's right to sue for refund, and it does so by implication. This right has been established for decades and given the fact that there was very little, if no, legislative consideration of Section 641(b)(2), it's not plausible that Congress would have had such an intent. This leads to the next point and that is when, in enacting DEFRA in 1984, Congress wanted to repeal a right to refund, it said so explicitly. They did so in DEFRA Section 2662(g), which, in much clearer language, makes the statute there retroactive and in the legislative history of which Congress specifically said that they wanted to repeal a right for refund. So, juxtaposing 641(b)(2) with 2662(g), as a matter of statutory construction and, I believe, logic, would lead to the conclusion that in enacting Section 641(b)(2), Congress didn't intent to make the section retroactive, and that has the presence for a non-retroactive interpretation in the opinions of this Court in Schwab v. Doyle and Hessett v. Welch. Now, I want to indicate what will happen here if the Government's interpretation of Section 641(b)(2) as being retroactive prevails, and that is that taxpayers are going to be encouraged in doubtful cases to take aggressive positions vis-a-vis the taxability of an item. That is, in a doubtful case, because Section 641(b)(2) retroactively applied penalizes the reporting taxpayer, the conservative taxpayer, the taxpayers will be more likely not to report a doubtful item. In other words, taxpayers will be encouraged to play the audit lottery. This goes against mainstream tax thinking and congressional thinking that has been established for years and the concomitant costs to the Government, I think, are evident. There will be unreported taxable transactions-- William H. Rehnquist: In an estate tax report, Mr. Rotstein, if something is exempt from the estate tax, do you not even have to list it? Robert H. Rotstein: --That's my understanding. Project notes were bearer notes. So, it's very conceivable that that could occur. My understanding is that you do not have to list something if they're not taxable, and the taxpayer can play the audit lottery and the Government, if the interpretation of Section 641 is deemed to be retroactive, is going to lose the audit lottery. Harry A. Blackmun: Aren't you taking almost a criminal risk if you don't list something that might be taxable? You don't have to include it, but certainly a conservative approach would be to recite its presence and take a position that it's not includable. Robert H. Rotstein: That's true. That's a more conservative approach. Harry A. Blackmun: That may not only be conservative. It may be the wise counselling. Robert H. Rotstein: It could be wise. It's certainly not inevitable given the fact that even now taxpayers play the audit lottery by not listing something and hoping that they'll get away with it. Not to impede criminal intent, but it happens and this-- Harry A. Blackmun: This is the get-by doctrine, in other words? I've heard tax attorneys use that. Robert H. Rotstein: --The get-by doctrine? Harry A. Blackmun: Yes. Robert H. Rotstein: It's the get-by doctrine, and this kind of conduct will be encouraged. It's not logical that in the space of about six weeks in a bill that was introduced for the first time in conference and had no Senate debate, no House debate associated with it, Congress would want to effectuate such a bill. William H. Rehnquist: Why couldn't a taxpayer simply list or include it, but say it's not taxable, which would not allow him to take a forward position but still not risk evasion? Robert H. Rotstein: A taxpayer could do that. It's the prudent step, but that hasn't been a requirement for about sixty years, and taxpayers haven't necessarily proceeded that way. I can see that that would be a prudent step. I'll turn now to-- Harry A. Blackmun: Do you practice tax law exclusively? Robert H. Rotstein: --I do not. I'm a litigator. Harry A. Blackmun: But you do some of it anyway? Robert H. Rotstein: In this case, Justice Blackman. Harry A. Blackmun: Because surely if you were in tax law constantly, you would do just that, take the prudent reference of non-includability, but at least of indicating presence, so that there's no question of a fraud tack for an attempt to evade tax. Robert H. Rotstein: That's correct, Your Honor, and the more prudent executors and tax lawyers may do just that. The less prudent individuals may be encouraged not to report. I'd like to turn now-- John Paul Stevens: I really don't think they're encouraged. The statute applies only if it's shown... it's filed showing such transfer as subject to tax. Robert H. Rotstein: --That's correct. John Paul Stevens: Yeah. Okay. Robert H. Rotstein: The District Court found that retroactively-applied Section 641(b)(2) violates both the due process clause and the equal protection component of the Fifth Amendment. I want to emphasize that we didn't raise those constitutional claims lightly below and we don't so here, but retroactively applying Section 641(b)(2) would go far beyond the pale of what the Constitution permits and what this case what this Court has allowed in its cases construing retroactive tax statutes. There are two reasons why Section 641 (b)(2) if retroactively applied would violate the due process clause First, it constitutes a harsh and oppressive retroactive tax that has an arbitrary and capricious effect. I'll focus on the Stein estate for a moment. Dr. Stein bought project notes in 1980 and 1981. Harry A. Blackmun: How long before his death? Robert H. Rotstein: From about... he died in April. The last one was a couple of months before his death, I believe, maybe even a month before his death, six to eight months. Harry A. Blackmun: All of them purchased within a year then? Robert H. Rotstein: All purchased within a year. He did so in 1981 and in 1980 and '81. There had been no public ruling at all. For a period of forty years, the project notes were subject to the estate tax. Project notes were issued pursuant to 1977 and 1980 government offering circulars, advertisements if you will, in which the Government used the tax-free nature of project notes as a selling point. As a general matter. John Paul Stevens: Was it not true that at the time he made these purchases, there were a lot of tax lawyers during the past forty years or so, forty or fifty years, who had thought they were subject to estate tax? Robert H. Rotstein: The Government argues that. There's no... there's only inferential evidence. There's no evidence in the record of that or no authority. The only inferential evidence is that the tax law reacted in 1984 to the Haffner decision. There is some authority albeit not definitive, but it's certainly indicative that there were taxpayers out there before 1984 who were not reporting project notes as part of an estate. I refer to a 1955 Housing Authority memorandum that said the matter as to the taxability of project notes as part of an estate will have to be decided by the courts. I also refer to DEFRA Section 628, which, for the first time in 1984 around the time Haffner was decided, subjected project notes to information and reporting requirements. Before... certainly when Dr. Stein bought the notes, project notes were bearer bonds and in the legislative history of Section 628, Congress specifically referred to Haffner. The logical conclusion is that Congress was concerned that there were people out there who hadn't been reporting project notes. So, although the Government argues, and there was a lot of publicity after Haffner, we don't know whether or not the decedents were or were not reporting project notes. Harry A. Blackmun: Was Dr. Stein in good health when these notes were purchased? Robert H. Rotstein: He was in good health right up till the end. I think he was quite old but he was it good health. Harry A. Blackmun: One could almost say it was a purchase, not a transfer, a purchase in contemplation of death otherwise. Robert H. Rotstein: It could have been. I have nothing in the record, but it's possible. Dr. Stein certainly had no way of foreseeing the enactment of DEFRA Section 641(b)(2), which was introduced three years before his death. Three years is a very long period of retroactivity. Most of the cases upholding a retroactive period do so in the income tax situation and do so in the income tax area, and in addition, had Dr. Stein had an inkling that project notes would be retroactively taxed, he had beneficial alternatives. He could have invested in something else. Harry A. Blackmun: In the companion case, do you know how long before death the project notes were purchased? Robert H. Rotstein: I do not. William H. Rehnquist: In either of these cases, did the decedents claim exemption for the notes? Did they in their estate tax return? Robert H. Rotstein: That's correct, and neither did the executors claim exemptions. Both reported them subject to tax. Harry A. Blackmun: Do you know how the Internal Revenue Service discovered their existence? In the probate files or something? Robert H. Rotstein: Well, that's why we're here, Justice Blackmun. The executors reported them as taxable after... in light of a Revenue Ruling that came down in-- Harry A. Blackmun: In your case, that's correct. Robert H. Rotstein: --In our case. And, therefore, there was a claim for refund later filed. Quite simply, there is no case upholding a retroactive statute in which the facts are like this. This case is unprecedented in the scope of the decedent's legitimate expectations as to non-taxability-- William H. Rehnquist: But, Mr. Rotstein, certainly Congress made a stab at satisfying decedent's legitimate expectation. People who claim them as exempt were not subject to the '84 and people who didn't were. That seems to me quite a sensitive adjustment for expectations. Robert H. Rotstein: --Well, I don't think so, Mr. Chief Justice, because the executors of the estates reported project notes as taxable under compulsion of a Revenue Ruling that came down in 1981, indicating that they were taxable. That didn't exist when the decedents made their purchases. So, the decedents crafted their conduct on the existence of the tax exemption. When the executors got around to, in our case, when the executors got around to reporting, the executors were under compulsion of a Revenue Ruling, and-- William H. Rehnquist: What sort of compulsion is a Revenue Ruling? I mean, may not an executor do anything but follow a Revenue Ruling? Robert H. Rotstein: --An executor can take other action. However, executors are fiduciaries, and it's certainly prudent to pay a tax and knowing that or believing that a right to refund is preserved in order not to have to subject the estate to possible interest and payment penalties. William H. Rehnquist: What did the Haffner people do? Robert H. Rotstein: In Haffner, they apparently paid the tax but listed... disputed on the return the fact that project notes were taxable. Harry A. Blackmun: I take the Wells Fargo executors then knew of the existence of the Rev Rule? Robert H. Rotstein: That's correct. Harry A. Blackmun: That's a pretty low form of animal life in the structure of Treasury Rulings of one kind or another, about the lowest there is almost, and you feel they worked under compulsion. Robert H. Rotstein: The record indicates that they paid the tax and reported them as taxable by virtue of the Revenue Ruling, and at that point, that was the only public pronouncement of any kind regarding the taxability of project notes. Section 641(b)(2) retroactively applied also works to violate the due process clause by depriving the estates here of procedural due process. By precluding judicial review of the question whether project notes are exempt from taxation. The Government in its reply characterizes Section 641(b)(2) as merely a substantive change in the law, but in its opening brief, the Government, I think, more accurately describes Section 641(b)(2) as permitting certain taxpayers who did not report project notes as taxable but not the estates here "to continue to litigate the questions of taxability. " At the same time, the Government describes the effect of Section 641 as permitting the non-reporting taxpayer "to go ahead and have their day in court. " These are words of procedural due process and they're accurate. The executors have been deprived of their day in court by virtue of the Government's invocation of DEFRA Section on 641(b)(2). Effectively, the Government's interpretation of Section 641(b)(2) has caught the estates in a procedural trap. On day one, there were two equally available and well-established alternatives. One, the estates could have chosen not to pay the tax and to litigate the matter in Tax Court. Two, they could have, as they did, pay the tax, expecting that at least for the statutory period, they had the right to bring a suit in District Court or the Court of Claims for a refund. It's been established that these two alternatives are equally available and both there. Now, retroactive interpretation of Section 641 (b)(2) would take away that second alternative, the one that the estates here took, yet because the estates chose that second avenue, they can no longer invoke the jurisdiction of the Tax Court, yet there are individuals out there in the Tax Court still litigating the issue of the taxability of project notes. The due process clause prohibits just that type of procedural trap. Finally, the District Court found that Section 641(b)(2) retroactively applied violates the equal protection clause and that's accurate. Section 641 sets up a classification that distinguishes between executors who listed project notes as taxable on a return and those who did not. This classification bears no rationale relationship to any legitimate government purpose. It taxes the estates here that conservatively paid their taxes and reported project notes as taxable. It exonerates other similarly-situated executors whose decedents died the same days as the decedents here, whose executors filed tax returns on the same day, and yet who, for some reason, didn't report project notes. Perhaps taking an aggressive position, perhaps just forgetting to do so, acting negligently, and Section 641(b)(2) would tax the estates here, but would not tax the common evader who decedent died the same day as Dr. Stein, but who failed to file a return at all for the purpose of evading other taxes. The only real justification that the Government offers for the classification of Section 641(b)(2) is that it gives its expectations as to the decedents' belief as to taxability. It gives effect to those expectations. In other words, the Government says that reporting position on a return is equivalent to the taxpayer's expectations. That's flawed for two reasons, and it doesn't set forth the rationale classification. First, it incorrectly focuses on the executor's expectation and it's the decedent who was the individual charged with planning the estate and who relied on the tax laws. And, second, in our tax system, traditionally reporting hasn't been a gauge of a taxpayer's expectation. It's not a rationale gauge. It's been given in the tax system that a taxpayer may either choose to sue in the District Court and pay the tax, as we did, or to pay in Tax Court, and there are many reasons unrelated to a taxpayer's expectation as to taxability as to why the taxpayer would go ahead and pay the tax and sue in the District Court. One, just in general, is that a taxpayer may want to invoke the jurisdiction of the District Court or the Court of Claims rather than the Tax Court. Secondly, there may be a case farther along in the system, and rather than risk interest payments, penalty payments, the taxpayer may just file a return, pay the tax, and await the outcome of the litigation. Here, especially where you have an estate, as we do here, it may be prudent for an executor to pay the tax and file a claim for refund in order to ward off the possibility of interest and penalties in prudent exercise of the executor's fiduciary duty. That's especially true in a case like this where the Internal Revenue Service has taken a position that project notes were taxable, contrary to what the law is, and even after Haffner, so aggressive was the Internal Revenue Service's position that they indicated they were going to continue to litigate the matter, notwithstanding the Haffner opinion. On the other side of the coin, the decision not to report is not a rationale indicator of a taxpayer's expectation. The most obvious example is the taxpayer whom, to avoid taxes, fails to file a return at all. Presumably, the failure to file a return, the failure to report any items is because the taxpayer believes the items to be taxable, yet doesn't want to be subject to the tax. So, there's a failure to report. There is simply no rationale basis for the classifications set forth in 641(b)(2) if applied retroactively, and the equal protection problem stems, we believe, from the hasty enactment and the lack of consideration given to Section 641(b)(2). It was the fertile environment for passing a law that sets forth in a rationale classification. In the time I have left, I'll briefly summarize why the District Court's judgment should be affirmed. First, project notes are exempt from federal estate taxation under the United States Housing Act of 1937. This follows both from the statutory structure and the legislative history. Second, DEFRA Section 641(b)(2) based on the precedence of the Court need not be interpreted retroactively but can be interpreted prospectively only to avoid the constitutional questions yet affirmed. If interpreted retroactively, Section 641(b)(2) violates the due process clause, both because it's a harsh, oppressive and arbitrary retroactive tax, and because it deprives the estates here to the right of judicial review on the Haffner claim by virtue of the Government's invocation of Section 641(b)(2). And, finally, Section 641(b)(2) retroactively applied violates the equal protection component by setting forth an arbitrary and irrational classification between reporting taxpayers and non-reporting taxpayers. Therefore, treating the Appellees' estates less favorably than a common tax evader. Thank you. William H. Rehnquist: Thank you, Mr. Rotstein. Mr. Wallace, you have four minutes remaining. Lawrence G. Wallace: Thank you, Mr. Chief Justice. Mr. Rotstein has devoted most of his argument to the issues which we have urged that the Court need not reach. I will comment briefly with respect to those. In both cases, the claim for a refund was not filed until after the District Court's decision in Haffner came down. In the Wells Fargo case, this was two and a half years after the filing of the estate tax return, in the other case, more than one year after the filing of the return. Presumably, a fiduciary who filed the return believing that he has over-paid the taxes would act promptly so as to secure the funds and pass them along to the beneficiaries of the estate. It's quite apparent that they acted not in reliance upon their thoughts at the time of filing the returns, but in reliance upon the Haffner decision. Now, there's nothing wrong with that, but no matter how Congress acted, unless it was going to go into a case-by-case determination, it could not satisfy everybody's expectations with respect to the Haffner case. Even if the new statute had been completely prospective, not every taxpayer who, after Haffner came down, might have transferred his assets into project notes in reliance on Haffner, would have had the foresight to die before June 19th, 1984, and, therefore, those taxpayers' expectations would have been thwarted notwithstanding their reliance on the Haffner decision. And as this Court's leading modern case on the retroactivity of tax legislation, United States v. Darismont in 449 US, explains in detail most tax legislation has some retroactive effect. Here, Congress surely could have within the rule of Darismont made the entire repealer retroactive and treated all taxpayers the way they had all been acting for the previous forty years and the way the future ones would have to act, namely paying tax on the transfer. Instead, Congress chose to mitigate this slightly by selecting a very restricted class of persons that would be confined to those in the same situation as the Haffner taxpayers who had done something in reliance on this, but did make it retroactively applicable to the great bulk of taxpayers, most of whom would be just applying for an unexpected windfall if they happened to fall within the dates properly. I believe we're ready to submit the case, unless there are further questions. William H. Rehnquist: Mr. Wallace, if you'd stand there for just a minute, our records show that this is your hundredth appearance before this Court, and that your first argument here was in a case argued March 25th, 1968, for the Government. On behalf of the Court, we'd like to extend to you our thanks for your able advocacy during this period of time. The case is submitted. Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Earl Warren: Number 463, Thomas I. Fitzgerald, Public Administrator of the County of New York, etcetera, Petitioner, versus United States Lines Company. Mr. Friedman. Theodore H. Friedman: Mr. Chief Justice and may it please the Court. This proceeding comes from the Circuit Court of Appeals of the Second Circuit by certiorari. It involves the specific question of whether a seaman who has brought a maintenance and cure claim appended to a Jones Act negligence claim arising out of the same incident, the same employment, and the same injuries is or is not entitled to a trial by jury of the issues relating to the maintenance and cure claim. In the Court below, it was denied to him and we are be -- on behalf of a petition on the ground that he was entitled to that trial by jury and that it was improperly denied to him. As the Court may note from the caption, the plaintiff, Mr. Andres San Martin died during the pendency of the appeal and his administrator, the Public Administrator of the County of New York was substituted and that is why the caption reads the way it does. He was alive during the time of trial and testified. Now, very briefly, the facts, as they may relate to the legal question before the Court, was that the petitioner or the intestate alleged that on November 5, 1954, while an ordinary seaman aboard the ship of the respondent, he was directed over his own objection and that of other seamen to carry a 100-pound drum of cement up an inclined gangway from the pier to the ship. But this gangway was not secure, that he -- as he was going up the gangway with this 100-pound drum of cement on his shoulder, lost his balance, wrenched his back, and suffered severe injuries. At the end of the voyage in December, he left the ship with master certificate, and went to the United States Public Health Service Hospital in Staten Island, New York. He was treated there, became an in-patient, and remained an in-patient until March 1, 1955, a period of about -- approximately three months. He was discharged from that hospital marked “not fit for duty” with the diagnosis of a herniated disc and another notation that he had received maximum hospital benefits. He filed suit in June of 1955. The case came to trial in May of 1960 in the Southern District. At that time, when it finally became time, that I will go into later, for the maintenance and cure testimony to be presented, the defendant's physician, orthopedic specialist, claimed that Mr. San Martin could not receive any further curative care and that when he was discharged on March 1, 1955, his condition was such that he would not benefit in any way from any further medical care. The plaintiffs, the petitioner's physician, who happened to be the former-Chief of the Orthopedic Service of the very Marine Hospital from which this man had been discharged, testified to the contrary. This was all to the Court alone since the jury trial had been denied on these issues. At the -- Potter Stewart: The issue of being whether you'd reached the point of maximum cure, is that it? Theodore H. Friedman: Yes, Your Honor. And, the testimony of the petitioner's physician was that he should have received conservative treatment, received the brace, there is other medical treatment that this would not only have provided a cure in terms of relief from pain and suffering but would have removed him from the ranks of total disability which is where he remained throughout these five years and would have made him able to accept gainful employment of a non-arduous nature such as an elevator operator or an assembler of parts or things of that nature. Now -- Speaker: (Inaudible) Theodore H. Friedman: Yes, Your Honor. Speaker: (Inaudible) Theodore H. Friedman: Well, it's a little longer than the normal at that time. The Southern District is much less congested now. The waiting period -- my own experience, limited as it may be was -- is that, now, three years, it's the normal waiting period, approximately two years from the filing of note of issue but that can't be done until all free trial discovery is completed. It averages about a year, I would say three years. At that time, it was longer. Your Honors may be familiar that numerous just -- judges have been appointed recently and that's cut down the waiting period. Now, as is clear from the opinions on the record, the District Court judge decided this factual issue against the plaintiff and accepted in full the testimony of the defendant's physician that there was no curative treatment available to the man. And so, without going to the facts anymore, now reverting to legal question, I think the record establishes that the seeking by the petitioner of a trial by jury related to some very substantial monetary issues to him, the outstanding maintenance and cure for the five years that it intervened as well as, as is noted from his complaint, he sought damages for the failure to properly pay him the maintenance and cure when it was due and of course, this Court has held many times that maintenance and cure is due when it is due, that is the very day that he is ill, the very day that he would and should receive curative treatment and does not. And, again, this amount was substantial because the petitioner could have shown that he not only lost the $8 a day but the employment and the earnings that he would have had, had he been able to obtain gainful employment which he would've been able to obtain according to his physicians having received the medical treatment to which he was entitled and which the shipowner denied to him, although, without question, there had been a due demand by June of 1955 when the complaint was filed. That of course, is on the record. I think, if I may speak to the facts of life, we all know that the demand in fact had been made earlier, the seaman's condition was known to the shipowner, it happened aboard the ship, he received the master certificate and they, in fact, had paid him a very small amount, some $32 in maintenance and cure in the intervening period and then had cut him off. Potter Stewart: But that the duty -- just to verify the confusion in my mind, the duty of maintenance and cure is to pay cure up to the point of maximum cure where it -- up to the point when no more treatment would do any good. Isn't that right? Theodore H. Friedman: Correct, Your Honor. Potter Stewart: And, maintenance is what? Theodore H. Friedman: Well, the maintenance is during that period. The cure relates to the cost of the medical care. Potter Stewart: Right. Theodore H. Friedman: Frequently now, obtains free of charge from the United States Public Health Service but not always. The maintenance refers to $8 a day which is agreed upon throughout the industry as the board and lodging, the “keep” as sometimes called in old maritime cases. During the period that he's receiving the cure, the medical care, he gets upkeep of $8 a day for maintenance. Potter Stewart: I wonder where the $8 a day came from because that was not -- Theodore H. Friedman: It's now the adopted in agreement -- Potter Stewart: It's a matter of universal custom now? Theodore H. Friedman: Yes, Your Honor. And again, in my experience, even in those cases where the NMU, the National Maritime Union contract isn't in effect, it's almost stipulated by counsel rather than calling him “home economist” -- Potter Stewart: I see. Theodore H. Friedman: -- to testify what might be the reason of that. William J. Brennan, Jr.: Did he get them while he was hospitalized? Theodore H. Friedman: No, not while he's an in-patient because he's being maintained inside the hospital which -- if it's free, it's there and -- Potter Stewart: Could you say what the period involved as to maintenances here? Theodore H. Friedman: Well, the period that petitioner alleges would be from the time of March 1, 1955 when he no longer was an in-patient, right through to the time of trial. He never became an in-patient again. And then we reached the problems that this Court recently noted in the Salem case of whether any amount should ever be allowed for the time after trial. As I understand the rule, if it is very, very clear and certain as to what amount should be allowed for the period after trial, the Court may allow it. Otherwise, it should refrain from allowing it for any period after the trial. But certainly, the claim was in May 12, 1960 when this case came for trial, something over five years of maintenance, so it was a substantial claim in addition to the other elements involved, the loss of employment and earnings. Now, on the legal issue, the question framed on the writ of certiorari, I submit that there has been literally no question that it is desirable on all of the policy considerations that a joint trial be held. I note that -- in the briefs, we submit the writings of learned commentators and as I see it, there is not a learned commentator who has devoted time and energy and scholarship to this question but has not reached the conclusion that this is indeed the desirable result that when a Jones Act claim or when a seaman comes before a Court and relates that he has been injured, relates that negligence or unseaworthiness has caused his injury and presents all his medical testimony that the efficient affair, the proper way to proceed, if possible, would be to allow the same jury to determine what maintenance and cure payments he should receive. And so, I will not speak at this point to any extent as to the question for what -- this is the desired result. In fact, even below, the only voice of all the opinions and commentators that have spoken on the subject that has suggested that a joint jury trial should not be allowed, that it suggested that the question now before the Court should be answered in the negative is the opinion of Judge Friendly of the Circuit Court on behalf of only four of the nine members of the Second Circuit who heard this matter en banc. And even he concludes that this indeed would be desirable to have a joint jury trial. In other words, the question now before this Court should be answered in the affirmative, if at all possible. So, I now turn, if I may, to what -- Potter Stewart: Did it -- if this had been only a suit for maintenance and cure, you make no contention that it could have been tried in any other way except before a judge alone, do you? Theodore H. Friedman: I do, Your Honor, Mr. Justice Stewart, and the reason is this. In fact, there was diversity of citizenship. In fact, this man was a resident of the State of New York. He was a citizen, as the record shows, either of Spain where he was born or of New York where he resided. In fact, he had become a naturalized citizen in 1943. This appears in the depositions but not in the trial record, but on the trial record appears the fact that he was born in Spain and lived for a long time in New York. So, he's either -- from the trial record, a citizen of New York or Spain. The defendant on his pleadings, was a resi -- was a citizen of the State of New Jersey, was in any case a citizen not of the State of New York. It was a foreign corporation, not an alien but a foreign corporation. And therefore, diversity of citizenship existed. Potter Stewart: Well, even so, this isn't a common law action, is it? Theodore H. Friedman: This -- Potter Stewart: I'm assuming a law -- a suit only for maintenance and cure, nothing else joined with it. Theodore H. Friedman: I then reach this proposition, Your Honor, if I understand the point we're at. A maintenance and cure claim, if diversity of citizenship exists, I submit is entitled -- it is -- they affirmed it, entitled to a trial by jury in the federal court. Now, I submit the following that a maintenance and cure claim may enter the federal court on one of two grounds. It may approach through the exercise of the admiralty jurisdiction in Article 3 of the Constitution and 28 Title 1333, and it -- there appears as a maritime -- as an admiralty claim, historically, not entitled to a jury. But a plaintiff may appear as he so desires not that way but claiming it as a common law right which would be entitled to a jury in the state court. But is he entitled, and that brings us to the question, to bring a state claim? He is, if diversity of citizenship exists. And then he appears in Court under 1332 of Title 28 and under the exercise of diversity of citizenship, if he were entitled to a jury in the state court, he is clearly entitled to a jury in the federal court. Or, he -- Potter Stewart: I follow this all except to your assumption that he would be entitled to a jury in a state court. Theodore H. Friedman: Well, this -- Mr. Justice Stewart, is discussed in the opinion below. There are numerous cases cited there of this Court and it has been conclusively held that in the state courts, a trial by jury as a common law matter, is permitted for maintenance and cure claims and has been regularly allowed. I might call this attention -- the Court to its own opinions in Leon v. Galceran, in the Garrett v. Moore-McCormack case which is a more recent case, rather often quoted in this area. There was a trial by jury in the Pennsylvania Court. It so happen that the Pennsylvania Court applied a state rule as to the burden of proof on release and this Court took the question and pointed out that they must apply the Federal Maritime Rule. But recognizing without any disapproval or question whatsoever, that it was a properly submitted question, the maintenance and cure claim is a $1000 verdict for maintenance and cure in the Garrett case in the Pennsylvania Court. Potter Stewart: But it's -- are you -- the question I'm asking is not whether a court may submit it to a jury but whether a court must, upon request, submit it to a jury. Theodore H. Friedman: Well, that question of course, would lie to what has been the state procedure in the past. And I would submit that a study of this will show that, throughout the years, the state courts have allowed and grant the juries on these State -- on these maintenance and cure claims when brought as a simple claim for money in personam against the shipowner for money damages. It is in fact the -- almost the simplest type of common law in personam claim in which the man comes in and seeks money against the shipowner, over whom he has obtained in personam jurisdiction, which was -- what was obtained here. Arthur J. Goldberg: Mr. Friedman, am I right though, that this Court has never directly passed on what you have stated about diversity jurisdiction and jury trial has been agreed to by many lower federal courts that has asserted, had been denied in many other cases? Has this Court ever directly said that? Theodore H. Friedman: I would say this, Mr. Justice Goldberg. In Leon v. Galceran, decided in I think approximately 1893, the specific issue was wages, but wages is maintenance and cure. There's no issue about that. This Court has said so I think in Pacific v. Peterson, pointed out that wages consists of maintenance and cure as it were. It consists of three items: maintenance, cure, and wages -- beyond our wages. And there, it was specifically held by this Court that the claim for wages was within the savings clause, was a common law remedy, was entitled to a jury resolution. I may point now this Court's attention to the extensive scholarly discussion in Mr. Chief Justice Stone's decision in Madruga which is cited in our reply brief and there, it is comprehensively noted in the footnotes the fact -- excuse me, it's Mr. Justice Black's decision in Madruga. I'm very sorry. That the jury trials were allowed on these common law claims. Also in fact, if I may borrow from my learned adversary's brief, in the very case he cite, Henry v. Moore in which Mr. Chief Justice Stone wrote an extensive opinion and the issue there was an in rem proceeding in the state courts but in the scholarly discussion that appears there, they have numerous cases cited, a numerous discussion of all of the old law on this issue that state courts regularly treat these maritime claims and rightfully grant juries on them. The mere fact that it is maritime does not deny a jury resolution of the issues in the state courts, and the opinion below in this Court, in the Second Circuit in this case, fully accepted that fact. Arthur J. Goldberg: Did you, on the other hand, say that these states (Inaudible) Theodore H. Friedman: Oh, yes, Your Honor. You could not -- the petitioner, a seaman, could not get into the federal court absent diversity and absent pending -- Arthur J. Goldberg: (Inaudible) Theodore H. Friedman: -- to a substantial -- Arthur J. Goldberg: (Inaudible) Theodore H. Friedman: He couldn't get in the door except through 1333, the Admiralty Court jurisdiction. Arthur J. Goldberg: (Inaudible) Theodore H. Friedman: Absolutely. Arthur J. Goldberg: (Inaudible) Theodore H. Friedman: Right. Or you could, of course, attempt to invoke Rule 39 (c) of the FRCP and seek an advisory jury to the discretion of the Court, but we -- Arthur J. Goldberg: (Inaudible) Theodore H. Friedman: Well, I can only say, Mr. Justice Goldberg, that I was relatively heartbroken that the court did not -- below did not invoke that discretion and power that it have. I don't even know if it's discretionary. I see it that the Court had to, and when it was for -- and that was cited to the Court, the Brooks v. Yawkey case to the First Circuit which point out that even when the case is pending on appeal, a court may and should amend the pleadings to bring the -- Arthur J. Goldberg: (Inaudible) Theodore H. Friedman: Well, the fact that -- starting from the respondent's side, the fact that the respondent was not a citizen of New York, so that the first hurdle was acquired was -- or the second hurdle, however you look at it, that appeared from the pleading right from the outset. The fact that the petitioner's intestate, the plaintiff, was a citizen of New York or of Spain but in any case, diverse from the defendant, appeared during the course of his testimony on the first day of trial when he testified that he came from Spain and that he resided in New York, and that appears in the record here and that was testimony taken on the first day of trial. I may also say, because this was -- I may also say that I submit respectfully that it was brought to the Court's attention -- the trial court's attention, perhaps implicitly rather than explicitly, when I argue to the -- to Judge Levitt, District Judge Levitt, and appears on page 89 of the brief, that this man could've brought his proceeding in the state court on a common law basis. In the state court, it would've been entitled to a jury. I think implicit within that was that, since I was referring to the state law and what it would've been entitled to in the state law, I was referring to the diversity of citizenship and the rights under Erie v. Tompkins which would grow there from. And I think that implicitly in that argument was already brought to the Court's attention the fact that there was a diversity of citizenship vaguely but explicitly as to the facts of citizenship, certainly the first day of trial revealed the plaintiff's situation and the pleadings had already been before the Court as to the defendant. Arthur J. Goldberg: Was there any (Inaudible) Theodore H. Friedman: Only in the -- on the appeal before the Circuit Court or when the brief was filed to the Circuit Court, the brief contained a discussion of this issue and stated to the Circuit Court that we are prepared and ready to amend the pleadings if such be necessary. We noted the Brooks v. Yawkey case of the First Circuit where the Court had pointed out that it's not necessary to amend the pleading just so long as the fact of diversity is brought to the Court's attention then the Court will allow a pro forma motion after the opinion is rendered. And so, we brought to the Court's attention that fact and assume that the Brooks v. Yawkey decision would be followed. Arthur J. Goldberg: (Inaudible) Theodore H. Friedman: I would submit that he had -- Arthur J. Goldberg: (Inaudible) Theodore H. Friedman: Yes, I would submit that and I would say even further, Mr. Justice Goldberg, if I may, that I don't think, dealing with this basic and cherished procedural right, as Mr. Justice Clark -- as Judge Clark called it below, that it is -- that this can turn either on whether I, as counsel, mentioned it to Judge Levitt below. I think that if the fact of diversity of citizenship existed then the jurisdictional principle must apply just that the reverse side of the coin, supposing diversity of citizenship hadn't in fact existed and, for some reason or other, this case was in Court on diversity of citizenship. Would it depend on whether counsel called it to the Court's attention? Clearly not. Many Courts, this Court too has held that absent diversity, the sword must fall, the case must go out. I think that the sword has two sides but in any case, as I submit, it was called to the Court's attention. Of course, as I say, as we have argued in our briefs, we don't realize solely on the diversity of citizenship. We think that as a matter of fundamental policy in appended jurisdiction argument should be evoked in the main brief and perhaps more extensively developed in the reply brief, if I may direct the Court's attention to the discussion there that we're fully entitled to a jury trial below. Earl Warren: Mr. Danahar. Matthew L. Danahar: Mr. Chief Justice, may it please the Court. Petitioner in his original brief and in his reply brief which I received today or so ago and here today has alluded to and has been arguing questions which this Court refused to consider when it granted the writ. One of the questions is this very diversity question that has been discussed with Mr. Justice Goldberg. I will not yield to the temptation at this time to attempt to refute the argument on these questions that are now presented. And I will deal solely with the question which is presented, which I'll read. Question: “Does a seaman have a right to a jury trial on a claim for unpaid maintenance and cure enjoined by the claim for Jones Act negligence?” That is the only question that is presented to the Court here today. Now, since maintenance and cure is basically a maritime claim, I think it's appropriate to discuss briefly the historical background and development of the admiralty and maritime jurisdiction of this Court. As this Court knows, prior to the adoption of the Constitution. There existed in America a system of laws and these laws embodied principles of the maritime law which principles have developed from the very early ancient sea codes. Under the -- under this system, maintenance and cure claims were prevented or presented for adjudication and they were heard and determined without a jury. The framers of the Constitution, in drafting the Constitution, had this system in mind and they adopted it and incorporated it into the Constitution. They not only adopted the substantive features of this maritime law, this admiralty maritime jurisdiction, but also the procedural feature which did not permit a jury trial in these maritime claims. Now, Article 3, Section 2, Clause 1 of the Constitution is the provision which incorporated this preexisting system and it read that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction. Now, in addition to Article 3, Section 2, Clause 1, the framers of the Constitution further provided in Article 3 that Congress would have the power to set up inferior federal courts. And pursuant to this power, Congress set up the inferior court system under the first Judiciary Act of 1789. And among other things, Congress invested these inferior courts with admiralty and maritime jurisdiction. These courts were not common law courts or courts of general jurisdiction. Their jurisdiction was strictly limited to what Congress had conferred upon them. Now, the language of this Act of 1789 did not show any indication on the part of Congress to change the existing maritime practice of hearing these maritime claims without a jury. All that it provided for, it preserved to suitors the right to pursue the common law remedies in the state courts which they had a right before the adoption of the Constitution. Thus, from the very founding of the Constitution and the enactment of the first Judiciary Act, the Federal Courts had the power to hear and determine these maritime claims but only on its admiralty side where a jury was not allowed. The first Judiciary Act did not authorize the courts to give jury trials which Congress had not provided for and Congress, up to this present day has not seen fit to provide in these maritime claims, the jury trials except in two classes of cases which are not here applicable. That's the cases, so-called Great Lake cases which is 28 U.S.C. 1783, in the Jones Act case, 46 U.S.C. 688. Now, the petition -- now recognizing the fact, that this Court did not have the power to try a maritime case with the jury, has asserted that because his maritime cause of action was joined with his Jones Act claim, therefore he's entitled to a jury trial. And in doing this, he adopts the doctrine of Hurn v. Oursler, which I submit to Your Honors, is not applicable in this case at all. The Hurn doctrine of pendency has nothing to do with the mode of trial. It relates solely the question of jurisdiction and the authority of the federal court to decide a nonfederal claim that is appended to a federal claim. It's really a question of jurisdiction and giving access in the federal court to a state claim. I submit to Your Honors there's no -- there's no sound basis for extending this Hurn doctrine which is limited strictly to jurisdictional and not to mode of trial, particularly in view of the fact that Congress is not seen fit to extend jury trials in these maritime claims and the Constitution certainly does not provide for it. Now, since petitioner's maintenance and cure claim was joined in the same complaint with his Jones Act claim, it is therefore subject to the Federal Rules of Civil Procedure. Potter Stewart: You don't question in any way the propriety jointer of the two claims, do you? Matthew L. Danahar: No, I do not, sir. Potter Stewart: That's customary. That's all the time (Inaudible). Matthew L. Danahar: Yes sir. The only thing I do question is that the mode of trial is governed by the Federal Rules of Civil Procedure and the District Court must follow these rules in giving the mode of trial. Arthur J. Goldberg: (Inaudible) Matthew L. Danahar: Yes, sir. Arthur J. Goldberg: (Inaudible) Matthew L. Danahar: Your Honor, Mr. Justice Goldberg, I cannot quarrel with the policy considerations urged by my opponent.I must concede that from a practical standpoint of convenience that it probably would be better to try these two claims together. My position is that the Court does not have the right or the power to do that is up to the Congress or this Court under its rulemaking power to provide for that right, and that the District Court cannot do it. Hugo L. Black: Well, is there any statute or rule that says they cannot do it? Matthew L. Danahar: Well, there's no -- no, Mr. Justice Black, there's no statute that says they cannot do it but, from the history of the development of the maritime law, as I just attempted to point out, from time immemorial in maritime cases, you have not had juries. Hugo L. Black: I agree that that's the Court's -- this case -- Courts has held that equity cases and maritime cases do not require to have a jury. The Constitution doesn't tell us, but has there ever been any case that said that -- there may have been that a maritime case cannot be tried before a jury if the judge wants to? Matthew L. Danahar: Well, you mean before this case? Hugo L. Black: Yes. Well, this case, as I gather, would put perhaps on the ground that the claim didn't come at the right time. But whether -- has there ever been a case in this Court, as I've said that a maritime issue like this cannot be tried before a jury? Matthew L. Danahar: No. No, sir. No, Mr. Justice Black. I'm not aware of any such case. Hugo L. Black: That's the reason I was a little startled when you said the Court was without power. I understand your historical argument, but you're going far enough to say it was without power to do it. Matthew L. Danahar: Yes, sir. Hugo L. Black: That's what your case depends on? Matthew L. Danahar: Yes, sir. My case depends upon the lack of power in the District Court to grant a jury trial in a maritime claim absent diversity of citizenship. Potter Stewart: Well, even -- it doesn't necessarily -- perhaps the only -- in your opinion, the only good argument you can make is that -- and the only one that will stand up, but Judge Smith and Judge Waterman apparently didn't feel there was a lack of power in the judges, the trial judges' discretion to submit the maintenance and cure case to the jury and that indeed, the district judge did have such discretion to submit it but they nevertheless concurred with the -- with Judge Friendly's judgment because they didn't think that there was any compulsion to do so, is that it? Matthew L. Danahar: That's right, Mr. Justice Stewart. Potter Stewart: Now, that may or may not be valid but in other words, at least two circuit judges didn't go so far as you did and they nevertheless concurred in the judgment. Matthew L. Danahar: That's correct. Now, as I was saying -- Hugo L. Black: But as I understand, you agree that -- I thought you said that if there is power, that you agree with the other side as to the policy of the obedience and the wisdom of doing it -- Matthew L. Danahar: Yes. Hugo L. Black: -- insofar as the Court procedure is concerned. Matthew L. Danahar: Yes, Mr. Justice Black. I must agree with my opponent as far as policy considerations are concerned. It probably would be better, more convenient, can save time of the Court to try both of these claims together, but I say that the Court has no such right to do that absent -- this Court here, making a rule providing for it. Hugo L. Black: So, it would have to be expressly permitted by a rule or a statute. Matthew L. Danahar: Yes, sir. I return now to my discussion of the federal rules which would govern in this case because the maintenance and cure claim was pendent to the Jones Act claim. Rule 38 and Rule 39 are the specific rules which deal with the mode of trial in cases where these rules are applicable. Now, under Rule 38, the right to a jury trial is preserved and filed, as declared by the Seventh Amendment, in cases as declared by the Seventh Amendment and statutes by the United States. And under Rule 39, if the Court should find that one of the issues in which a jury trial has been demanded does not come under the Seventh Amendment or under the statute of the United States and they cannot grant a jury trial and this is a specific prohibition in the rules to that effect. Now, petitioner in this case does not come under the Seventh Amendment of the Constitution because that deals with common law rights and remedies and I pose that such situations, the common law right to a jury trial shall be preserved. Petitioner does not come under that because this is a maritime right. It's maritime in nature and it's not legal or common law in nature whatsoever. Petitioner has no right to a jury trial under any statute of the United States. Congress has seen fit to enact two statutes in which it has specifically granted jury trials. One of them is the Great Lake statute which I have referred to before in the Jones Act, but neither of these statutes includes the maintenance and cure claim. Surely, the language of the Jones Act itself doesn't expressly include it. There's nothing in the Act at all that refers to maintenance and cure. However, petitioner takes the position that the maintenance and cure claim is so intertwined as it puts it with the Jones Act case that it becomes part of it. And therefore, it was -- it's implicit that Congress must have intended that it'd be tried with the Jones Act case into a jury. I point out that while it is true, there is some connection between a Jones Act case and the maintenance and cure case, that is, there is a certain amount of intertwining, particularly in this case, because the Jones Act case is based upon one and the same action as the maintenance and cure claim. So, there is intertwining to that extent. Potter Stewart: But am I right in remembering that in order to recover maintenance and cure, you don't have to show any unseaworthiness or any fault or anything else in the part of the ship? If you fall sick and you're a member of the ship's crew, you're entitled to maintenance and cure, are you not? Matthew L. Danahar: That's correct, Mr. Justice Stewart. Arthur J. Goldberg: (Inaudible) Matthew L. Danahar: That's correct. Arthur J. Goldberg: Is that right? Matthew L. Danahar: That's correct. Arthur J. Goldberg: (Inaudible) Matthew L. Danahar: That's correct. This -- Byron R. White: How about the -- as the result of the decisions below, there was no unseaworthiness and there was no negligence, is that right? Matthew L. Danahar: There was a claim for unseaworthiness and negligence and that issue was submitted to the jury -- Byron R. White: And -- Matthew L. Danahar: -- for determination and resulted in a verdict for the defendant. Byron R. White: So, that there is no -- the Jones Act or unseaworthiness claim left here. Matthew L. Danahar: That's -- that is correct, Mr. Justice White. Byron R. White: Nothing to be intertwined with. Matthew L. Danahar: That is correct, Mr. Justice White. Arthur J. Goldberg: (Inaudible) Matthew L. Danahar: Well, to answer your question, Mr. Justice Goldberg, it should be determined there. That's correct but, in answer to Mr. Justice White, it is a fact that we no longer have anymore Jones Act or unseaworthiness claim in this case. Arthur J. Goldberg: (Inaudible) Matthew L. Danahar: It was decided against the petitioner. Potter Stewart: Well your -- your point, I gather, is that the question on which we granted certiorari and the present posture of the case simply isn't here. Matthew L. Danahar: That's correct, Mr. Justice Stewart. Potter Stewart: What we have now is an isolated single claim for maintenance and cure. Matthew L. Danahar: That's correct. Potter Stewart: Not joined to anything else. Matthew L. Danahar: Correct. And I say, because of that situation, I think the writ has been improvidently granted. And I so argue that in the first point of my brief. Arthur J. Goldberg: (Inaudible) Matthew L. Danahar: That's the problem presented here, Your Honor. There's one other element I would like to add and that is we do not have diversity of citizenship here. Arthur J. Goldberg: (Inaudible) Matthew L. Danahar: Yes. Arthur J. Goldberg: (Inaudible) Matthew L. Danahar: That's right sir. So, getting back to the intertwining of the maintenance and cure claim with the Jones Act claim, I say that the only intertwining in this case is that both claims arose out of the same accident and nothing more. That's where the intertwining ceases from thereon. You have separate and distinct and independent causes of action. The Jones Act cause of action is an action that damages personal injury based on negligence. Your maintenance and cure of cause of action is simply an action to recover maintenance. All you have to show in such an action is that an action or an injury occurred on the ship and that you were disabled during a certain period of time and therefore, you're entitled to be maintained during that period of time. William J. Brennan, Jr.: Well, may I get this through? Looking at the petition, there were two grounds, the questions presented under the Jones Act suits which we refused to take, is that it? Questions three and four seemed to deal with the Jones Act claim, questions one and two, the maintenance and cure claim. I'm looking at the petition for cert, what we do, limit this to questions one and two? Potter Stewart: No, just to one. Just to one. Matthew L. Danahar: Just to one. William J. Brennan, Jr.: Just to one. Matthew L. Danahar: Does the seaman have a right to a jury trial on a claim for unpaid maintenance and cure when joined with a claim for Jones Act negligence? That's the only question that -- Potter Stewart: So, it's not his fault if we severed this now so that's -- and make it a maintenance and cure claim, is it? He tried to get his -- Matthew L. Danahar: It's not his fault, if Your Honor please, that this Court has seen fit to deny his -- the other questions that he presented. If that's what you mean. Arthur J. Goldberg: (Inaudible) Matthew L. Danahar: Going back again to the history of the admiralty maritime jurisdiction prior to the Constitution, even in state courts, maritime matters were heard and determined and in those instances, jury trials were permitted and when the Constitution was enacted or rather when the Judiciary Act was passed and the Congress set up the inferior courts and invested them with jurisdiction in these admiralty maritime matters, they specifically reserved to suitors the right to pursue whatever remedies were existing at that time in the common law courts of the states and colonies. So, this practice of hearing and determining maritime claims in common law existed long before the adoption of the Constitution, and that was preserved in the savings to the suitor's clause. Potter Stewart: So, you're -- in basic agreement, as I understand you with Mr. Friedman, aren't you, Mr. Danahar, on the outer limits of this thing?On the general framework, you say that you agree with him, as I understand it that perhaps you don't, that if this certainly -- if this were in a -- in a state court, an action exclusively for maintenance and cure, the plaintiff would be entitled upon request to a jury trial. Matthew L. Danahar: Yes, I do. Potter Stewart: And do you all -- further agree that in a federal court where jurisdiction is based upon diversity of citizenship there would also be such a right? Matthew L. Danahar: I do, sir. Potter Stewart: And you -- and then he agrees with you on the other hand that if jurisdiction is based only on the admiralty jurisdiction of the federal courts and there's a single action for maintenance and cure, that he would have no right to a jury trial. Matthew L. Danahar: Correct. Potter Stewart: And I think therefore, you -- at least on the outer limits, we've narrowed the controversy between you. Matthew L. Danahar: That's correct. Arthur J. Goldberg: Mr. Danahar, I suggest that you both (Inaudible) Matthew L. Danahar: I would be interested in that case, Your Honor. Arthur J. Goldberg: (Inaudible) Matthew L. Danahar: In summary, I would just like to say that in the absence of diversity, it is the position of the respondent that maintenance and cure claim is not properly triable to a jury on the civil side of the federal court, that pendency of policy considerations notwithstanding the District Court, does not have the power to extend this right to a jury trial in his maritime claim for maintenance and cure. Earl Warren: Mr. Friedman. Theodore H. Friedman: With the Court's permission, I would like to respond to a couple of points and particularly to point out the following. The petitioner here appeared and entered the federal court through the state door. Granted, he had the right to come in through the admiralty door. He chose to come in through the state door. By coming in to the state door, and I'll speak in a moment of Simler v. Conner and its effects on this situation. But holding that to a side for the moment, I submit that this Court has held on numerous occasions, and I refer specifically to the decision of Mr. Justice Black in Madruga against the Superior Court of California, and noted that in admiralty matters, notwithstanding the Constitution, Article 3 seems to suggest that there is exclusive jurisdiction of admiralty matters. What really is the fact is that there is concurrent jurisdiction of the state courts and of the federal courts. Accordingly, this petitioner was within his rights to claim and he is within his rights here and now to argue to this Honorable Court, that he had a state common law right, notwithstanding that it is an event that occurred on the navigable waters and is in that sense, drenched with the maritime. There is a common law and a long history of common law claims, notwithstanding it comes from the maritime. The only maritime exclusively admiralty and maritime proceeding that exists, as was held in Madruga and in other cases, are the in rem proceedings against the offending vessel or thing and in personam judgment, a suit for money is permissibly, notwithstanding that it arises from the navigable waters, a state common law claim, if it be such. Now, I understand the majority's opinion of this Court in Romero to be to the effect that there is a “common law” law of the maritime controllable by this Court in the sense that it must be uniform throughout the country. In that sense, it is nationally administered but nevertheless, in its origins, it comes from the state common law. It was the minority ruling to apply -- the minority in Romero. There'd be no question this man had a jury trial. He'd be in the Court under 1331 of Title 28. But under the majority opinion, in applying Romero -- William J. Brennan, Jr.: Well, I think in a sense, suggested independently that 1331 point that probably a jury trial is required where joined with a Jones Act case, could it? Theodore H. Friedman: Well, that's our position here, sir. Now, I just want to -- Potter Stewart: But the fed -- but your -- accepting everything you say about his right of action in a state court and a right to a jury trial there, a federal court is a court of limited jurisdiction and the jurisdiction in this case was invoked, the admiralty jurisdiction of the federal court was invoked, was it not? There was no -- Theodore H. Friedman: With all respect, Your Honor, that is the basic point I want to make and the answer there is no. Potter Stewart: Tell me why. Theodore H. Friedman: That is the basic point I want to make. He came in on a pending jurisdiction theory, assuming that he hadn't -- he didn't have diversity of citizenship, holding that to the side. Potter Stewart: Right, right. Theodore H. Friedman: He claimed, just as a man with a copyright and an unfair competition case, the classic Hurn v. Oursler case. He has a federal claim under the Copyright Act and the unfair com -- this man had a federal claim under the Jones Act. Potter Stewart: Right. Theodore H. Friedman: He claimed that he had a substantially related claim under maintenance and cure. He claims that that is a state claim under the common law. It may also be a federal admiralty and maritime claim but it's also a state common law claim. He alleges it, appended to his federal substantially related Jones Act claim. He is therefore entitled to walk in the door with his substantially related claim. That's the tail to the dog. Speaker: (Inaudible) Theodore H. Friedman: Well, from the majority opinion in Romero, from the various decisions cited to this Court, it is historical that the claim for maintenance and cure arises out of the common law. This is what this Court decided in Romero. Potter Stewart: You mean, it's a savings act claim. Theodore H. Friedman: Excuse me? Potter Stewart: It's the savings clause claim -- Theodore H. Friedman: Yes. Potter Stewart: -- is what you're saying. Theodore H. Friedman: Thank you, Your Honor, yes. It is exactly, it's a savings law claim, a clause claim. It is one of those common law claims that existed prior to the Judiciary Act of 1789, historically triable in the state courts to a jury and was saved to suitors under the Judiciary Act of 1789. Speaker: (Inaudible) Theodore H. Friedman: Well, this is what this Court said in Madruga, that the fact that it is maritime doesn't mean that it is not state common law. That is the -- I hope that that -- William J. Brennan, Jr.: Isn't that the whole burden of the savings clause, that even if it is a maritime claim, it was the kind of thing that was actionable in common law and, under the savings clause, is actionable in states? Theodore H. Friedman: Yes, if I may adopt Your Honor's words, it is both, a maritime and a common law claim, if that it was what Your Honor is saying. At least -- Speaker: Was this action for common law? Theodore H. Friedman: Well, as to that, as I unders -- Speaker: That was my question. Theodore H. Friedman: Mr. Justice Harlan, if I may respond this way. Not that our agreement, counsel's agreement, is in any way binding on the Court, but the answer to the diversity of citizenship proposition could not be what counsel have agreed it to be if there wasn't a state common law basis for the maintenance and cure claim because if there isn't such a basis, then diversity of citizenship would not apply and it could not enter the federal court as a diversity of citizenship case because that principle applies only to state common law claims. Speaker: (Inaudible) Theodore H. Friedman: Well, yes, Your Honor. I refer to Leon v. Galceran, cited below, dealing with wages but honoring wages to the end of the voyage is -- well, I submit, Mr. Justice Harlan, is not in any sense different than maintenance and cure. It comes -- it springs from the same birthplace and is the same right of a seaman. The seaman injured aboard ship in the course of employment without proving negligence or unseaworthiness entitled to three things: maintenance, cure and unearned wages, from the laws of Oleron, etcetera, and that's all the same thing. Now, Leon v. Galceran deals with it specifically, Garrett v. Moore-McCormack in passing and if I may refer to just one point that I would like to say before my time runs up, and that is this. The aspect of whether it's pending and now that we are -- the moot question, I submit, (a) that you have to decide as was pointed out from the bench here, this question when it arose. And it arose before there'd been any jury verdict. But also, I would like to direct the Court's attention to the fact that in the first cause of action, it was alleged that the plaintiff was injured by the failure to pay the maintenance and cure. Now, unless and until the jury -- the trier of the issue of what maintenance and cure would do had decided that so much maintenance was due and so much cure was due for which injuries and for which period of disability, no jury could possibly return a verdict for nil or for thousands as to the effect of the aggravation and the hurt and the consequential damages to this seaman by the failure to pay the maintenance and cure when due. I therefore submit that if the petitioner here is successful before this Honorable Court -- William J. Brennan, Jr.: Well, that was a negligent failure to pay, I gather, as a Jones Act claim, wasn't it? Theodore H. Friedman: Yes, Your Honor, and I -- William J. Brennan, Jr.: Well, wasn't that decided against you? Theodore H. Friedman: No, it was never decided because the jury -- William J. Brennan, Jr.: Well, did that go to the jury? I don't know. I haven't read the record. Theodore H. Friedman: It did not go to the jury and it could not go to the jury because the trial court, having reserved to himself in subsequent hearings to be held after the verdict of the jury, the question of what maintenance and cure would do -- William J. Brennan, Jr.: Or did the judge take to himself the Jones Act phase or the negligent (Inaudible) phase? Theodore H. Friedman: In effect, he did, Your Honor, and that's the point. He said that all main -- that maintenance and cure issues were to be decided on evidence submitted to him after the jury verdict. He uses the very words “after the jury verdict,” and that's what happened. And I submit that no jury could've possibly considered the question of the failure to pay -- William J. Brennan, Jr.: Well, are you telling us that it's still opened, the Jones Act claim, based on negligent failure to pay maintenance and cure? Theodore H. Friedman: Yes, Your Honor, and I submit -- William J. Brennan, Jr.: And the way we've limited your -- Theodore H. Friedman: I submit that your remand should include a direction that if -- William J. Brennan, Jr.: But we've thrown you out on the Jones Act claims here? Theodore H. Friedman: You -- not allowed me to argue here -- William J. Brennan, Jr.: Alright, we're (Voice Overlap) throwing you out. We just haven't let you open your mouth yet. Theodore H. Friedman: You may see fit on this early discussion to allow a reopening of the petition, I don't know. I hope. But, in any case, I submit that the -- William J. Brennan, Jr.: Rather than dismiss as incompetently granted. Theodore H. Friedman: Well, it truly was not improvidently or incompetently granted. That I'm sure of but in any case, I say that the denial of the writ on the Jones Act was limited only to the question of the Jones Act claim basically, as it related to the negligence of ordering up -- him up the gangway and whether certain evidence have noticed that should've been admitted -- wasn't admitted and whether it was probably for the Circuit Court, which held that it was improper to bar the evidence to nevertheless sustain the verdict. That was the Jones Act claim that was submitted in the petition for certiorari and was not covered but the Jones Act claim, insofar as related to the maintenance and cure issues, has never been submitted. And, I submit, on the remand if granted, should clearly state rather than us have to argue below that we are now permitted to try all of the issues limited relating to maintenance and cure, whatsoever they'd be, including, if the petition again so show, the negligent failure to pay the maintenance and cure when due and the aggravation and consequential harm which flowed there from. Potter Stewart: I would like to ask you about what you think of the effect of Simler against Conner on your argument. Theodore H. Friedman: I'm sorry. I have it here. I didn't get to it. Simler v. Conner clearly held that -- also held, in addition to noting this Court's historic favor, looking at favor upon trial by jury of issues. Also noted that the basic nature of the claim must be looked to rather than the words of the pleading or the form of which it's presented. Potter Stewart: And you told us that the basic nature of this claim, it's an admiralty claim and in the federal courts alone would not be triable as of right to a jury. Theodore H. Friedman: I surely didn't hope -- intended to say that Mr. Justice Stewart. What I said was that this is both a maritime and a common law claim, historically triable before a jury in the places and in the Courts where it arose, before there was a Constitution, before there was a federal court, before this great institution existed. The Courts of the states and the colonies tried this claim before a jury. That was the basic nature of it. Looking to the basic nature of it, this Court, whether it apply the state law on the pending jurisdiction theory or the -- establish a federal rule looking to the origin and basic nature of the claim, I submit in both -- through both avenues, may and should grant a trial by jury and -- or viewed from a more modern view point, viewing the policy as conceded here by counsel as to what should be desirable, this Court may and should establish as a policy that these type of claims when joined and when related to the same incident in employment and injuries should be tried with the same jury that decides a substantial -- Potter Stewart: Well, now, Mr. Friedman, accepting the truth of your historic argument that before there was a Constitution these were triable in the common law courts of the colonies before juries which had a right to trial by jury and further that after the adoption of the Constitution, in the Courts of the state, you had a right to a jury trial in the maintenance and cure claim. I was -- Theodore H. Friedman: Yes. Potter Stewart: I frankly didn't know that but I accept -- accepting all that is true. It still remains a fact, does it not, that in the federal trial courts, a claim -- an isolated claim for maintenance and cure as a matter of federal law and practice and precedent is not triable to a jury? Isn't that correct? Theodore H. Friedman: That is correct and -- but as to one that is -- Potter Stewart: In Simler -- let me just ask you -- my -- the reason I asked that is because I want to ask a further question. Simler against Conner held, did it not, that in a diversity case you apply the federal standard in order to find out whether a person was entitled to a jury trial. Theodore H. Friedman: Yes. But as to the question of what standard or what rule to apply to a maintenance and cure claim which is substantially related and intertwined with a Jones Act claim arising out of the same incident, this I submit, we have no determination from this Court and I submit that policy considerations dictate that it be granted a jury trial. I also submit that this case was not before the -- Judge Levitt on the admiralty side. It was not an admiralty case. It was before him as a civil side case all the way from the very beginning. Thank you and I thank the Court for allowing me the extra time. Earl Warren: We'll recess now.

John H. Price, Jr.: Mr. Justice Black, may it please the Court. Mr. Patterson said on behalf of the State of Mississippi prior to the lunch hour. Now there the claim between the United States and the State of Mississippi does not evolve from shoreline but from the islands. The Government contends and concedes to the State of Mississippi that the State of Mississippi line under the -- boundary line under the Submerged Lands Act, extends three miles seaward from the seaward side of the islands on the perimeter of our shoreline. If the Court can see here, we have a chain of islands meeting from the east to west here. We have Petit Bois, Horn, Ship, and Cat Islands. Ship Island is more than three leagues from the coastline. It measured approximately about three and one half leagues from the seaward side of Ship Island to our -- to our shoreline, I should have said. These other islands are closer. Petit Bois Island, near the closest point, is about six geographical or nautical miles from the shoreline and Ship Island is the farthest island away. So the only controversy between the State of Mississippi and a Federal Government here is the difference between a -- a measure from three miles south of and seaward -- from the seaward side of this chain of islands here which they regard as our coastline under the Submerged Lands Act and upon which we claim to be three leagues from this, the seaward side of these islands into the Gulf, not to exceed however, six leagues from shore. And the reason for the exception of course is, since Ship Island is more than three leagues from our shoreline, we cannot claim under our boundary description, under our Enabling Act and Act of Admission that we go a full league, full three leagues from the seaward side of this island. We are bound by our boundary of description. We recognize that fact. Therefore, at every other point almost on our coastline here, we can go out full six leagues from shore, but at this one point here, we cannot go quite so far. We can only go -- our maximum distance is six leagues from shore. Now, the basis of our description and our boundary is on our Enabling Act in eight -- May 18 -- March 1817, and it read thusly, “The inhabitants of the western part of the Mississippi territory be and they hereby are authorized to form for themselves a constitution and state government.” And Section 2 picks up, “And be it further enacted that the said State shall consist of all the territory included within the following boundaries.” You see the word, “boundaries” used there. Mr. Justice Harlan has pointed out on several occasions during the course of the arguments here, what is the boundary. If the Court please, that is Mississippi's boundary here, which should be described hereafter in our Enabling Act. They so specified as boundary here, to wit, without reading at all for the sake of brevity, I'll go around the circumference here. Beginning up to the southern boundary line of the State of Tennessee which strikes the Mississippi River, it comes around to the Tennessee River and thence up to Tennessee River to the mouth of Bear Creek. It gets down the line down do what was then, the northwest corner of Washington County, Alabama. I believe that boundary has -- that county has been changed somewhat, but then it was the northwest corner of Washington County, Alabama. It thence due south to the Gulf of Mexico, thence westwardly, including all islands within six leagues of the shore, to the most eastern junction of Pearl River with Lake Borgne. Now, those were as important -- Potter Stewart: Did it just say -- did it just say westwardly, or did it say westwardly along the Gulf? John H. Price, Jr.: That -- that's westward, it always says, Your Honor -- along the Gulf -- and by the way, I'll -- Charles E. Whittaker: (Inaudible) John H. Price, Jr.: It thence due south to the Gulf of Mexico, thence westwardly, including all islands within six leagues of the shore to the most eastern junction of Pearl River with Lake Borgne. Now, that language is important there because when it gets to the Gulf of Mexico and runs thence westwardly, it doesn't go thence westwardly to the most and east -- most eastern junction of Pearl River with Lake Borgne and then come back. And as an afterthought, say including all islands within six leagues of the shore. To me the effect would have been the same. But I emphasize that effect because the boundary description comes across to that point of the Gulf of Mexico. And then it runs westwardly and embraces all this area here, all the way over to the -- align directly to the most eastern junction of Pearl River with Lake Borgne here. It sweeps the whole thing across one arm. It sweeps the whole area after the six-league limit here in the Gulf of Mexico. Charles E. Whittaker: (Inaudible) John H. Price, Jr.: Yes, sir. Charles E. Whittaker: Where is the mark of south (Inaudible) John H. Price, Jr.: Yes. Charles E. Whittaker: (Inaudible) John H. Price, Jr.: Yes, Your Honor. This point right here, and a continuation of this line drawn from the southern from the northwest corner of Washington County, Alabama, down to the Gulf of Mexico, that line projected out here, six leagues into the Gulf is our southeastern boundary line -- Charles E. Whittaker: Right. John H. Price, Jr.: -- under our description. Did that answer your question? Charles E. Whittaker: No -- no. Not just so (Inaudible) John H. Price, Jr.: It is known as Mississippi's island, Your Honor. And getting back to your question a moment ago, if I may answer it this way, as you quoted the paragraph from Mr. Patterson a while ago, as to how we claimed this inland water between the mainland and the islands out there. First of all, we claim it by our boundary description. We had a water boundary in the Gulf of Mexico according to our Enabling Act which was adopted by our Act of Admission. We contend that. Furthermore, as the Government concedes in his brief on page 254 of its original main brief, in eluding factor that cross statement about Louisiana, in the first full paragraph there, as in the case of Louisiana, we need not consider whether the language including the islands et cetera, would of itself, include the water area intervening between the islands and the mainland though we believe that it would not, because it happened with all the water, so situated in the -- in Mississippi is in Mississippi Sound, which this Court has described as inland water and cites Louisiana versus Mississippi. The bed of these inland waters passed to the State on its entry into the Union, under Pollard's Lessee versus Hagan in 3 How. 212, decided in 1845. So also we agree that Mississippi has a marginal belt extending three miles seaward from the islands marking the outer limit of the inland waters of Mississippi Sound, under the ordinary application for three-mile rule. And then it sets up in the -- in the next sentence here, the only issue between Mississippi and the Government is, as I've mentioned a while ago in beginning. Furthermore of course, under the definition in -- of the coastline in the Submerged Lands Act, which is clear to define there, specified of course we do claim that area also under -- under their Submerged Lands Act. That's the only way the Government concedes it to us, by virtue of being inland waters. That we claim it by our boundary description and also this Court's holding in -- in Pollard versus Hagan, in 1845. Now going from here, did I answer your question, Your Honor? Hugo L. Black: I understand that the Mississippi (Inaudible) John H. Price, Jr.: Yes, sir, that's correct. But not to -- not to exceed three leagues from the seaward side of the island, Your Honor. Hugo L. Black: Well, are you (Inaudible) John H. Price, Jr.: That's because the seaward side of -- of Ship Island here is moving three leagues from shore. We can't claim quite so much at that point do you we think. We are bound by our boundary description of six leagues from shore. Therefore, we cannot go -- Hugo L. Black: You say that as you put shore. John H. Price, Jr.: Shore, it's right on the Gulf of Mexico -- right up here on the -- right up here Gulfport and Biloxi along that shore, it wraps to move some since the State came into the Union, but that is our -- the mainland of the State of Mississippi right there. That's here -- that's our shoreline, as we see it. Now furthermore, in pursuance to the Enabling Act as had just given, under your court or given by the Federal Government where our boundaries were set in Enabling Act. It says you go out and you form your constitution and I will let you into the Union. So we did so. When I -- 1817 -- William J. Brennan, Jr.: Now Mr. -- Mr. -- John H. Price, Jr.: Right, sir. William J. Brennan, Jr.: May -- may I just clear up one thing that puzzles me? John H. Price, Jr.: Yes, sir. William J. Brennan, Jr.: United States concedes that this water between those -- outermost islands in the shore. Mississippi is a part of the inland waters of -- John H. Price, Jr.: That's correct, Your Honor. William J. Brennan, Jr.: You however claim that you get it not by reason of that or in addition to getting it that way. You get it because it's within your boundaries. John H. Price, Jr.: Yes, sir. That is correct. William J. Brennan, Jr.: So we come back to the question of whether or not, the boundary is at the outermost island. John H. Price, Jr.: Yes, sir, that's correct. I will come to that -- I'll -- I'd recognize that to be important to the Court and I will come to that and -- and stress that in -- in a moment or two. In our Constitution of 1817 pursuant to our Enabling Act, we started -- we represented the people inhabiting the western part of the Mississippi territory, contained within the following limits. There again, we set our boundaries limits are. And we describe our boundary the same as they were described in our Enabling Act, and I just conclude by saying and thence westwardly including all islands within six leagues of the shore to the most eastern junction of Pearl River with Lake Borgne. Now, the next Act with regard to our coming into the Union was our Act of Admission. And perhaps I should read it to the Court to show how we do refer back to our Enabling Act, “Whereas in pursuance to an act of Congress passed on the 1st day of March, 1817, entitled an act to enable the people of the western part of the Mississippi territory to form a constitution and state government and for the admission of each State -- of such State into the Union on equal footing with the original States.” Incidentally here, Your Honor, I know of no place in the Constitution that equal footing appears, except in these acts of admission that the Court inquired about this morning. The people of said territory, did on the 15th day of August in the present year by a convention called for that purpose, formed for our -- themselves a constitution and state government, which constitution and state government so formed as Republican. And in conformity to the principles of articles of compact between the original States and the people of the States and States in the north -- the territory northwest of the River Ohio etcetera. So that -- it refers back to our Enabling Act. So we come to the point that the Government's -- the argument there that, at the time, means this boundary relinquish theory, when you came in, you could not claim more than three miles. Does the Government say by that theory that when they set out boundaries themselves by the Enabling Act and says you may form your constitution, if you do so on Republican way and in effect, cite these boundaries, we'll let you in? Did the Federal Government reneged on its agreement prior the time we came into the Union? If you follow these rules, we'll let you in according to this boundaries authority. Therefore, we contend the Submerged Lands Act means when it says, as it existed at the time it came under the Union or prior to. If you read it into Section 4 of the Submerged Lands Act, that necessarily, this Act of Admission is not a one second proposition. If there's a continuing act from the Enabling Act to the Constitution of the State and then on to the Act of Admission, that is bound to follow by any reason of interpretation, we contend. A federal rule by Mississippi Constitution of 1832 and 1869, our boundaries were not changed. In 1890, we started off by saying the limits and boundaries of the State of Mississippi are as follows, and described them -- substantially a lot there described in the Enabling Act with different language in some particulars. But then we come down thence on a direct line from this -- what was formerly Washington County, Alabama. Thence on a direct line to a point, 10 miles east of the Pascagoula River on the Gulf of Mexico and then the same language out that thence westwardly including all islands within six leagues of the shore. Now this, as Mr. Patterson said this morning, this six -- Hugo L. Black: To -- to a -- to a certain point, where is that certain point on the map? John H. Price, Jr.: The point -- Your Honor, that point there -- Hugo L. Black: Yes to -- John H. Price, Jr.: -- that says, thence to -- down to -- Hugo L. Black: 10 miles most eastern junction of Pearl River with Lake Borgne. John H. Price, Jr.: That's over here, Your Honor. Hugo L. Black: That right there? John H. Price, Jr.: It comes -- it comes to crossover to that point here. It's a line out from that area into the Gulf of Mexico, we say is our southwestern boundary line. Hugo L. Black: It says to the most eastern junction of Pearl River with Lake Borgne, is it joined there in the Gulf? John H. Price, Jr.: It joins in the Gulf. It joins (Inaudible) projected of a line out from the -- the most eastern junction of Pearl River with Lake Borgne is our shore -- where the line appears on the shore. Our seaward bound -- Hugo L. Black: Where is the -- where is the -- that junction on the shore? John H. Price, Jr.: Right here, Your Honor. Right here down, our western boundary here. Hugo L. Black: That's on the island. John H. Price, Jr.: Those 50 islands cited here that our shoreline comes out and projects out here, right here. Hugo L. Black: Now what is that point right there? John H. Price, Jr.: This point here is the most eastern junction of Pearl River with Lake Borgne when you come across from the southeastern boundary line and bring all the islands and area into the six-league boundary and you come over to this point here, include with the lines projected out here into the Gulf of Mexico, just six leagues from -- from shore at that point. Potter Stewart: Where is -- where is Pass Christian on that? It's not in our part -- John H. Price, Jr.: Is that -- it's not on the map (Inaudible) at this point here Your Honor (Inaudible) right here that's -- Potter Stewart: And where is the Biloxi? John H. Price, Jr.: Biloxi is -- Potter Stewart: Over there, yes. John H. Price, Jr.: Biloxi's right here. Potter Stewart: Yes, right. John H. Price, Jr.: Biloxi and (Inaudible) over here. Potter Stewart: Pass Christian is over by the (Inaudible) water. John H. Price, Jr.: It's back over this direction here, Your Honor back towards the Louisiana land over here. Charles E. Whittaker: Mr. Price, do you understand with reference to Section 2, you within this (Inaudible) waters to uphold stroke of the breadth of the -- your southern ground boundaries? John H. Price, Jr.: They do not, Your Honor. They only concede after the seaward side of these islands here, a line drawn from island to island seaward side to seaward side of the islands, along the seaward side to the islands. Charles E. Whittaker: But does that cover the whole distance both in east and west of your State? John H. Price, Jr.: The island do not -- do not quite, Your Honor. Charles E. Whittaker: Is that a concession? John H. Price, Jr.: I beg your pardon? Charles E. Whittaker: Is the Government's concession? John H. Price, Jr.: That is the Government's concession. And our boundary (Inaudible) comes across, and under on Louisiana versus Mississippi, it was projected that only the State of Mississippi is somewhat like this. And it withdrew with -- the lines would follow as they can all the way across our southern boundary line as I understand their concession. If the Court please, hurrying along here, we claim the southern portion of Mississippi this part here, (Inaudible) on 1812 under the Louisiana Purchase. That was held by this Court in Foster versus Neilson. We occupied it, a person does not ought to occupy by Proclamation 1810. And in Foster versus Neilson, this Court held that by virtue of the fact that Legislative Branch had acted in asserting a claim to by adding to the Mississippi territory in 1812 and other actions that it was taken by us and giver out -- granted to us by the Louisiana Purchase. Now, the most important part I'd like to get to you now, as before my time runs out is the fact that the reasonable basis for our conclusion here that our line doesn't go just to the islands out there, although it includes the islands, it goes through the area of six leagues (Inaudible), six leagues from shore. And historically speaking when Fort Massachusetts were built on Ship Island here, in about 1859, Congress appropriated money for it and built by 1860 or 1861. And the fort then, as history shows, is well upon the mainland and Ship Island. At the present time, if you go Ship Island, you see that the -- in the north side of Ship Island under the land we'd cite, the island now, the fort now sits considerable distance out into the water on one side, because the island has washed away to that extent. Also Ship Island near and not entirely after it's drawn on this map, because now, that this map would go -- in 1947, a hurricane in 1947 cut a channel and cut Ship Island in two. The U.S. told from geodetic survey charged that you have in the back of our brief, do show that severance in our island and so that there was a complete separation of the island here. Speaker: Can I ask you a question, now? Are those islands inhabited? John H. Price, Jr.: If your Honor please, the American legion if Biloxi-owned Ship Island now. And they have this port of course, which they have somebody I've taken care of ensure impasses by through. It's also a concession stand out there, the beach which is frequently used on the seaward side of the island here. Now, there've been some talk about, I think it belongs to the other island, they're not very well developed as yet. But people did go out there, they're not even going to live out there, except that they have a lighthouse in Ship Island, of one man that I know of, who lives on Ship Island was all who takes care of the fort out there. But there was an island here, in 1931 disappeared. Just in the east -- east side of Ship Island here, what is now shown here in Coast & Geodetic Survey chart in our brief, there's a (Inaudible) right in this point here. That island was built up. It had been developed and there was a night club out there and it was quite a tourist attraction for -- for a great many years. In 1930 and 1931, the island finally disappeared and that allows under about three and half feet of water. The only evidence remaining of the past existence of the island here's that there's now a -- an artesian well pipe that's (Inaudible) water into the Gulf of Mexico. Also, as Mr. Sachse mentioned yesterday, Timbalier Island off -- off the coast of Louisiana has moved some nine miles in the last number of years. Therefore, we contend that the very nature of the islands here, that islands move and ship from place to place. Therefore, definitely positive that if we contend, that there might be an island here, next week or next year off and seaward of these islands here. And it must've been known when the boundary was -- was described in the early days. When La Salle came over and claimed Louisiana for the -- province of Louisiana for France, he claimed all the -- the seas and the bays and (Inaudible) and whatnot and the ports south of the -- of the River Mississippi. He must have sailed in this area around here and determined the nature of these islands here. And by the same token in 1699, when Iberville came over and settled here at Biloxi in 1699, he also ought to find (Inaudible) on Dolphin Island, which is over in -- another sand island over here in off the coast of Alabama. He stayed there for 23 years before moving on to the -- what is now about the area of New Orleans, City of New Orleans. Therefore, he must have known precisely of where these islands -- what can -- what type of islands they were. Furthermore, when King George issued his Proclamation of 1763 on which we tie our six leagues boundary to. When he got this land in obsession, he divided into the provinces of East and West Florida. This part of Mississippi here below the 31st parallel, is a part of what was West Florida. He described West Florida in his proclamation as south of Mississippi territory, which was in 31st parallel, east of Mississippi River and west of the Perdido. Therefore, this area, all in here, was in that -- that area and he established this line that six leagues from shore. He must have known himself what the nature of the islands were. I can find no way at all to tell now where precisely the islands were in those days, back in the old days of King George and so forth. There's no way out to tell where they are. And we must, I think, concede that island shift and move and certainly if a week or a year after King George occupied the area and divided this -- this two provinces of East and West Florida here, he must have -- he must have realized that if an island appeared further out in this -- if this was a chain existing then, that surely he would have reached out beyond that and got in the island beyond there. And by the same token, I believe, as what the United States in the Enabling Act set the boundary of six leagues from shore. If an island had appeared, most assured, they would have claimed that island out there as a part of the United States, because it would then be in -- within the six leagues boundary line from the Gulf -- from the shoreline. This King George's proclamation of 1763 came on down from that time after dividing the two provinces of East and West Florida. West Florida then was seated all the way down the line just as West Florida. The boundary line was established and through the whole chain of conveyance, we -- it came down to us as West Florida under the Louisiana Purchase. If the Court please, there's one thing I'd like to close with is the Federal Government position in this case that national policy has already been started before the defendant States came into the Union. And that limited the boundary three miles from coast and a state boundary on the Submerged Lands Act on this is limited by the national boundaries. The question I have is this. It seems that by language and by that attitude that the Federal Government says that the Government takes the position that by passing this Submerged Lands Act by Congress and by the President's approval of that act by Congress, then that it would turn in chief, this was April's fool joke played in May on the Gulf coast States. You've got to give some meaning to the three-league provision in the Submerged Lands Act. We don't believe we can challenge the sincerity of a good faith of Congress and the President in putting that proviso in our Submerged Lands Act. It must be given some meaning by this Court. It means something, else why did they put it in there. Let's go to our rule of the statutory construction as outlined here in the joint brief of the States on page 37. We cited this Court an ex parte Public National Bank of New York, it says, “No rule to statutory construction has been more definitely stated or more often repeated than the cardinal rule that significance and effect, shall, if possible, be accorded to every word.” As already -- breaking the abridgment to Section 2 was said that, “A statute off upon the whole to be construed.” That if it cannot -- if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant. They read a meaningless thing into this thing of this -- of the three-league boundary, three provisions set by the Submerged Lands Act. And if we had no form about this, there'd be no foreign boundary every established by any act of Congress, only by prejudice. And if it's necessary to do so, I think this Court should hold that the Submerged Lands Act establishes national boundary. That is not a part of this case however. And I will quickly show that Mississippi does not claim any territorial sea or any territorial waters, we claim only submerged lands under the waters, out of the six-league boundary line. Speaker: Don't you think you're overstating the position of that when you say that the Government's position was involved reading -- making the Act meaningless? Does the Government concede that if there was an act of Congress in letting a State to the three-league boundary, then notwithstanding general and national policy with respect to three miles, the State would get that Submerged Land Act rights out to the three-mile limit or three -- three-league limit. You can't quite say that the Act becomes meaningless, it seems to me. John H. Price, Jr.: If Your Honor please, as matter of national policy talks about in foreign policy by the United States and his argument is, it distresses time and time and time again is, that our foreign policy was three miles, only three miles. They were -- the -- the debates were voluminous and unending almost in Congress about this Act. There were just countless, hundreds and thousands of figures in the reports about this thing at Committee hearings. The Congress knew it would expose of what our national policy was. The President, the Chief Executive Officer have known what the Secretary of State would do and certainly he can act only for the Executive. They -- if there was a national policy, they knew it absolutely. And they said if -- if it was at that time, the Act must mean that despite that fact and we say it was no national foreign policy of three miles absolutely, but if there was, they said that we're going to ignore the foreign policy if we must. We're going to give the States out to -- if they can prove their historic claim at the three leagues from -- from coast, we're going to give that much out there. And our territory was that we're going to reserve that to ourselves. But insofar as the submerged lands and not the resources therein, we're going to give that to the States. Did that answer your question, Your Honor? Speaker: Well that turns on whether you read existing at the time I was meaning the moment -- after the moment before. John H. Price, Jr.: Yes, Your Honor, as I mentioned a moment ago, I don't see how in the world you can read it that way as saying the moment after we came in the Union. Speaker: Well all I'm suggesting is that your statement is a little overstating, it seems to me in fairness to the -- John H. Price, Jr.: I don't want to overstate (Inaudible) Your Honour. Hugo L. Black: Your time is up. John H. Price, Jr.: Thank you. J. Lee Rankin: Mr. Justice Black, may it please the Court. I'd like to see if I can do a little with this boundary question of Mississippi and also treat with the problem of the Gulf and -- Hugo L. Black: I wonder now it would be a good time to any case that's probably good for these maps here, if some of them have been (Inaudible) to the argument. Those would have should we need them. J. Lee Rankin: They aren't our maps but -- Hugo L. Black: Well who (Inaudible) J. Lee Rankin: Sure I can. Hugo L. Black: -- can you make that make it out. Charles E. Whittaker: (Inaudible) J. Lee Rankin: If we take this description of the boundary that appears on page 327 of the Government's brief, boundary of Mississippi, it starts out with, “The State shall consist of all the territories included within the following boundaries.” So as I read that, that would be all the various kinds of property to maritime or land or otherwise within this definition. And if -- if counsel (Inaudible) turned up to here and go on down and then as -- as I read it, it comes to the Gulf of Mexico. Potter Stewart: You're talking about the Enabling Act? J. Lee Rankin: Yes. On page 327. Potter Stewart: Thank you. J. Lee Rankin: Then it says -- thence west -- westwardly and that would be in United States that would be right along here until it gets to the point that Mr. Justice Black called (Inaudible) over on this end. Now, if you read it as Mississippi is suggesting that you go on down for six leagues because of the language including all islands within the six leagues of the shore, there's no sense to the proposition of referring to the islands at all, because you've already -- already got them there. Here it says all territories. Territory by definition, as all of the experts includes not only land, but everything else within the area described so far as boundaries of States are concerned. If you run on down here for six leagues and then come over, you really got to go north a little bit to get back to where Mr. Justice Black referred to that (Inaudible) do that somehow, to get over here and he's got the islands all within it, without ever referring to. You don't refer to any of that other States, you don't refer to any of the rivers, inland waters and so forth, that are involved in the territory when you're describing it that way. So that the only way we think that you can read it, is that you go westwardly as it says along the Gulf. And then to be sure you pick up the islands, you say including all islands within six leagues of the shore. You'll notice the word, “shore” is used in this particular Enabling Act and it's again used in the Alabama Act instead of coast as was used in the Louisiana Act. Now, we'll get down to what shore and coast means. In the case of Louisiana against Mississippi, this Court held that when Congress said in the Enabling Act for Louisiana that it was coast, but it meant shore. And I'll try to prove that to you on the map. Here is what the Court referred to as St. Bernard Peninsula which we would call and which the Court did refer to as shore. And we started to measure from that point in and instead of treating it as coast which was run out -- I think it's a brief by all parties here in the States, as was the United States that it run out the islands. Hugo L. Black: Where did the word -- the word coast appear? J. Lee Rankin: It appeared in the Enabling Act of Louisiana. Hugo L. Black: Of Louisiana, not Mississippi? J. Lee Rankin: Yes. Not Mississippi. I was trying to make that -- Hugo L. Black: Yes. J. Lee Rankin: -- distinction between the two. Enabling Act of -- of Louisiana is on page 224. Now, we think it would be very strange for the United States to admit these States and as one keep in mind, the order in which they were admitted, Louisiana first in 1812, and then Mississippi as I recall in 1817 and Alabama in 1819. And each one closely together, but to admit Louisiana first and give it only three leagues and then give the other six leagues, if there was any such intention to do that kind of thing. But if they -- they did it with regard to the islands that there might be there, that's a common thing for countries to do, because you wouldn't want some other nation to come out and take an island that is right at the mouth of one of your chief water sources, navigational importance, navigational streams and be able to affect your commerce or be a threat to your commerce. So we think that the only basis we agreed that the only place where that six leagues could have come from that we could find, was the Treaty in regard to Florida which is -- which referred to the islands within six leagues. Speaker: Which is the State that -- that description is it applicable to six leagues? J. Lee Rankin: The six leagues in both Mississippi and Alabama. They both claim it. Speaker: Well, you're saying six? J. Lee Rankin: And it's described in -- Speaker: Yes. J. Lee Rankin: -- in both of the Enabling Act. Now, in regard to the question of shore and coast, the shoreline would follow the various sinuosity every coast. And there are thousands of them, maybe I think, we all agree on this Gulf coast along here and it would go on inside of bays and all the other points all along right there. I am rather loosely pointing to it, but that's the way the shoreline would go. The coastline would follow along the islands that they recognize as having inland waters inside them and so we are in agreement, I think, that the islands, so far as the coasts is concerned, would be the point of measurement under the Act and we come down here and follow along wherever there was inland waters. And then you measure it from there, instead of going back to those sinuosities. Now, where the Gulf is, when they described and use Enabling Act that you come down to the Gulf, we think, it could be wrong that it means like you would say you'd get -- come down to Pacific Ocean, it's where the sea, the salt sea comes up in a medium-low water against the coast. Charles E. Whittaker: And that's the (Inaudible). J. Lee Rankin: That's right. And that has to be what they're talking about at the Gulf. Now when they talk the mouth of the stream at the sea, we think that's where that water from the stream comes against the sea and is the mouth of that stream as so recognized. If anybody was going to say, “It should be three miles up from that point”, we think they'd say it. Now, there is some claim that La Salle claimed all the area out to the 27th parallel here for Louisiana, when he came to that -- that area and issued his proclamation. He said however that he claimed all from the source of the -- what is known as the Ohio river and all from the source of the culvert also known as the Mississippi River to the mouth and then he said to the 27th parallel. And he then went back a ways up from the mouth of the river to the first point that he could find that he could plant his memorial and he put it there claiming it for France. Now, we think that it's just another evidence as we pointed out in a number of times of the fact that La Salle just made mistakes about longitude and latitude various times. And that there was no purpose to claim an area way out like some 127 miles into the Gulf that he hadn't explored and didn't show any interest in from the rest of his action and proclamation. Now, yesterday, I made the claim that in construing a grant of this kind that it should be strictly construed in favor of the United States and against the grantee. And I cited the United States against the Union Pacific Railroad Company and I was asked by the Court if, “Do you ever do that about the States? Was that applied to the States?” I found one case in regard to it and that's 190 U.S., United States against Michigan. This isn't in our brief. William O. Douglas: United States versus Michigan? J. Lee Rankin: Yes. 190 U.S. William O. Douglas: 190. J. Lee Rankin: 190. 379. Now, that applies it expressly to a State as a principle of law. I do want to call attention to the fact that it's -- it speaks of it as public grants -- grants for public purposes. I don't see any distinction. I still seriously urge upon this Court -- Felix Frankfurter: What is the controversy about it? J. Lee Rankin: It was a question of (Voice Overlap) -- Felix Frankfurter: Did the government -- what was giving permission then? J. Lee Rankin: It was certain. There were certain grants and there was a question of whether they'll continue to use them for the purposes that the Government had limited them to. And the extent -- Felix Frankfurter: But to the Railroad and whatnot. J. Lee Rankin: It's that kind of a thing. And I still contend that while this case might not -- squarely, the Court did use it as a rule of law, it applied to States as well. It definitely stated it that way. And I contend on behalf of the Government that where you are considering properties of -- of substantial rights as these are that there should be applied a rule of law that would, in carrying out the intend of Congress, if there's any doubt, it should be applied to protect all the people of United States as against a limited number involved in the States. Now, we have another case that is not in our brief that I'd like to call the Court's attention to. I referred to it the first day, but I didn't give you the citation. And that is the case of The Anna. Hugo L. Black: D I -- J. Lee Rankin: The -- The Anna, A-N-N-A. It's a ship. Hugo L. Black: It's called The Anna. J. Lee Rankin: Yes. And it's in Volume 5 of Robinsons Admiralty Reports at page 373. Now, this is the case that I referred to and I think it's a great weight here, because it involves this very area that was decided in 1805 by Sir William Scott, later known as Lord Stowell. Hugo L. Black: What year? J. Lee Rankin: 1805. And this was right around -- this was before, you see, Louisiana or Mississippi or Alabama and of course, long time before Texas and Florida were admitted into the Union. In the case, counsel referred to this statute of the United States. And they say the three-league, the three-mile claim -- a marine league is clearly made by the United States by the statute. In fact they say the laws of the United States on this question are laid down with the exact precision and direct, “That their District Court should take cognizance of complaints by whomsoever instituted, in cases of captures made within the waters of the United States or within -- within a marine league of the coast and shore thereof.” Then this involved the privateer if you will recall and it was a question of whether he was with -- it was within three miles of our shores right at the mouth of the Mississippi River at the time it was taken. And if it was, then it would not -- it would have to be released. And Sir William Scott held that this was territory of the United States when it was taken within three miles that this ship was within the territory of the United States and therefore, under the law, it had to be released because it was a property that was under the control and direction -- protection of the United States and its territory. Then the King's advocate says “This is a claim of territory, alleged in the most solemn form by the directions of the Ambassador of the United States.” You see it's the position that the Ambassador has presented to the Government and is being presented by the King's advocate by that direction, the most solemn form, resident in this country. And then the Court goes on to deciding the question. When the ship was brought into this country, a claim was given of a great nature, alleging a violation of the territory of the United States of America. This great leading fact -- fact has very properly been made a matter of much discussion and charts have been made before the Court to show the place of capture, though with different representations from the adverse parties. I apologize for my mistakes the times it got the essence in the old style and it's a little difficult too. The capture was made it seems, at the mouth of the river Mississippi. And as it is contended in the claim within the boundaries of the United States, this is 1805, “We all know that the rule of law in this subject is “terrae dominium finitur, ubi finitur armorum vis” and since the introduction of firearms, that distance has usually been recognized to be about three miles from the shore. But it so happens in this case, that a question arises as to what is to be deemed the shore.” Now you'll notice that he says, “We all know what the law is” that that distance that you can control by your arms which is recognize to be canon shot is the territory that the country has. Felix Frankfurter: Less than that -- nobody thought it was less than that, that is just you cleared. J. Lee Rankin: I don't recall of any the instance left. Felix Frankfurter: Was this -- this could be a question of a price of a vessel of sea within the three-mile limit? J. Lee Rankin: Yes, Mr. Justice. And that -- Felix Frankfurter: Whether the claim of the -- of the seizure -- of the seizure. J. Lee Rankin: The seizure claimed that it was not within the three-mile limit. Felix Frankfurter: That is -- as a geographically, it was beyond the three-mile, is that it? J. Lee Rankin: No, it was geographically found by the Court to have been seized within. Felix Frankfurter: Yes. J. Lee Rankin: But the -- there was no contention that the law was different or that the United States territory didn't extend for the three miles. Felix Frankfurter: No. J. Lee Rankin: The only issue was whether or not the actual seizure was within that territorial outside. And that what I am trying to demonstrate is that back in 1805, the court of another country examined our position as to what our territory was and found it to be that because of the representations of the Government and from his own independent examination and concluded and applied it. Felix Frankfurter: I am suggesting that nobody thought that we had lesser right and -- within the three-mile limit. J. Lee Rankin: Well -- but the -- the issue was if it was beyond the three-mile and that's what they claimed, just one -- a foot or so, they would have been outside. That was what they were trying to decide. William O. Douglas: What did this case decide? J. Lee Rankin: It decided that they had to give it up, that it was found to be within the three miles and therefore taken within the territory of the United States which was found to be three miles outside or from the coast. And therefore, it couldn't properly be taken as privateer. That was the holding. And the Court didn't find that they had three miles -- the United States had three miles and one foot. They found, as a matter of law -- Felix Frankfurter: No. But if -- if it was within the three miles, then the seizure was -- J. Lee Rankin: Invalid. Felix Frankfurter: -- was invalid. J. Lee Rankin: Yes. Felix Frankfurter: Lord Stowell wouldn't recognize it and nobody else would. J. Lee Rankin: Yes. But he also found -- had to, because if there had been no -- if our boundary or territory had been six miles or three leagues, he would have no problem whatsoever, because it was -- Felix Frankfurter: It was English ship? J. Lee Rankin: No. It was a ship that belonged to a New Orleans man. Felix Frankfurter: And -- and the Britisher seized it and the question, whether he could keep it. J. Lee Rankin: That's right. And that had a very bad -- Felix Frankfurter: We don't know what Lord Stowell would have said if it has been found outside of three miles. He was rather -- he was rather nationalistic in his interpretation as far as law, as we all know. J. Lee Rankin: Well, Mr. Justice, I think when you examine the case, you'll find that the issue was whether it was out three miles and a half and so it -- Felix Frankfurter: If they found it wasn't so the legal question doesn't arise. J. Lee Rankin: Well he wouldn't have -- he would have said that it's -- if he thought -- Felix Frankfurter: What you're saying is, he would have said, “I don't care, whether three miles or five.” J. Lee Rankin: if -- if the boundary was actually three leagues, he would have said, well what other. It's -- the evidence are all clear. There's no issue here. It was still within it. But he had to find out whether it was really three miles within three miles or was out three and a half. And that's what the -- the issue boil down to. And I think the case is very important for its recognition of the claim of the United States, a claim made by our Government and determination by a foreign court right at the time that seems crucial on this matter in 1805. Speaker: With respect to the territorial (Inaudible). J. Lee Rankin: Yes. It deals with -- you see that the argument's been made in this case. Well, of course, three miles applies to other places. The United States, the policy is so claiming that, but it doesn't apply to it -- to the Gulf. That's special. And here's the case, that isn't our Government isn't our courts or anything; it's one of the great judges of Admiralty of Britain that examines the question and finds right at the time before any of these States that we have that policy that it controls, applies it to a New -- New Orleans ship in actual life. Speaker: As a matter of construction, you may (Inaudible) J. Lee Rankin: No I didn't. I concede that. Hugo L. Black: Mr. Madison. Gordon Madison: Mr. Justice Black, may it please the Court. Alabama has two pleadings you might say which have been filed in the Court, which do not pertain to the other States and before I go into the argument proper, I believe it's well to call the Court's attention to what those are. William O. Douglas: Is this your brief as to the (Inaudible)? Gordon Madison: Yes sir. We were in a measure, invited by the Court after Texas filed a pertinent proceeding of the brief here in which it asked the Court not to bother Texas in the Louisiana case if it decided it to come in and intervene. Alabama didn't have any oral aperture at that time and doesn't have any now. And if we had to wait until the United States sued us in order to determine what our rights were at that, I don't know that we would have ever known, because there's no assurance that we never had oil, although we do have a number of oil wells which have since been discovered in the Baldwin and Mobile County areas. That took the form of intervention by the State of Alabama with the supporting brief. After that, the United States amended by making all of the defendant States parties respondent. To that, Alabama filed a short answer and the brevity of these things in the -- the strength of Alabama's claim rather than the lack of it. It's about two or three pages. We made that a cross bill. In my ordinary practice, if the United States had not been involved, I would most certainly have had a cross bill. And it seemed to me that the Submerged Lands Act impliedly, if not expressly, authorized the State to file something to determine what they had. But in any event, the Government concedes that Alabama can have just as much as anybody else under his answer without the cross bill, if it can prove it. So rather inject that issue into this case for whether we can sue the United States or not, based on the Government's concession to us on that point, we do not insist on the cross bill. Next thing we filed was a brief for the State of Alabama in our position to the Government's motion for judgment. And I'd like to emphasize that that is what is pending here today. We haven't tried this case. We haven't introduced any evidence. We haven't done anything, except appear here in response to a motion which has been filed by the United States asking for a judgment. Subsequent to that, there has been some changes in our administration, former Attorney General has become Governor. And one of our former Assistant Attorney General has become Attorney General. There are difference in the Governor's legal advisers and the head of the Conservation Department and they wanted to be in some sort of way, so I figured out that I would make what I call a written memorial and I want to say that memorial can refer to a tombstone of a graveyard, and I'm not submitting in that sense that Alabama case is going to be bad, but it's a written memorial of the oral argument of necessity. Of -- of course, the Court knows that I didn't intend to read it. Hugo L. Black: The memorial, it has to do with (Inaudible). Gordon Madison: It does, yes sir. And some of these foreign policy claims which I thought had been settled by the question from the Court to those preceding me, but I find it every time this distinguished gentleman gets up, it pops up again. So, I -- I don't think I'll even attempt to answer that except in this way. I can see the gentleman and all the Senate and House now. And by the way, at this point, I want to say that my two distinguished Senators were in full opposition of the Submerged Lands Act. We're fighting at every step. If they had been for it, the record would have been full of Alabama's claim just like you find for Texas and for Florida. Now, they went out there as I believe and said we just gave right to Texas and Florida into this thing, and we'll pass. But we'll get us up a formula or a criteria and I understand that they send it over to the Justice Department to get help on framing that language. So that we will make it almost foolproof as far as Texas and Florida are concerned, we're writing here prior to take care of Texas or it approved by Congress, subsequently approved by Congress to take care of Florida when it would have made it later as a rebel state and any generality, we let everybody else come in that can prove a boundary to take care of the (Inaudible). But when they got that, they got it fast. Well I submit that the Congress did not place, it did not place in Alabama's hand or anybody else's hand, a yardstick which struck the one foot the moment we call all to it to measure our rights. And the one foot had got -- it's comparable to the three geographical marks. As I understand the Government's contention, that although we'll give him a right to prove it, we can. Now, I say it that although the Act may not be meaningless, Mr. Justice Harlan, in that sense, if his contention is correct that we cannot make proof even though we've got proof, we can make it because of some so-called three-mile rule, and then there are clear agreements. The Congress has done a futile thing. Now outside of that, he says you're bound. Speaker: (Inaudible) Government's reply brief when it took that position (Inaudible) Alabama against Texas. Gordon Madison: I am glad you brought that up, sir. And if we -- if we're going to -- if we're going to talk about that a little bit, I believe you'll find although he had his tongue in his cheek that the distinguished Solicitor General took the side that Congress can give one state more than it can give us. Fair to the brief is devoted to it, so both of us better forget that.[Laughter] Felix Frankfurter: Do you think res judicata does not apply to Thompson's brief? Gordon Madison: Well, I beg your pardon? Felix Frankfurter: Do you think res judicata does not apply to Thompson's brief or argument. Gordon Madison: Well, you mean, Your Honor, it is a reply in kind?[Laughter] Felix Frankfurter: I mean Thompson take whatever position he sees desirable for the case in hand. That's what I mean. Gordon Madison: Now, I don't believe this Court is going to hold that in the statement, but made by our Attorney General at that time, because their position changed depending on which side political offenses might be on. Can trigger by Alabama's boundaries or -- or bind them, we couldn't get in, in Court with that case. And we used practically the same argument that Government is using now. Now, if you all take the Government's argument now as we get in Court that takes us out, at least that's unfortunate.[Laughter] Speaker: As of this part of (Inaudible). Gordon Madison: Now, you -- you'll notice in this -- and we'll try to get down to them to my case now. You'll notice in its memorandum which are filed here, the memorial, I refer to various wards. I don't want to take that up except to say that the idea in referring to the Court's expression in Johnson versus M'Intosh in 8 Wheat. That's a contest between the cabinets over a sale and matters respecting in the territory on the Northern coast of the Gulf of Mexico were fierce and bloody. And then the war, it came with -- with England and Spain and France, being fought them. And after that, I think about 1780, Spain fought England and got West Florida back, all of Florida for that matter. Then our historians said that Spain then control the whole Gulf coast. And after that, we show the -- the War of 1812. We show the proclamation of President Madison who ordered General Raperson (ph) to take Mobile -- gun boats were off Mobile Bay then. The Spaniards were still in possession. During that War of 1812, they've allowed the Florida forced to be used by the British, so Jackson when he finished it then, he went on down and stands (Inaudible) took that and he came on back and went to New Orleans and they fought the battle in New Orleans. In the meantime, British made attacked on one of our ports out there, (Inaudible). But even as late as 1815, when they were retreating from the (Inaudible) Mississippi, they attacked at the port again and captured it. When I enumerate those statement, I am not having a low for it. I enumerate them because it seems to me and on the unsettled condition at that period, during those periods, with no declared boundary from the national standpoint in the Gulf of Mexico that those different wars showed that each nation demanded for its own security, a greater wit than three miles. Now, the next thing I'll show is the dispute with Spain. I realize this Court says he got -- that he got West Florida, that portion which is pertinent to Alabama and Mississippi through the Louisiana Purchase, but it did so because that Congress had determined that and you're bound by -- looked like he'd be bound with some Congress done by the Submerged Lands Act too. But anyhow, I don't know whether if you have called upon to decide that straight question, you say is enough. Again, Monroe and he went through a pass in 1804 and he -- he directed the communication of (Inaudible) under the French Minister of Exterior Relations setting forth our claim on Louisiana Purchase and he replied in decided terms so our case is there. The case of Foster versus Neilson, decided terms that with all the negotiations between France and Spain that no part of the Florida neither West or East, was conveyed or granted, or by the cession to France by Spain. And that gave rise to dispute. Now, we allowed the Spanish to stay in possession, it was regarded under the Louisiana fort. And we actually didn't get possession of that territory in the sense that we could have physical possession of it, until our set battle of New Orleans. Now, I -- I don't have any law for this either, it was the kind of rule of commerce stamped in either way. I don't know hope too much within natural law. What can you project into the area of that kind? The foreign policy of three miles when it's subject to dispute and which President Madison said when he sees it that he's going to hold it subject to friendly or just settlement. While in this to Great Britain, he wrote to why did you incorporate that territory when you said you're going to hold it, subject to friendly settlement dispute. And it was a pretty difficult question to answer. In fact, I didn't find the answer from United States Government to it. Now, getting down -- too much for those preliminary things, now getting down to Alabama's description which I think is the crux of this case as far as we are concerned. On page 3 -- now this little yellow brief, is our description. He said that the States here consist of all the territory included within the foreign boundaries and then gets down to the part that we run due south to the Gulf of Mexico, thence eastwardly, including all islands within six leagues of the shore to the Perdido River. Now, this is the (Inaudible). This is the Alabama-Mississippi line, over here. And over here is this Florida-Alabama line and here is your Perdido River. From this point on, the coast over here, running from (Inaudible) over here is the Perdido River, the coast and the shore are the same. Over here, as Mr. Justice Stewart said, what place you get your feet wet is right up here. Now, we say that's the shore. We have two lines drawn, I'll explain to you where they go. We got one that shows six leagues from shore running parallel and we got one that shows six leagues from coast running parallel. Now, the British description when King of Britain devised it and described it the first time, he described an area, six leagues from coast and said it run from the River Apalachicola in Florida to Lake Pontchartrain in Louisiana, so we are a segment of that description. And our -- our State at this point when he asked about proof, if that thought of our chain of title, I don't know whether we need to go back, and we don't unless the Court takes care of it, if you do, I think I need to find out what they were talking about waters along that coast during 1763, as well as what might be there when we admitted to Union, because we are a segment of that description. Now, the distance from the shore, the Petit Bois Islands and the district from the shore, the Dolphin Island which is referred the distance that you can get from shore to an island is less than three leagues. It's 2.86 in one case and 2.87 in the other. You will notice that all of these phase that we've had here, as I understand the rule, are less than six miles and that rule is, you measure from headland to headland, so we come around here for our shoreline, come on down and in Gulf coast here with shoreline and gone over to the mouth of the Perdido River. Now, for our -- Potter Stewart: That's one of your claims (Inaudible). Gordon Madison: (Inaudible) what I gather that the -- Potter Stewart: That's Mobile Bay, isn't it, that -- that big body of water -- Gordon Madison: That's right. Potter Stewart: -- about in the center of the -- Gordon Madison: Now we will run way up in Mobile Bay into our shoreline, because of the rule, none of our bays are -- are six -- six miles, over six miles -- Potter Stewart: So you draw it from headland to headland, don't you? Gordon Madison: Right. Potter Stewart: How -- how wide is the -- is the whole water, Gulf water of Alabama there. It's tantamount too much, doesn't it, in mileage compared to the other Gulf states. Gordon Madison: Well, We hadn't -- but -- but I don't believe I think what did you -- approximately 80 miles, but it doesn't come here. Potter Stewart: A big part, which is Mobile Bay? Gordon Madison: That's correct. Now, here's what I'd take the Government has conceded. Now, I think they had conceded. I don't think they were doing Alabama a favor when they conceded. I think it was because this Court has decided beyond any question that Mississippi found with inland water and everything under it, pass to the -- in the Mississippi case which was considered. We're talking about the same Mississippi south, passed in Mississippi on this description, and therefore, it was inland water. And I think what he means to concede is that we're come here to the coast -- I think this is the coast line he talked about. We're on -- right on here -- right on this Dolphin Island here, come on out here around these islands. This is a pelican and these are not little pelicans in here, they are the West sand, and (Inaudible) are going back and going around. I think that's what he concedes. Anything inshore of that, he concedes the wrong. Charles E. Whittaker: Do you understand (Inaudible)? Gordon Madison: Yes, sir. Not only that. I think he concedes that we asked you three geographical miles out from that line and he concedes to be the coastline. Now, he can't get a coastline back at the Mobile Bay. He can get one off inshore of Gulf and islands throughout taking the -- the smallest coastline that you can get. In other words, I'm giving advantage to the Government. I am not taking a line where I get somewhere. I am just going here until you get water on the other side of these islands. Now, let's get to our description. He says it wouldn't been in a use of views, including all islands within six leagues of the shore. Well, maybe not. I'd say that too. But the point he overlooks is by using that this Court has got to give some meaning to it. If without using, we have got all the islands, then by using it what does it mean? If all of the islands, and this is a further point away from shore, can be embraced within three leagues, then what does the extra three leagues mean when they say “In allowance within six leagues of the shore.” What Court will do with more than three leagues? Potter Stewart: I could've been wrong of disappearing islands. It is going to show up -- Gordon Madison: Well, I've got where would this be and they're right here. And I've looked for hard places, shallow places under the water and I can't find it anymore. Now, I don't have the Enabling Act in a material point set out, but there's another provision in it that I think is material. By running that line due south here, it -- it imprinted on three Counties of Mississippi, Jackson, Greene and Wayne. And they provided that if it did that, surveyor should finally did -- did encroach on Mississippi, then they say the line is to run in a direct line, that was one south, from a northwest corner of Washington County to a point, to a point where? To a point on the Gulf of Mexico, 10 miles east to the mouth of the river Pascagoula. Well, on full Mississippi Sound, as I pointed out, would call Mississippi Sound, which this Court said the first map they had was in 1866. It was known as Pascagoula Bay. It has never been known to the Gulf of Mexico. So, when you go to a point on the Gulf of Mexico, I say that means you go beyond the Gulf shore where the Government said, we stop. On the Gulf shore, it doesn't mean on the Gulf of Mexico to me. Well, you ask the question where is that point there. Where is that point that move the line? Where is that point on the Gulf of Mexico? I'd say you find it by going six leagues there, to me. And when you do, you got a lot of boundary beyond your farthest island. And I have one other point to make. In this Mississippi versus Louisiana case, 201 U.S., there are a lot of maps filed in that case. They were not disputing over the eastern boundary. They're disputing something about the -- the right to oyster bed move on a western part. But the lawyer to that day without any oral to becloud that thing, and anything like that, they sat down to consider where Mississippi started westwardly, the point. And we start eastwardly from the same point. Now, Louisiana said and later drew a map showing it, compiled from the maps which it introduced in this Court in that case, that Mississippi started westwardly from a point which is 18 miles south of these coastlines. Well now, know you can't see this but I'm going to leave it down. That line was put on there and if it can enter by any instruction by the nation's theory that were drawn on that by the culmination of the map 189 1991 preferred by the U.S. Coast and Geodetic Survey, the boundary line between Louisiana and Mississippi and duplication of Exhibit E in the case between Louisiana and Mississippi and known as the Number 11 original October term 1905. And they showed that line out there where we claim it to be. There (Inaudible) you're talking about, that Horn Island that you'll run into when you leave these islands here. Now, I say, you didn't have an (Inaudible), you just -- you're talking about something there. And the lawyers on that day and I only had good one, there's where they drew that line, I -- I can't get that up to you now. What -- we -- it's being left with the march -- marshall whether you can see it, if you want to see. And this particular map here -- Hugo L. Black: Who made the map Mr. Madison? Gordon Madison: This map? Hugo L. Black: The one here. Gordon Madison: It's (Inaudible). Hugo L. Black: Was it made in 1905? Gordon Madison: It's made -- it has made the -- two excerpts from the minutes of the meeting of the Louisiana Boundary Commission held in New Orleans in March 26, 1901. So, I -- I imagine they prepared it. Now, I have -- this is -- there are three or four extra copies of it. I can send of here (Inaudible) for Mr. Justice to look at. They will be left down to the marshall for anybody's consideration. Now, I brought along because the part Mr. Justice Whittaker was talking about the Mississippi Sound is in that Gulf of Mexico. Well, I -- that -- I don't like that. I mean that hurts my argument.[Laughter] I want that studies much broad, that that inland water has been so flat, and I have got map here to show this was called Pascagoula Bay in 1778, it was called Pascagoula Bay in 1823, and it was called Pascagoula Bay later. And then this Court said the first map submitted to it, when Louisiana versus Mississippi was tried through which Mississippi Sound was called out in 1866. Now, I submit -- well I'd just say it's simple. The equities to this case called to give here by the same thing as they -- I don't see the reason for one State to have three marine leagues submerged lands and many others not to. Sir? Charles E. Whittaker: (Inaudible) Gordon Madison: Well, I have found out, Your Honor, that (Inaudible) Supreme Court and we'll get just exactly what you are saying. There won't be an appeal from anyway. And I think I've given you a reasonable bases here from which to give Alabama and applies to Mississippi just well three marine leagues from coast. Now, I want to say in conclusion that -- and this has got nothing to do with it either. Well, it -- just don't make Alabama the neglected child and the happy Gulf coast saddened. Thank you.[Laughter] J. Lee Rankin: Mr. Justice Black and may it please the Court. I'd just like to say one word about the argument of Alabama and that is -- Hugo L. Black: (Inaudible) J. Lee Rankin: No, about their -- their case is what I mean.[Laughs] And I don't, of course, think that it's enough to just treat them all alike. I think that this Court has the duty and we'll exercise it to find out what the law is that is applicable and we'll try to apply it in -- as it sees fit. I do think that there's a little more problem about this question of Mississippi Sound and the Pascagoula River under the Enabling Act than the counsel indicated, because when he -- we agree that the statute did provide for an adjustment that the surveyors found that this made an encroachment on the counties. And it had such language. But it seemed to me that there was a disregard of a part of the language in trying to apply it, that it's set out on the bottom of page 329 of the Government's brief. And then in -- in ordering it, as the surveyors were directed to do, so ordered as to run in a direct line from the northwest corner of Washington County to a point on the Gulf of Mexico. On that appeal what his argument was directed to just that far, whether this Mississippi Sound or Pasacula -- Pascagoula at that time was the same as Mississippi Sound, but it seems to me disregards the additional language that 10 miles east to the mouth of the river Pascagoula. Now, the mouth of the river Pascagoula doesn't come out to those islands at the -- that he refers to at the end of Mississippi Sound. The Government concedes that that is inland waters, the Court so held in Louisiana against Mississippi. And we concede that the problem in their case is taking that as the coast and giving them three miles or three leagues. But as far as their Enabling Act is concerned, if they're going to talk about that they're really entitled to six leagues or something like and how you measure that. It seems to us that this island, this language deals with the point that they come to the Gulf and whether they -- whether Congress improperly called it the Gulf of Mexico, when it was going into Mississippi Sound, the inland waters, or not, they still did and you can't find that's -- that point as being outside those islands if you also come to the question of the mouth of the river. You have to deal with it as a point inside that particular Gulf. So, we think that their claim is not supported anymore than any other as to the six leagues that that language was used to be sure to get these islands within the United States that we had a reason of the King George Treaty and it just carried over and there could be no purpose really in using that language, if you're going to say it this goes right down six leagues in all the territories within it, because you do get. Now, if you say that the line should be measured and come down to the Gulf and then eastwardly to the point, then you have to put those islands in, in order to get them in -- within the description. And we think that's what was intended by Congress. Generally, what that language is recognized as and we think that's this case. Potter Stewart: Mr. Solicitor General, I am a little mixed up from my history. Was Alabama acquired through Louisiana Purchase or was it acquired by cession from Spain? J. Lee Rankin: This Court held that under -- in the case of Foster against Nielson, it was acquired by Purchase. Potter Stewart: By the Louisiana Purchase. J. Lee Rankin: Yes. And if you recall there was some -- the position of the Government was when it was acquired by the Purchase and the Court said it couldn't look back at that, it was a political decision that was controlling upon the Court and that it must follow. It couldn't make up any other political position. Potter Stewart: So it didn't come to that as part of West Florida? J. Lee Rankin: I don't see -- I certainly wouldn't say, it's contrary to the Court's decision. Potter Stewart: It did. J. Lee Rankin: I thought this Court held that's the law for me. Hugo L. Black: That the law was in effect. J. Lee Rankin: It's [Laughter attempt] I think it is. I think whenever this Court decides, that is -- Hugo L. Black: I'm talking about the West Florida decision. J. Lee Rankin: I think it's conclusive. Hugo L. Black: There it has done a part of (Inaudible)? J. Lee Rankin: The -- the Court said in the decision that if -- it didn't indicate that it would come to a different conclusion, as I recall the case, it said, “Whether or not, it would arrive at the same conclusion as the Government, if it was examining originally. It wasn't open to it to examine originally.” And it was bound by the decisions by the political branch of the Government. That's Foster against Neilson. Hugo L. Black: Mr. Ervin. Richard W. Ervin: Mr. Justice Black, may it please the Court. Florida claims under the Submerged Lands Act are twofold, it claims that boundary exceeding the three-mile limit at the time the State entered, and a somewhat constitutional boundary approved by Congress prior to the Act but subsequent to State (Inaudible). I will argue the first claim, Senator Holland will argue the second. Well, we want to make a preliminary statement about the subject matter prior to getting into the basis of our claims. The Truman Proclamation of 1945 declared that “Natural resources beneath the high seas contiguous to the coast of the United States within the Continental Shelf appertain to the United States and was subject to its control.” This Court in the subsequent titled land cases, California, Louisiana and Texas held itself bound by the determinations of the political branches of the Government and international relations and recognized a three-mile national boundary which had been asserted in the nation's diplomatic correspondence. These decisions gave efficacy to the Truman Proclamation, by also holding, the United States had paramount rights in offshore resources to the exclusion of the coastal states that dominion ownership to the extent of such paramount rights followed inferior right of regulation in territorial waters. But the Court also said that Congress could take further action regarding the subject matter and pointed to the clause in the United States Constitution authorizing Congress to dispose the property rights of the nation without limitation. The Court also said in the California case that it could not go contrary to an act of Congress in this area of national power. Following the suggestion of the Court, Congress enacted Submerged Lands Act and Outer Continental Shelf Act. These Acts carefully delineated between dominion and imperium reserving in the United States a navigational servitude in the high seas, while dividing the natural resources of subsoil and seabed of the Continental Shelf between the States and the United States. The Submerged Lands Act gave the States in Atlantic and Pacific, a three-mile limit granted offshore resources, but treated the States bordering the Gulf of Mexico differently because of historical and special considerations. Each Gulf State was given the natural resources beyond the three-mile limit in the Gulf to a total extent of three leagues, if its constitutional laws prior to and after statement contain their boundary out to three leagues or beyond, or that Congress had approved for a State, such an extended boundary prior to the passage of the Submerged Lands Act. Such extended boundaries are referred to as historic boundaries. We, therefore, contend the Submerged Lands Act meant that if the Gulf States Enabling Act original constitution or Admission Act, which operated to affect this transition from a territory to statehood, either expressly or impliedly provided for a three-league or greater boundary, that entitled it to the grant of natural resources throughout three leagues. Texas being an independent republic had a constitutional law prior to statehood different form a territory, which nevertheless, contained a three-league boundary qualifying it to receive the grant. However, the Solicitor General says that the political branches of the Government in asserting policy and foreign affairs has in effect, either invalidated or shortly historic boundaries of States and navigable waters in the Gulf insofar as they extended beyond the three-mile limit. He supports this decision by referring to the tide land cases of California, Louisiana and Texas. We do not believe those cases so held. It is true the Court decreed that the United States had paramount rights in all the natural resources offshore. And that the three-mile belt is in the domain of the nation as well as the ocean beyond it, but there's nothing in these cases directly dealing with the States' historic boundaries and navigable waters which were consented to by Congress and all the Constitution could not be -- could not be changed without the State -- the State's consent. We think the States' historic boundaries and navigable waters remain unchanged and they're operated for some state domestic purposes, possibly for the venue for the state police regulations of some sort and of course as a measure for submerged lands grant. These boundaries do not now or ever have impinged upon the delegated inferior powers of the nation in navigable waters. That there has been some confusion concerning the States' historic boundaries as they were laid to the national boundary as admitted. The Tentative Draft of the American Law Institute in its reinstatement of foreign relations law of the United States points out that confusion, but says, it has been resolved. It says that using historic boundaries for measuring the grants, the Submerged Lands Act appeared to put the question on a territorial basis. This led to the clarifying decision in Alabama against Texas. The States -- this decision held, “There was no limitation on the part of Congress to dispose the property of the United States construed in this manner the Tentative Draft says the act does not depend on the breadth of the territorial sea plane by the United States on the international law.” Which is to say, we submit that historic boundaries, as a measure of the grant, need not coincide with the national three-mile belt. We think the historic boundaries are valid for some purely domestic state purposes. Although, they may never have had any validity as a part of a national boundary, they still serve as the States boundaries for congressional domestic grants. We think it is immaterial to a decision of this case while they have any validity in terms of international policy. As Skiriotes against Florida, the Court said that international law is not concerned with domestic rights and duties. Section 4 of the Act rules out the Government's contention that this three-mile national boundary operate to shrink the States' historic boundary at the moment of statehood to the limit of the national boundary, because it was imposed into the Act an extraneous standard of test, not within the context of the Act, and would produce inconsistent result with planning in historic boundary, referring to a State's particular constitutional laws, which is not to be a prejudiced or questioned. While this first claim is based upon the act of Congress, of March the 3rd, 1845, admitting it to the Union, and upon this Constitution previously authorized by Congress and adopted in 1838 previously, these documents carried boundary descriptions covering a chain of title to Florida territory delineated from cessions of Great Britain to Spain and finally to the United States. Florida's brief, page 64, a proclamation by King George III of Great Britain on October the 7th, 1763, officially and historically defines the boundaries of a territory of East and West Florida. The keywords in the proclamation are that governments -- “The governments of East and West Florida were bounded by the Gulf of Mexico including all islands within six leagues of the coast.” Our contention is that these words are historically implied in Florida Statehood Constitution by a direct reference to antecedent titles and formal sovereign owners. Hugo L. Black: May I ask you one question? Richard W. Ervin: Yes sir. Hugo L. Black: (Inaudible) on which you -- Richard W. Ervin: It is it is different Justice Black in this. Our boundary is described simply by referring to the cession between Spain and the United States and refers to the Floridas, which were granted in the Treaty of Amity, Settlement, and Limits of 1819. Hugo L. Black: Well you used a language that is not -- Richard W. Ervin: Sir, we have no -- Hugo L. Black: -- described within six leagues. Richard W. Ervin: Yes sir. We used -- Hugo L. Black: That language is contained in both. Richard W. Ervin: That's -- that is -- it is similar contention. Yes, sir, on our first claim. Hugo L. Black: That you'll decide in the point in Alabama is what you go (Inaudible). Richard W. Ervin: Justice Black -- Hugo L. Black: You are just -- that is your description. Richard W. Ervin: That is our -- that is not our description. We don't tie in, in so many words in that matter. We simply to referred to the ancient -- well we referred to the treaty between Spain and the United States as our boundary. And we say that in the chain of title or the King George III's Proclamation of 1763, which referred to the islands within six league of coast in the Gulf of Mexico or the part of the provinces that were ceded. And in a subsequent treaty when Great Britain retroceded to Spain, it said all of the East and West Florida provinces and islands depended on said provinces. That's the background of our history, but we have no specific description as does Alabama. Now, here is our contention. Hugo L. Black: Where is the -- Richard W. Ervin: Sir. Hugo L. Black: Where is the Enabling Act in your brief? Richard W. Ervin: Oh that's -- it's on page 64k sir. Hugo L. Black: Page 64. Richard W. Ervin: Yes, sir. Hugo L. Black: Your reply brief? Richard W. Ervin: Florida's -- yes, sir. It -- we referred to it on page 64 in the brief itself. We don't have a -- a copy within the appendix. It says -- here's what its -- the Enabling Act says, “The State of Florida shall embrace the territories of East and West Florida, which by the Treaty of Amity, Settlement, and Limits, between the United States and Spain on the 22nd day of February, 1819 were ceded to the United States.” And that -- that is also incorporated in the Florida Constitution of 1838 preceding the act of admission. We contend that it used this keyword to describe a perimeter boundary for Florida in the Gulf, and that the Government's argument that only the islands themselves and not adjacent waters were boundaries is not (Inaudible). Now, we rest our contention not only on the same basis that Alabama and Mississippi and Louisiana have presented, but also we think there's a case that arose in New York upon which an annotation was taken and appears 81 Corpus Juris Secundum 918. This appears in Alabama's brief on page 4 where a state line is described to run so as to include all the islands and the body of water, such a description is not a direction to run it to exclude the intermediate waters. That is not the full quotation, but that's suggestive. This case -- I mean this annotation was based on the New York case of Mahler against Norwich & New York Transportation Company 35 N.Y. 352. Hugo L. Black: What page in your brief? Richard W. Ervin: Your Honor, that is not in our brief. It is found in Alabama's brief on page 4. We adopted the arguments of Alabama. And we are -- we are taking a legal position that this six leagues from coast is a perimeter boundary and it contemplates with law as determined in the New York case. It is sufficient to satisfy the rule that all of the intervening submerged lands, we will say, belong to the coastal State, in this case, to Florida. Now, in New York, there was this description that started at (Inaudible) and it ran around Long Island and several other main islands and all the waters in the Bay of New York. The Solicitor General says these were all inland waters, but if you read the case, you will find that the New York court, and I think this is important to Louisiana and Alabama and Mississippi's case. The New York stated they were the territorial waters of New York, and it appears to us, these waters fall in the special class of waters which Chancellor can't refer it to as chambers of the sea followed by distant headings. If you take a map of this group of islands between Connecticut and Long Island, of course, being one of them, you'll find that Fishers Island lies right off the State of Connecticut, yet by the peculiar description, and it isn't therefore the Atlantic Ocean. It is incorporated in this perimeter belt of islands that appertain to the State of New York. Hugo L. Black: Would you mind giving me the citation -- Richard W. Ervin: Yes. Hugo L. Black: -- to the New York, because -- Richard W. Ervin: Yes, sir. It is -- Hugo L. Black: -- I couldn't find it in the Alabama's brief. Richard W. Ervin: Yes, I am sorry, sir. It's in the -- it's in the Government's brief and it -- but it is Mahler, M-A-H-L-E-R, versus Norwich & New York Transportation Company, 35 N.Y. 352. We -- we cite that case with the view that inland waters were not necessarily the basis of the New York decision as the Solicitor General said and instead that a description boundary covered the territorial waters in that particular situation. That is the only case we can find on this subject. And in addition, of course, to what was said in the case of Louisiana against Mississippi. While the imperium of the United States on these waters is unquestioned, we do contend that the boundary lines of Florida in the Gulf headed down antiquity and reflected in Florida's pre-statehood laws are confirmed by the Submerged Lands Act to the extent of granting natural resources out to three leagues. Now, I want to show you about Florida's specific situation. We have a map here of the State and this red line is supposed to represent three leagues from coast. We have the Florida keys archipelago that extends from the mainland of Florida nearly 150 miles off coast. And we contend that when King George III proclaimed a six-league boundary, we can say a perimeter boundary including all of our -- actually he said, including all the islands within six leagues of the coast. We think he must have had some knowledge even in 1763 of these islands of Florida's coast. Some kind of description of a blanket in nature was needed to cover. Anyway, we have -- those, I am sure all of you probably have been in the area and you know the thousands of islands of -- or coral islands are here in this area. For example, there are enough island along here for the State to run a highway of 100 miles to Key West. Now, we have developed going on all out in these islands, there are -- there are projected parkways, new highways, fields of all the kinds, and I wish you would, if -- if it has any relation to this question that this day, please bear in mind that all of the ground -- the Gulf coast of Florida, we have this developed going on. People have bought as far as a mile out in the Gulf and are filling in at areas not prior reached, and it has to be made such, they actually which have to be developed before it is of any real value. But back in 1763, when this boundary was proclaimed to cover these islands, the situation was this. Parks, and this is a part of the law of Florida and Florida Keys, parks operated in these Florida straights along the Gulf coast and they needed a wider boundary. Actually, we have been able to measure the new depth of this water along here -- here at many places, it's not over three or four feet deep. And along in here for example, throughout the whole area, it isn't more than four thousand on the average. And we think that it would certainly (Inaudible), if -- if we're now decreed, that everybody had to go and deal with the Federal Government so far as landfill development is concerned within its other (Inaudible). Now, these clusters of islands all around the coast presented special problem and there was a real reason for a six-league perimeter boundary and a different, we think, consideration for Florida in that relation. Remember please, if you will, that the Professor Sone (ph) who has briefed this matter for the Gulf coastal States, tells us that coastal states with -- with very shallow shoal area needed a wider gird in order to protect coastal ship. Now, I am -- I am closing. I want to say only this that it is a principle of law, it was stated many years ago, well, in 1909 by the Permanent Court of Arbitration in the Grisbådarna case, where it said, it is a settled principle of law of nation that a state of things which actually exists and it existed for a long time should be changed as little as possible. This condition has existed of our Florida coast. We thought we had the right to develop and then use it of all these years and we do believe that it does present a special situation. For that reason, Florida case, we think justifies a perimeter boundary as a part of the original admission of -- of the State into the Union. I have made a mistake of referring to page 4 from the Alabama brief. I'd like to correct it, it's page 10. Speaker: As I understand it (Inaudible). Richard W. Ervin: Yes. Speaker: (Inaudible) Richard W. Ervin: Throughout in our history, yes sir. Speaker: (Inaudible) Richard W. Ervin: Reconstruction of Constitution, which Senator Holland -- Hugo L. Black: (Inaudible) the part of it as I understand it (Inaudible). Richard W. Ervin: That's --yes sir. Hugo L. Black: (Inaudible) Richard W. Ervin: That's right. Hugo L. Black: That's precisely the thing as in Alabama. Potter Stewart: Now, in addition to that, you have a (Inaudible) also don't you, in connection with the rather extravagant claims with retention (Inaudible) Spain, in which he -- Richard W. Ervin: That's true -- Potter Stewart: -- tried to report by various Spanish Treaties. Richard W. Ervin: That's right, yes sir. Those are -- Potter Stewart: (Voice Overlap) extent -- Richard W. Ervin: Those are developed in our brief. Potter Stewart: Yes, but at some length, you had concededly – your argument is that – your additional argument (Inaudible) Richard W. Ervin: That's right. Potter Stewart: -- to your argument is -- you are making an additional argument (Inaudible). Richard W. Ervin: Yes, sir. Potter Stewart: West Florida when it came -- the Alabama -- Richard W. Ervin: I think that‘s correct. Isn't that right. Hugo L. Black: Part of it. Richard W. Ervin: Part of it. Hugo L. Black: The part (Inaudible) Richard W. Ervin: Yes sir. Potter Stewart: Now, the reason for my question to the Solicitor General is how -- how Alabama came to country whether it was under the Louisiana Purchase or cession with -- Richard W. Ervin: I thought it was -- Potter Stewart: -- Spain was to found out whether it shared your argument -- Richard W. Ervin: Yes. I -- I thought it's part of the (Inaudible) from Spain. Speaker: What goes in boundary claims (Inaudible). Richard W. Ervin: Yes, sir. Speaker: (Inaudible) Richard W. Ervin: I think Senator Holland is going to develop that Mr. Justice. Spessard L. Holland: Mr. Justice Black, may it please the Court. I'd like to ask the pleasure of the Court with reference to whether we should proceed. I see we have 10 minutes to the closing time. Hugo L. Black: That would be (Inaudible) we have cases that follow. Spessard L. Holland: May it please the Court. I think that I should first refer very briefly to this map which I have been already adverted to by our Attorney General that the coastal province of Florida stands from its north boundary where it joins with Georgia on the Atlantic Ocean down the open Atlantic for several hundred miles, and then into the trades of Florida for -- between the 150 and 200 miles, and then back to its mainland. Then for a distance which as I recalled it around 470 miles, prolong the west coast of Florida bordering the Gulf of Mexico. The claims of Florida, as we think, are substantiated by the facts under the law that relates to a three-league boundary, are confined to the Gulf-frontage along the Gulf of Mexico on the mainland of Florida. I do not comprise the frontage northward on the Gulf of Keys or southward on the straights of Florida and the Atlantic Ocean of the Keys, nor eastward on the Atlantic Ocean of the mainland of Florida. William J. Brennan, Jr.: Under what -- that does in the beginning point under which you are -- Spessard L. Holland: That is Cape Sable. Potter Stewart: From that point north. Spessard L. Holland: It's from that point north. The -- Hugo L. Black: What is the point farther to the north? Spessard L. Holland: The point farthest to the north or west, Your Honor? Hugo L. Black: West, excuse me. Spessard L. Holland: The point farther to west is the point that where Florida joins Alabama as the mouth of the Perdido River. And incidentally, the two states by compact, proved by Congress, have so clarified and made certain that point of joinder that any engineer could locate it and that has been done in the efforts to clarify the property claims between the States. Now, the Attorney General has already said that State of Florida has the two claims, one under the first string of the ball which applies to the boundary of the State when it entered the Union, which claim, as I conceive it to be, is almost identical, if not identical with the claims of Alabama and of Mississippi and is quite similar to the claims of at least part of Louisiana. West Florida extended at one time than the Apalachicola River, which is this location here all the way across to Louisiana. And farther north, went to even farther west extending all the way to the Mississippi River. But Florida was subject to be shunted back and forth between Spain and England and France on particular occasions and it so happens that we lost that excellent part of West Florida now comprised in much frontage of Alabama and Mississippi and some of the area of Louisiana during the course of shuffling. We hope that will be the last of our good state which we shall lose at anytime. The part of the Florida case which I shall discuss as quickly as I can in the time allotted, relates to that string of the ball, which reserves where the boundary has been extended in the Gulf of Mexico beyond the three geometric miles, but not to exceed three leagues by Constitution of the State and that Constitution approved by act of Congress. It is our claim that the Constitution of Florida was approved in 1868 by Congress and that the boundary provision which is Article 1 of that Constitution and which is being carried forward as Article 1 in the present Constitution, the Constitution of 1885, gives us three leagues off the mainland of the coast of Florida in the Gulf of Mexico. Hugo L. Black: Well that's the reason (Inaudible) Spessard L. Holland: That was -- that was the Constitution of 1868 one was and 1885 one did not come to Congress, the 1868 one did come to Congress. And -- Hugo L. Black: Even with the other states involved, do they have a Constitution, the same Constitution. Spessard L. Holland: All of the other states that came back to the representation in Congress and to the opportunity to function again through their local governments had to draft their constitutions and present them under the wording on requirements of the Reconstruction Act for examination and approval. Now, those are the two words used by the Congress. Hugo L. Black: And is that what Florida is relying on in the second phase? Spessard L. Holland: That is what Florida is relying on in the second phase. Hugo L. Black: Well Constitution of the same kind, which was approved by Congress of Louisiana and Mississippi and Alabama. Spessard L. Holland: Constitution were approved for all of the other states, if Your Honor please. I can't say they were of the same kind. I am not familiar with it, but apparently, this boundary question, insofar as it affects the three leagues in the Gulf of Mexico, is peculiar to Florida. If there'd be any other State that is affected by this question, I have not heard of it. At the end of the war, the war between the States, sometimes called, the Civil War, the country was in great confusion. And in spite of the fact that the State of Florida had adopted a new Constitution in 1865, the Congress required the State of Florida and all other states that were in the confederacy to frame new constitutions under the Reconstruction Act. At the time, it was one of the great confusion in Florida, goes without question. I think that the Court would take notice through the debates at least, that there was great confusion in Congress, because there was bitter argument of the most serious sort throughout this period. As a matter of fact, the Reconstruction Act, as the Court well knows, was passed over the veto of the then President, President Johnson, and then the various acts supplemental thereto were passed, as I recall, over his veto and the act readmitting to representation of the States and reinstalling their civil government, so that they could begin to function, again was passed over the veto of the President. And the Court will know and take judicial knowledge of the fact that relations between the Congress and the Executive were exceedingly strain and that the -- after that impeachment began very shortly thereafter and came as I recall within one vote of -- of success. It was a time of bitterness and it was a time of suspicion, a natural suspicion, on the part of Congress, which did not include Senators and House and Representatives from the South in looking after the reorganizations of governments that were tempted by the southern states. Now, I say that without any bitterness at all, it was very natural that such a situation should exist. Felix Frankfurter: Your point is that the -- that the Constitution that was presented for re-representation would have been kept and scrutinized, is that your point? Spessard L. Holland: It certainly would. That's the first point I was going to make and Your Honor has gone ahead of me and I appreciate he's mentioning it, that if any constitution -- that every constitution that came up at that time was bound to be very closely and carefully scrutinized, because of the bitterness that existed, and that the well-founded suspicion because of the certain things that has -- that has happened towards the good faith with those who were seeking so hard to reorganize their States. And I think it unnecessary to remind this Honorable Court that those who had seats in the constitutional conventions were very frequently not long time established citizens of the State, because by the times of the Reconstruction Act, many of them were disqualified from either voting or accepting a -- a representation as a delegate or holding office of any kind at that time. So that the whole situation was one which was very scrambled and very confused, if it please the Court, I'm just getting started. I see that the time has -- has come for -- Hugo L. Black: We'd be glad to hear you in the morning. Spessard L. Holland: Thank you very much. You're very kind.

John G. Roberts, Jr.: We will hear argument first this morning in No. 09-1227, Bond v. United States. Mr. Clement. Paul D. Clement: Mr. Chief Justice, and may it please the Court: The standing of Petitioner to challenge the constitutionality of the Federal statute under which her liberty is being deprived should not be open to serious question. She clearly satisfies this Court's modern tripartite test for standing. Indeed, it is hard to imagine an injury more particularized or concrete than six years in Federal prison, and the liberty interest she seeks to vindicate is her own, not some third party's. In many ways, I think "standing" is a bit of a misnomer here. Petitioner is not a plaintiff who seeks to invoke the jurisdiction of a Federal court. She is a defendant who has been hailed into court by a Federal prosecutor. There is no logical reason she should not be able to mount a constitutional attack on the statute that is the basis for the prosecution. Anthony M. Kennedy: Do our -- any of our opinions talk about the standing of the defendant? I can't think of one at the moment. Paul D. Clement: Well, I think it was in the habeas context, but the Spencer decision does talk about how, when you have a criminal defendant or somebody who is serving a sentence, their standing to challenge the conviction is essentially one of the easiest standing cases you can imagine. And I think in a sense, the same principles would apply here. But as I said, I think standing is normally something you think about as applying to the plaintiff, who is invoking the jurisdiction of the court. So what's really at issue here is something -- almost more of a bar on somebody's ability to make an argument that would vindicate their liberty, and I see no reason why, in logic, that should be the case. Now, the court of appeals essentially didn't apply ordinary-- Antonin Scalia: Well, it seems to me there are certainly some arguments you could make as a defendant for which you have no standing. You're saying there's no argument you can make as a defendant for which you have no standing? Paul D. Clement: --Well, I'm not sure you would call it normal standing principles, Your Honor. There are certainly arguments you could make that you -- would have no business having anything to do with your case. There's arguments you could make that would have nothing to do with -- would be non-justiciable-- Antonin Scalia: Suppose I raise an Establishment Clause objection in a matter that -- that does not involve legislation and which our recent opinions say therefore does not violate the Establishment Clause? Paul D. Clement: --Well, I guess I would have to know why you were a defendant in that case and how it had anything to do with the price of tea in that particular case. But-- Antonin Scalia: No, you wouldn't. All you -- all you would have to know is that the claim is based upon a statute -- is not based upon a statute and that our Establishment Clause jurisprudence says if it's not based upon a statute, it doesn't violate the Establishment Clause. Paul D. Clement: --With respect, I don't think that follows. I mean, I think if -- if the Federal executive tried to imprison you based on your religion, you could take issue with that and say that's an Establishment Clause violation. The problem in your recent case, the Hein case, is the only-- Antonin Scalia: I'd say it's a Free Exercise Clause violation. I don't think you need the Establishment Clause for that. Paul D. Clement: --Well, if they said, well, we're hereby establishing a religion and you're not part of our religion and we're therefore imprisoning you, I would think you could bring that claim. But in all events, bringing it back to the case before you, I think there is no reason to think that ordinary principles of standing wouldn't give my client every ability to challenge the constitutionality of the statute under which she's being held. Elena Kagan: Mr. Clement, in the case before us, are you making any claims other than that Congress was acting outside its enumerated powers in enacting this statute? Are there any peculiarly Tenth Amendment claims that you're making? In other words, you admit that Congress is acting within its enumerated powers and yet the action violates the Tenth Amendment. Are you making any claims of that sort, or are all your claims that the statute here goes beyond Congress's ability to enact it under Article I? Paul D. Clement: Well, Justice Kagan, principally our argument here is an enumerated powers argument. My problem, though, is I'm not sure I understand some clearly defined set of Tenth Amendment claims that are uniquely only Tenth Amendment claims and not enumerated power claims. Elena Kagan: Well, let's just use the Printz case and say, even though Congress might have the ability to enact a statute under Article I, there's an independent Tenth Amendment limitation. Do you have any claims of that kind in this case? Paul D. Clement: Well, I don't think so, but let me just say that my problem is -- take the Printz case. The Printz case itself went out of its way to say that it was an enumerated power case. In answering an argument in the dissent, the majority opinion says, this is not separate from enumerated powers. If you-- Elena Kagan: Well, let's assume, Mr. Clement, that there is such a thing as a claim in which you're saying, I can see that this is within Congress's Article I powers, but there is an independent Tenth Amendment limitation on this. Do you have any claims like that? Paul D. Clement: --I don't think so, Justice Kagan, but I'd hate to sort of bet my case that on remand, I'm not going to say something in making an argument that the government or somebody else thinks is too much of a commandeering claim and too much -- not enough of an enumerated power claim. Ruth Bader Ginsburg: The government agrees that it's an enumerated power claim in this case. Paul D. Clement: Again, Justice Ginsburg, that is the basis of our claim. But just to give you a-- Ruth Bader Ginsburg: You are -- you are at no risk if the Court were just limited to what both of you agree is involved -- Article I, Section 8 -- and if there is a difference for commandeering claims, when the case arises, we can deal with it. Paul D. Clement: --Well, Justice Ginsburg, you could certainly do that, and as long as it is crystal clear that there will be no obstacle to my client making a constitutional attack on section 229 on remand, I suppose that's fair enough for my client. But one of the arguments we've preserved, for example, is the argument that Missouri vs. Holland is not a blank check for the government, that it requires a balancing of the State's interests against the Federal interests. And if on remand, I wax eloquent about the State's interest in criminal prosecution and law enforcement, I would hate for a trap door to open up at that point and I be told that, wait, wait, that's too much of the State's interest and not enough of your own interest. Anthony M. Kennedy: So you want us to say that when there is a specific injury, specific to your client, that your client has the right to make any argument to show that the government has exceeded its powers under the Constitution, because those powers are limited to protect the liberties of the individual? Paul D. Clement: Exactly right, Justice Kennedy, and that's the fundamental worry I have here, is that this Court's cases have not drawn a distinction between commandeering claims and enumerated powers claims. The two cases the government points to, New York and Printz, both go out of their way to say that they are mirror images or, in fact, enumerated power claims, because a law that commandeers is not necessary and proper. And I do also think that a part of the problem with the suggestion that somehow Tennessee Electric should be reimagined as a third party standing claim is it fundamentally miscomprehends for whom the structural provisions of the Constitution are there for. Those provisions are there to protect the liberty of citizens. The United -- this Court made that point in the Free Enterprise Fund just last term. There was a case where it wasn't the executive complaining about the infringement on executive power. The Executive Branch ably defended the statute in this Court. It was a disgruntled accounting firm that was allowed to vindicate the separation of powers. Samuel A. Alito, Jr.: Can't there be some Tenth Amendment claims that go just to State prerogatives and not to the rights of individuals? Let's say there's a Federal statute that purports to regulate where a State locates its capital, or the -- the contents of a State flag, something like that. Wouldn't that go just to State prerogatives and not to individual rights? Paul D. Clement: I think it would, Justice Alito. My point is not that there's some special rule for the Tenth Amendment that plaintiffs will always have standing. My point is that you should just apply the normal rules. And what I don't think is sustainable is the proposition that in commandeering claims an individual never has standing. I mean, imagine a Federal statute that purported to save Federal money by commandeering local prosecutors to prosecute Federal crimes. Well, I would hope that a defendant in that kind of case would be able to raise a commandeering argument as a defense. I don't think it would be any different if Congress tried to commandeer the Comptroller General to start bringing criminal prosecutions. In that case-- Elena Kagan: Mr. Clement, if you are not making a commandeering claim, then we would be going out of our way to decide that question. And so, you know, are you making a commandeering claim? Paul D. Clement: --I don't -- I don't self-identify as having made a commandeering claim. But what I would say is -- we're not asking you to do anything special. I just think it's the government that's asking you to go out of your way to reconceptualize Tennessee Electric as a different kind of case and preserve it. Samuel A. Alito, Jr.: Well, the problem is if you're just making a treaty power claim, then how are you going to possibly win on remand in the Third Circuit if we reverse and say that your -- your client has standing? Do you think it falls within the prerogatives of the court of appeals to say that Missouri v. Holland was wrong? Paul D. Clement: Well two things, Justice Alito. First, this is a technical matter. We could go back to the Third Circuit on our way back to coming here and we would still have standing to make an argument that it's foreclosed by precedent. But I think it's a mistake to think that Missouri v. Holland is some bright-line rule that forever answers this question. As I read Missouri v. Holland and as we clearly argued before the Third Circuit, it's not a blank check. It's really is more of a balancing test that looks at the State's interest and the Federal interest in assessing whether or not the statute that implements the treaty is necessary and proper. And I think this case compares pretty favorably with Missouri against Holland because there the state's interests was very weak because these birds were just flying through on their way and there was no real State interest, or so this Court held, whereas in this case the State has a real legitimate interest in law enforcement. I also think we ought to be able to make-- Samuel A. Alito, Jr.: Does that depend on the nature of the chemical that's involved? Suppose the chemical was -- was something that people would normally understand as the kind of chemical that would be used in a chemical weapon? Let's say it's Sarin does it matter that this case doesn't involve something like that? Paul D. Clement: --I think it does, Justice Alito. I think it would matter in part for a constitutional avoidance statutory construction argument, which I think also ought to be open to us. I sort of think by analogy to the Jones case, where this Court said that a Federal statute about arson doesn't apply when a cousin throws a Molotov cocktail at a residence. Antonin Scalia: But that's a merits question rather than a standing question. I assume we're not getting into those merits questions here. Paul D. Clement: No, I was trying to respond to the question of whether we would be foreclosed. Antonin Scalia: All right. But you're confusing me. I thought we were just doing standing. Paul D. Clement: No, we're not asking you to do more than do standing. But I do think it's important to understand that we don't think we would be limited to just losing on Missouri v. Holland below and coming back up. We think we have a very good argument about Missouri v. Holland as applied. We also think that there is sort of a statutory construction argument. And this isn't sarin. There is something sort of odd about the government's theory that says that I can buy a chemical weapon at [AmazonDOTcom.] That strikes me as odd, and that seems to me the kind of thing where you could make a statutory construction to say, well, maybe sarin or maybe actual chemical weapons, that's one thing, but with respect to this kind of commonly available chemical, to say without any jurisdictional element or anything like that, that it's a Federal crime seems like an argument we at least ought to have standing to make. Stephen G. Breyer: What do you say about the one thing -- the strongest point against you, I think, is a single sentence in that TVA case. It's only one sentence, but it's there in the opinion, and I think what it's saying, Justice Roberts says, well, he already finished, he just finished saying nobody -- Congress hasn't violated some rule against creating a system of regulation in this statute because it isn't regulation. But then he said, but even if it were, even if it were, and if your complaint was that Congress has acted outside its authority, which they might have thought at that time, in creating a system, TVA, that competes with local systems, even if that were so, the appellants, absent the State or their officers, would have no standing in this suit to raise the question. Okay, now, that -- they put quite a lot on to that. That is what it says. So are we supposed to say, well, that was an ill-considered dicta? Or are we supposed to say it was just wrong? Are we supposed to say the law has changed? What in your view are we supposed to -- or is different. What in your view are we supposed to say? Paul D. Clement: Could I say two things about that sentence, and then explain what I really think you should say? First of all, the first thing I would say about that sentence is that I don't think, read in the context of the entire opinion, it actually means that the Court is trying to impose a special disability on Tenth Amendment claims, because remember, they have already rejected the plaintiff's basis for having standing. Stephen G. Breyer: So it comes out of left field, and it's an overall "any, even, if". So that suggests it's just dicta and doesn't count. Paul D. Clement: And it's dictum in another way. But what I think it stands for is the proposition -- it rejects the argument that if you don't otherwise have standing under the governing standing rule of the day that you somehow have a license to bring a Tenth Amendment claim. And if that's what it stands, well, it was right then and it continues to be right. A second point to make about it is it is dictum, and if you read the sentence, what it says is the following: It makes a reference to what it's already established a couple of paragraphs earlier, which is the states at issue here have passed laws to accommodate TVA's sale of power, and then it goes on to say, if this were not so. What does that -- that is a counterfactual hypothetical. It's the worst kind of dictum. It says if this were not so. If it were not the fact that the States had already taken these actions to affirmatively accommodate then we would have a different question and then there wouldn't be standing. So it is dictum I think and can be disregarded as such. But really if you ask me what you should do with it, you should do what you did in Twombly, with some language in an opinion that had continued to cause trouble in the 50 years since. You should just say that's no longer good law because it's not. The central holding of Tennessee Electric was overruled 40 years ago in the Camp case, and I think this language is of a piece from that legal interest test, the legal wrong test of standing, and I think this Court should make clear that it doesn't apply any longer, and the virtue of that would be that it would free up the lower courts to decide these Tenth Amendment standing claims based on an application of normal standing principles, because that's not happening in the lower court right now. In the lower court right now what happens is somebody comes in with a Tenth Amendment claim of whatever stripe, maybe it's a commandeering claim, maybe it's not, and what they're confronted with, especially if it's a commandeering claim, is a quick citation of Tennessee Electric, an equally quick citation of Shearson which says only this Court can overturn its decisions, and that's it. No standing analysis, nothing subtle about the particular claim. And that's not a sustainable situation. If I could reserve the remainder of my time. John G. Roberts, Jr.: Thank you, Mr. Clement. Mr. Dreeben. Michael R. Dreeben: Thank you, Mr. Chief Justice, and may it please the Court: As Petitioner confirmed this morning, the central claim that he is making about the unconstitutionality of section 229 is that it exceeds Congress's enumerated powers. He may wish to raise as part of that claim a argument that it invades the province that belongs to the States concerning criminal law. He can do that. He has the authority to make such a challenge. The Third Circuit erred in holding to the contrary. Now, the Third Circuit in reaching the contrary conclusion relied on this Court's decision in Tennessee Electric v. TVA, and we think that the court of appeals misread that case in concluding that it barred standing, not because it lacks a holding that does bar standing of certain types of claims that allege an invasion of State sovereignty, but because the kind of claim that Petitioner is making is not a Tenth Amendment reserved rights claim, but instead an enumerated powers claim. John G. Roberts, Jr.: It's kind of hard under our precedents to draw that precise line between enumerated powers and the Tenth Amendment, and it seems a bit much to put defendant to the trouble of trying to do that under the theory from TVA that they have no standing to make a particular type of Tenth Amendment claim. Michael R. Dreeben: Mr. Chief Justice, I don't think that the defendant needs to be put in any trouble in this case because the kind of claim that counsel is making on her behalf does assert her right not to be subject to criminal punishment under a law that he says, counsel says, Congress lacks the authority to enact. Samuel A. Alito, Jr.: Well, what if they argue -- what if she argues on remand, if there is a remand, that, assuming for the sake of argument Congress can enact any law that is necessary and proper to implement a treaty? The Tenth Amendment prohibits certain laws that intrude too heavily on State law enforcement prerogatives, State police power. If she makes that argument, which category does that fall into? Michael R. Dreeben: It falls into the enumerated powers category, Justice Alito, just as last term in United States v. Comstock one of the elements that this Court looked at when it decided whether the law authorizing civil commitment in that case was within Congress's enumerated authority plus the Necessary and Proper Clause, the Court looked at the extent to which the law accommodated State interests or, alternatively, invaded them in an unlawful manner, which is what Mr. Comstock had alleged in that case. Anthony M. Kennedy: But you're -- you want us to say that, even if the defendant in some case might show that a constitutional violation is causing that defendant specific injury, the defendant may not be able to raise the claim of its, what you call sovereignty claim? In Thornton v. Arkansas, the term limits case, we allowed a citizen of a State to bring a challenge to a statute that the State had enacted inconsistent with its Federal powers. Now, that's the flip side. That was a State statute, not a Federal statute, but it seems to me that is inconsistent with the position you're taking. And it seems to me also consistent -- inconsistent with the rule that separation of powers claims can be presented by defendants, in Chadha v. INS, Clinton v. New York, a line-item veto case. The whole point of separation of powers, the whole point of federalism, is that it inheres to the individual and his or her right to liberty; and if that is infringed by a criminal conviction or in any other way that causes specific injury, why can't it be raised? I just don't understand your point. Michael R. Dreeben: Well, Justice Kennedy, I -- I don't take issue with almost everything that you said. The structural protections of the Constitution can be enforced by individuals under the cases that you have cited. What we are dealing with here is two things. First of all, a statement that this Court made in TVA that was part of its holding, addressed to what the Court perceived as an attack based on a specific aspect of State sovereignty that belonged to the States. Now, today, we might not understand the claim that was made in that case as implicating a specific sovereign right that's protected under the Tenth Amendment. Today we might look at it and say this is nothing other than a conventional preemption claim. Samuel A. Alito, Jr.: I don't know whether that's a correct characterization of the argument that was made in -- in the Tennessee Electric case. I -- I'm looking at the brief in the case, and the discussion of the Tenth Amendment generally follows a caption that says the power to dispose of Federal property does not include any power to regulate local activities. I don't understand why that isn't the same kind of delegated powers argument that you say the Petitioner here is raising. Michael R. Dreeben: That may be, Justice Alito. I think that it's a little bit difficult to parse precisely what the Petitioner in Tennessee Electric was arguing, but this Court understood the claim as one that -- that bore on Federal regulation of purely local matters in a matter that regulated the internal affairs of the State; and I agree with you that today we might not view that as a Tenth Amendment-specific claim, but this Court did in 1939. Stephen G. Breyer: Why didn't it just consider it as outside the Commerce Clause? I mean, they had a whole lot of law, but what is the distinction between saying, as they said then, "Court, the TVA regulates electricity rates in Memphis and that's beyond the power of Congress to enact? " Michael R. Dreeben: Justice Breyer-- Stephen G. Breyer: In this case, which -- because of the Tenth Amendment and a lot of other things. Michael R. Dreeben: --I understand that, Justice Breyer. Stephen G. Breyer: And this case seems the same, saying it's beyond the power of Congress to enact because of the treaty. Michael R. Dreeben: Well I think if you intrude today's analytical model-- Stephen G. Breyer: Yes. Michael R. Dreeben: --under today's jurisprudence, that is how the case would be viewed. But it was not how it was viewed at the time of TVA. Stephen G. Breyer: How do we know that? I'm not doubting you; I just want to know. Michael R. Dreeben: The language from the sentence, Justice Breyer, that you in fact read-- Stephen G. Breyer: Yes. Michael R. Dreeben: --discussing whether the presence or absence of a State objection mattered, the Court said: As we've seen there's no objection from the State, and if this were not so the appellants, absent the States or their officers, have no standing to raise any objection under the amendment. Sonia Sotomayor: Let's assume in this hypothetical -- just that case, TVA. State -- the Federal Government sets the price, and someone's accused of violating that price. Can that defendant come in and say, just as in TVA, that's unconstitutional because prices have to be set by the State? Can the defendant say that, or is that an anticommandeering claim that you say they're barred from raising? Michael R. Dreeben: That is not an anti-commandeering claim. That is the kind of claim that today we would conceptualize as an enumerated powers claim. Sonia Sotomayor: So my question goes back to one that's been asked before, which is, give me a hypothetical of a defendant who has been convicted where it would be a pure anticommandeering claim that you say they have no standing for. Michael R. Dreeben: This will take me back to -- to Justice Kennedy's question, because I wanted to answer the part that I thought distinguished a commandeering case from what Justice Kennedy was talking about. And the point is best made in the context of an example. Under the Sex Offender Registration Act, defendants have challenged the law on numerous grounds, including, number one, Congress lacks its constitutional authority under the Commerce Clause and the Necessary and Proper Clause to criminalize the individual registration requirement imposed on them. All courts that have addressed that have said that's a claim that's within the cognizance of a defendant to bring. Defendants have also said the SORNA statute violates Federal law because it requires States to accept sex offender registrations. It commandeers the States into requiring them to set up a sex offender database. Elena Kagan: Well, Mr. Dreeben, why shouldn't the defendant be able to raise that argument? If the defendant prevails on that argument, presumably the statute is invalidated and the conviction is overthrown. So why doesn't the defendant have the appropriate interest to raise that argument? Michael R. Dreeben: Well, Justice Kagan, this is the absolutely crucial point that distinguishes commandeering from most of the structural constitutional provisions that we've been discussing this morning. A State can choose to establish a sex offender database and to receive registrations from people who are required to register under Federal law; and invalidating a Federal law that commanded them to do that does not deprive the State of its ability to say, we want to have, in our autonomous sovereign interest, a sex offender database that will receive these applications, and as a result-- Anthony M. Kennedy: Well, all you're saying is that there's -- in that hypothetical is that there's no violation? Michael R. Dreeben: --That's correct. Anthony M. Kennedy: Everybody goes home. Michael R. Dreeben: There -- the reason why in that hypothetical the defendant should not raise the issue is because there will be no violation-- Elena Kagan: But that's a merits question. That's not a standing question. Why don't we just say the defendant has standing to raise it, and then he'll lose? Michael R. Dreeben: --You could say that, Justice Kagan, but I think that part of the enduring force of TVA is that it adopted a third-party standing rule that is still part of this Court's jurisprudence. Antonin Scalia: Well, why couldn't you have said the same thing in TVA, that, while companies are -- are -- not -- yes, the Federal -- the Federal statute requires the companies to charge this price, but they might have decided to charge it on their own anyway, and therefore you have no standing? Michael R. Dreeben: Well, the Court did say that there was no standing on the grounds that when the specific argument was made, this takes away the right of the State to regulate because the Federal Government is regulating. Ruth Bader Ginsburg: Mr. Dreeben, is your concern that there would be a clash in these cases? You've given the example of the State wants to have this registration system. Suppose the -- the defendant can raise that and would prevail? Well, the State's not party to that suit, its interests have not been represented. Is that -- is that your concern? Michael R. Dreeben: That is a major factor in third-party standing generally, Justice Ginsburg. Anthony M. Kennedy: Suppose a State wanted to be commandeered in Printz? Suppose they said, we really like having sheriffs take the Federal gun registration law? Michael R. Dreeben: They can do that. Justice Kennedy, there's nothing-- Anthony M. Kennedy: I -- I have -- I have -- I have serious trouble with that. A State can surrender its -- its -- a State can confer more authority on the Federal Government than the Constitution does? Michael R. Dreeben: --No, Justice Kennedy. But a State in its sovereign decisionmaking process can elect to participate in a Federal program. At least, that was what Justice O'Connor said in her concurrence in Printz. Antonin Scalia: Why isn't standard standing doctrine able to give you the protection that you're looking after? If indeed you can't tell whether the State did it because it was compelled to or because it wanted to, there was no causation and you don't have standing. Michael R. Dreeben: That is a perfectly acceptable route of analysis. Antonin Scalia: I would rather use that route of analysis than inventing the new one that you're -- that you're urging upon us. Michael R. Dreeben: Well, I don't think they're different, Justice Scalia. They both concern who holds the right and whether there's any redressability-- Antonin Scalia: Well, then let's use the one we already have and -- and not -- not have to get into developing one that I've never heard of before. Michael R. Dreeben: --I think, Justice Scalia, that all the Government is doing in this case is applying conventional standing principles of redressability and third-party standing in a specific context, which as Mr. Clement has made clear, is not before the Court today. This is not a commandeering case. That happens to be the only specific aspect of a State sovereignty claim that is distinct from an enumerated powers claim that the Court has recognized in recent decades. Whether some other sort of claim of State sovereignty might some day be recognized and require its own analysis is well beyond the scope of this case. Our point is a much more basic one. We agree with Petitioner's counsel that he can raise the claim that he has tried to raise. We think that the Third Circuit misunderstood what the TVA decision purported to say when it rejected standing for a type of State sovereignty claim. And we think that the currently recognized State sovereignty claim of commandeering fits into the description of the analytical category that was addressed in TVA. Sonia Sotomayor: Does that analysis differ in any way because this is a treaty power claim versus a Commerce Clause claim? Your briefs go back and forth on which one it is. Your reply brief now emphasizes Commerce Clause power, but your main brief was saying this is a treaty provision challenge. Do they differ? Michael R. Dreeben: Well, Justice Sotomayor, I believe that the statute is valid under either the Treaty Clause plus the Necessary and Proper Clause analysis under Missouri v. Holland. It also can be sustained in our view under the Commerce Clause, which follows directly from what this Court said in Raich when the Court said that the intrastate regulation of a commodity that's used in commerce is a customary, typical method that Congress utilizes. It gave as examples of that the nuclear, biological, and plastic explosives statutes which were enacted to implement treaty obligations of the United States. Samuel A. Alito, Jr.: Given the breadth of this statute, that would be a very far-reaching decision, wouldn't it? Suppose that the Petitioner in this case decided to retaliate against her former friend by pouring a bottle of vinegar in the friend's goldfish bowl. As I read this statute, that would be a violation of this statute, potentially punishable by life imprisonment, wouldn't it? Michael R. Dreeben: I'm not sure, Justice Alito. I will assume with you that it is. The statute-- Samuel A. Alito, Jr.: If she possesses a chemical weapon. Michael R. Dreeben: --I'm not sure that vinegar is a chemical weapon. Samuel A. Alito, Jr.: Well, a chemical weapon is a weapon that includes toxic chemicals. And a toxic chemical is a chemical that can cause death to animals. And pouring vinegar in a goldfish bowl, I believe, will cause death to the goldfish, so that's -- that's a chemical weapon. Michael R. Dreeben: I'm willing to make the assumption with you and accept that it is a broad-reaching statute, but it was adopted as a broad-reaching statute because this is an area, like the medical marijuana instance in Raich, where effective control of the interstate market requires control of an intrastate market. The statute exempts peaceful uses for agricultural and pharmaceutical purposes of these chemicals, it has other exemptions as well. It was intended to be a comprehensive ban that implemented the United States treaty obligations to eliminate the use of chemical weapons both in military instances and in terrorism, and-- Samuel A. Alito, Jr.: The difference is that Raich involved one commodity, right? Marijuana. This involves potentially thousands and thousands of chemicals. And you would have -- you would make the same argument with respect to every one of those chemicals if you take together all of the people who are -- who would use vinegar to kill goldfish or all the people who might use antifreeze to kill dogs, you put all of that together, that has a substantial effect on the interstate, the interstate market for antifreeze or for vinegar? That would be the argument? Michael R. Dreeben: --Well, I think it's pretty well recognized, Justice Alito, that when Congress seeks to regulate an interstate market as to which there cannot be any question under the Commerce Clause Congress could do, it can control the intrastate market as necessary in order to assure that its prohibition is effective. Antonin Scalia: You're trying to drive vinegar out of the interstate market? Do the people know you're trying to do this? Can you really argue that this statute is designed to drive vinegar out of the interstate market? Michael R. Dreeben: No, of course not. Ruth Bader Ginsburg: Mr. Dreeben, are we getting to the merits of the case? Michael R. Dreeben: A lot further than I had intended, Justice Ginsburg. The merits of the case, though, involve both a Commerce Clause argument, a treaty-based argument. As far as the standing principles go, I don't think that there is any difference between them. Missouri v. Holland was a case in which this Court adjudicated whether a law exceeded Congress's enumerated authority. It did that at the behest of a State, but there is no reason why under cases like Lopez and Sabri and Perez that an enumerated powers argument is in any way off limits to a criminal defendant. It's not. If this case does go back down to the Third Circuit, a petitioner can make the argument that this law exceeds the enumerated powers. We can rely on the Treaty Clause. It doesn't affect standing in any way. I think that the amicus in support of the judgment makes the assumption that because Missouri v. Holland is good law, there's no possible claim that Petitioner can make that the law would exceed Congress's enumerated authority. Therefore, the amicus says this must be some sort of a special State sovereignty claim of a genre that looks like commandeering, perhaps not articulated quite light that. We don't understand Petitioner to be making that argument. I think Petitioner confirmed today that's not what she's trying to do, and there is no Tenth Amendment claim based on a specific aspect of State sovereignty that Petitioner has ever made. In fact, if you look at Petitioner's brief in support of the rehearing petition, Petitioner said the Tenth Amendment argument raised by Bond was not critical to Bond's other constitutional challenges. It is ancillary to Bond's main argument that Congress acted outside of its enumerated powers. I think that's a correct understanding of what Petitioner has sought to argue in the court below. In our view, she is entitled to make that argument. That argument should also fail on the merits, but that is not an issue that this Court granted certiorari to decide. Ruth Bader Ginsburg: In the category that you would like to have saved, you said commandeering, but you said there conceivably could be others. Is there anything concrete, anything other than commandeering, that might fall under this State sovereignty side of the line? Michael R. Dreeben: Well, as Justice Alito pointed out, the Court has indicated that moving a State capital, a direction to move the State capital, might be an intrusion on sovereignty. Ruth Bader Ginsburg: Unlikely to come up as a defense in a criminal case. Michael R. Dreeben: Highly unlikely. John G. Roberts, Jr.: Thank you, Mr. Dreeben. Michael R. Dreeben: Thank you. John G. Roberts, Jr.: Mr. McAllister. Stephen R. McAllister: Thank you, Mr. Chief Justice, and may it please the Court: The relevant standing doctrine in this case is the prudential rule against third-party standing. No one disputes here that the Petitioner has Article III standing. One of the difficulties in the case is that the only case that mentions specifically standing in this context is the Tennessee Valley Authority case and it clearly says if it is in fact a Tenth Amendment claim, unless you have a State official or the State, there is no standing. John G. Roberts, Jr.: Pretty harsh, if we're talking about prudential standing, to deny that to a criminal defendant, isn't it? Stephen R. McAllister: It's potentially harsh, Your Honor, but there are lower court cases that have certainly done it. There is some circuit cases where a criminal defendant has tried to make a Tenth Amendment claim and the court has said no. She still has several other claims here. We all agree, I think, to the extent you could really characterize her claim as an Article I enumerated powers claim, this Court has assumed many times that defendants have the standing. This Court generally has not discussed it, but it has assumed it, and so there are cases that say no standing for a criminal defendant. She did make a Fifth Amendment due process vagueness challenge. If she had other Bill of Rights type claims. Even the treaty power cases like Reid v. Covert recognize you could raise that kind of claim, but the Court's cases do distinguish between Tenth Amendment and other claims. And a lot of the argument here is about what is on the Tenth Amendment side of the line, what is a lack of power, for a better word, whether it's -- there's an Article I, power doesn't reach it. And in particular I would point to the Heller case, which Petitioner mentions in her reply brief, but frankly is off by one page in the citation that the Court should focus on, pages 579 to '80. The Court says "there are three times in the Constitution where the word. " the people "is not talking about individual rights. " "And the three examples the Court gives are the Preamble, Article 1, Section 2, and the Tenth Amendment. " "And the Court says these provisions are about reservations of power, not rights. " "And also the Printz and the New York v. United States cases say there is something substantive about the Tenth Amendment that is a limit separate and apart from Article, Section 8. " Sonia Sotomayor: Excuse me. What do you see specifically? Because there's a lot of discussion about labels and what the labels mean in this case. But tell me specifically what -- not the word she uses, but the specific ways in which prudential considerations bar her standing; meaning: What about the nature of her claim prudentially should counsel us against giving her standing? Stephen R. McAllister: Well, I would say at least a couple things, Your Honor. One is, the usual rule of prudential third-party standing considers the alignment or lack of alignment between the interests of the third party making the claim and the party who is not present whose claim it really is. And in this case, there's really no argument that her interests align with those of the Commonwealth of Pennsylvania. The Commonwealth in fact prosecuted her and it did not stop her. It was unsuccessful as a deterrent. And later, when local police wouldn't be involved, the Federal Government got involved. And-- Sonia Sotomayor: Do you think Pennsylvania would be upset that the Federal Government got her when they couldn't? Stephen R. McAllister: --No, that's my point. And so my point is that her interests are directly contrary to Pennsylvania's interests. So she's not stepping in saying: I share the interests of the State; therefore, let me articulate and argue the interests of the State. Antonin Scalia: Well, in a -- in another case, conceivably, the State Attorney General can exercise his or her prosecutorial discretion not to -- not to prosecute this woman, or at least not to prosecute her under the antiterrorism law that gives her 8 years. Isn't that something for the State to be concerned about? We want to have the discretion of whether to prosecute or not for standard crimes that have no relation to interstate commerce or any other Federal power. Stephen R. McAllister: Well, it's standard that both sovereigns have the ability often to prosecute if the definitions of crimes overlap, and there's nothing that prevents Pennsylvania from prosecuting her again here. Antonin Scalia: She wants to make the argument that the definitions don't overlap. She wants to make the argument that this is a strictly State, local crime, and that any -- any attempt by the Federal Government to convert it into a treaty-based terrorism crime is -- is erroneous. Stephen R. McAllister: Well, in-- Antonin Scalia: That's what she's trying to do. Why doesn't she have standing to make that argument? Stephen R. McAllister: --Because the lower courts, at least, in their defense, understood this to be a Tenth Amendment claim, and there are reasons for that. Now, in this Court neither the Petitioner nor the government really wants to talk about that or argue about that. Instead, they talk about the petition for rehearing en banc after the Third Circuit has decided the case. But if you look in the Joint Appendix, pages 26 to 32 is the supplemental brief that her lawyer filed when the Third Circuit said, post-argument: Now, wait a minute, maybe this is a Tenth Amendment case and we have a standing issue. The government, at that point, said: Hey, good idea; we don't think she does have standing. And she did not come back and answer: I'm not making a Tenth Amendment claim. Her answer is: I'm making a Tenth Amendment claim, but I have standing to make it. Stephen G. Breyer: That single sentence doesn't seem -- I'm trying to figure it out. It doesn't seem to refer to just all Tenth Amendment claims. There's a footnote and it talks about no standing in this suit. Then if you look back at the lower court case, it seemed to be referring to a particular argument where the challengers had said the Property Clause doesn't give authority to the government to pass this. The reply was, that was true in Alabama, and the Court said it was okay. Then the challengers say: Oh, but Alabama agreed. And then Georgia doesn't agree. And it was in that context that Georgia says it doesn't make any difference. But if Georgia was going to disagree or agree, if that's what it turned on, we better have Georgia say whether they agree or disagree, and not have people who aren't Georgia. That's what he seems to be saying to me at the moment. If I'm right, what's comparable to that in this case? Is there some claim that she's making that it would be constitutional if they agreed in the State and it wouldn't be if not? I don't think so. I think she means it's constitutional irrespective. Stephen R. McAllister: As a -- I mean, she's arguing a lack of power. So-- Stephen G. Breyer: Yes. So if that's so, then how can we take this sentence as barred? Stephen R. McAllister: --Well, I think, again, the sentence -- I mean, if we're talking about the sentence in TVA barring standing in Tenth Amendment claims-- Stephen G. Breyer: Yes. It just says "in this case". Stephen R. McAllister: --It says "in this case", but there's no suggestion that it will -- frankly, it's hard for us to even tell exactly what this case was in terms of the facts. It's a rather confusing case. Stephen G. Breyer: No, he cites. He gives a footnote and you read the page and you get an idea. Stephen R. McAllister: For that particular instance -- and that's certainly an example the Court had in mind. The language of TVA, though, is in no way limited to that particular instance. It just says here, there's -- if this is a Tenth Amendment claim, there is no standing. And that's why, I think, for 70 years the lower courts have wrestled with, what is a Tenth Amendment claim? Because TVA is there, this Court has announced it, and if it is a Tenth Amendment claim, there is no standing. Sort of back to Justice Sotomayor's question, though, in terms of the third-party prudential aspect of it, again, the issue is: Is this person a good person to assert someone else's interests? Yes, she has Article III standing, but not necessarily to make every constitutional claim one might think of. In the Tenth Amendment context, those claims belong to the States. They don't create individual rights. And in fact, there's good reason to think the States do get involved when they perceive actual Tenth Amendment violations. Sonia Sotomayor: Could you just articulate for me -- we're speaking in generalities -- what in the nature of her claim, taking the labels away, do you think is a pure Tenth Amendment challenge? Stephen R. McAllister: Well, that's-- Sonia Sotomayor: As I read her complaint, and it's always that it's a Tenth Amendment claim because Congress and the president have exceeded their powers in some-- Stephen R. McAllister: --As I understand her complaint, basically her argument is that unless this statute is authorized by something in Article I, section 8, the first 17 clauses, there's no power to enact it. And that's why this case is, frankly, not clearly governed by Lopez or Raich or Morrison. Those were straight commerce power cases under section 3. This is a treaty power case under Article II, and she only wants to read the first half of the Necessary and Proper Clause, which refers to all the foregoing powers. But it also says necessary and proper for all other powers. Sonia Sotomayor: --That's -- you haven't answered my -- my question. Why isn't that a merits decision as to whether or not the President and Congress have the power to enact this legislation? Stephen R. McAllister: Well, Your Honor, in essence, at the end of the day, it will be a merits question, but from a standing argument, trying to define what is a Tenth Amendment claim -- and the point I was trying to make, perhaps not successfully, is that she's not saying -- well, she is sort of saying the Article I, section 8 enumerated powers are the limits. But frankly, they can't be the limits. In light of the plain language of the Necessary and Proper Clause and Missouri v. Holland and 90 years of this Court's precedent under the treaty power, those powers are not limits. So she's asserting they're limits and saying, I'm really making an Article I claim, but that simply lets her always have standing, because, even in the commandeering cases, the plaintiff can say, this is about Article I, this is not about the Tenth Amendment. And so at some point the Court has to drill down and characterize what the nature of the claim actually is. John G. Roberts, Jr.: Well, why do we have to do that? It -- it seems to me we've had a lot of discussion this morning about whether this is an enumerated powers claim or a Tenth Amendment claim. They really do kind of blend together, and it seems to me awfully difficult to put on a criminal defendant the responsibility to decide whether this is going to be an enumerated powers claim or this is going to be a Tenth Amendment claim. The basic principles do kind of merge together, and why does it make -- again, why does it make that much of a difference and why do you put the burden on the defendant to parse the claim one way or another, since I assume they can make pretty much all the same arguments under an enumerated powers -- under the enumerated powers clause-- Stephen R. McAllister: Well-- John G. Roberts, Jr.: --In an enumerated powers argument. Stephen R. McAllister: --In an enumerated powers case, yes. The problem -- I think the difficulty with this case is it's unusual and that there -- until its reply brief in this Court, the government had not relied on the commerce power. In fact, the government had said throughout: This is a treaty power case, treaty power case. Even at the oral argument in the Third Circuit, the judge said, couldn't we decide this on the basis of the treaty power? Wouldn't -- or the commerce power -- would not that be the easy route? And the government lawyer said, no, that would be the hard route; you need to decide it on the basis of the treaty power. So I agree in a Lopez kind of case that, really, that's where the Court has often said it's just mirror image. If the commerce power doesn't go that far, then by definition it's reserved under the Tenth Amendment. But here, it's a treaty power case. It's not an Article I, section 8-- Elena Kagan: Mr. McAllister, I guess I don't understand why that makes a difference. The Necessary and Proper Clause says "foregoing powers" and it says "other powers". This happens to be a case where Congress is acting under the other powers part of the Necessary and Proper Clause, but the question in either event is the extent of the Necessary and Proper Clause and what it allows Congress to do. So in -- in that sense, whether it's a treaty power case or not a treaty power case just doesn't matter. It's all a question of what Congress's scope of authority is under the Necessary and Proper Clause. Stephen R. McAllister: --Well, I would disagree somewhat, Your Honor, respectfully, that -- her argument about the Necessary and Proper Clause I don't think is that this -- this -- she's not arguing the statute is an irrational or unreasonable way to implement the treaty obligations of the United States. What she's arguing is that the treaty power itself does not give Congress the power to enact section 229 unless, in essence, you don't need the treaty, because you already have the power, the government does, under the first 17 clauses of Article I, Section 8. So, yes, the Necessary and Proper Clause is the connection here to Article I, Section 8, but it's a minimal connection, and -- and she's not arguing sort of the -- the -- I don't think, the Comstock kind of argument that this isn't tied to, rationally, to some sort of articulated power. The government clearly has power to enter treaties under Article II, section 2, and so that to me is the distinguishing feature from all those other Article I, section 8, cases. This -- I agree; I don't think I could stand up here and -- and try to argue to you this is a true Tenth Amendment case if, in fact, this had been litigated as a commerce power case all along. Samuel A. Alito, Jr.: I'm not sure I -- I'm not sure I understood what you just said. Are you saying that -- that she is arguing that Congress does not have the power to enact legislation that's necessary and proper for the implementation of treaties, but only for the making of treaties; that she's making that argument that's been made by some academic writers? Stephen R. McAllister: No, I'm not sure that's what I meant to say, Justice Alito. What -- what I was trying to say is her argument is not -- well, I think her argument is in essence a challenge to the treaty power. It's one step removed, but it is a challenge to the treaty power, because she says the statute has to be based on something in Article I, section 8, first 17 clauses; and if it's based on something there, then the treaty power adds nothing to Congress's ability to enact legislation; and that's inconsistent with the plain language of the Necessary and Proper Clause, the fact that the treaty power is in Article II, not in Article I, section 8. And so under her view of the world -- as I understand it; I'm sure Mr. Clement will correct me if I'm wrong about my understanding -- is that really you don't need a treaty, the treaty doesn't add anything. I mean, it may be the reason that Congress decides at this point in time to enact section 229. But I believe, as I understood her argument, if it has the commerce power to do it, United States never entered -- needed to enter a treaty in order for Congress to enact section 229. So in other words, as I understand her argument, the treaty power adds nothing to the domestic legislative authority of Congress. Ruth Bader Ginsburg: Mr. McAllister, have you found any case other than this one where a criminal defendant was held to have lacked standing to challenge a statute under which the defendant was prosecuted? Stephen R. McAllister: Not in this Court, Justice Ginsburg, but there are examples in the circuits, a few. There are examples from the Eighth Circuit, from the Tenth Circuit involving criminal prosecutions where the Court characterized the claim as a Tenth Amendment claim and said, in light of TVA, the criminal defendant does not have standing to make that claim. So there are examples in the lower courts. I'm not aware of an example in this Court. And I would say this, too, about the -- there's some argument about the separation of powers cases in which the Court has typically allowed individuals to make that claim. Again, because we're talking about prudential rules and third-party standing, or at least I'm talking about that, one prudential consideration is in those cases, whether it's Chadha, whether it's Clinton v. New York, the recent Free Enterprise case, the Federal Government is always very much present. It may be representing the defendant in those cases, it may simply intervene or come in as an amicus, it gets notice if the Federal statute is challenged as being unconstitutional. The difference in the Tenth Amendment setting is there's no mechanism, practically, to notify the States or solicit the States for their interests. Someone's raising this claim that says the government is intruding on your sovereign interests; there's no mechanism to allow the States. Now, if -- if States are aware of it and come and ask to file an amicus, perhaps they would be allowed to, but there's no mechanism that ensures-- Sonia Sotomayor: Isn't that an issue for a civil lawsuit as opposed to a criminal one? Because all that would happen in a criminal suit is that the defendant's conviction would be undone, but that doesn't mean that the State is bound in some way. The State wasn't a party to the criminal action. Stephen R. McAllister: --Well, the State isn't a party, but what gets said in those cases about the scope of the State's prerogatives vis -- vis the Federal Government could well be brought to bear in other cases in other settings, commandeering cases. Again, the concern in the third-party standing case is that you're not actually a party, but someone else is making arguments in a sense on your behalf. They lose, because perhaps they don't know all of the arguments they should be making or they don't articulate them the way the State does -- there's still stare decisis effect of those decisions on the States. Sonia Sotomayor: Well, there's two things that could happen. One is that if the State loses, then -- and it doesn't want to lose -- it passes its own law. Or if it wins, if the case is as stated below, it just lets the status quo go. I still don't understand what the long-term injury to the State is or could be. Stephen R. McAllister: Well, I guess again, and maybe I'm misapprehending, but the long-term interest is a -- is a decision, say in the criminal case, that says, no, this doesn't intrude on the State's sovereignty, is there as a matter of stare decisis. So if in a later case the State wants to in fact assert that this particular statute does intrude on our sovereignty, it's not that they can't necessarily raise the claim, but they will confront contrary precedent that the State never had a chance to -- to voice its opinion or its views at the time the issue was being adjudicated. Anthony M. Kennedy: Your underlying premise is that the individual has no interest in whether or not the State has surrendered its powers to the Federal Government, and I just don't think the Constitution was framed on that theory. Stephen R. McAllister: Well, Justice Kennedy, I don't know that I would say they have no interest, but I am -- I guess the premise I'm asserting is they do not necessarily get to assert the Tenth Amendment claim of the States. New York v. United States, for example, was a case where the State initially said we're not concerned about this regulation, and then changed its mind; and the Court in New York said States don't waive those Tenth Amendment rights; States can then -- can change its mind and bring a suit, and there's no indication-- Antonin Scalia: But it does -- it does assume, as Justice Kennedy said, that the reason that is there in the Constitution is only for the benefits of the States, and not for the benefit of the people in the States. So if a State chooses to give it away, the -- the individual has -- has no standing. You say it's third party, we're raising the States' rights. I think what the other sides is arguing; this is not a right of the States, it's a right of the individual to have the State take charge of certain matters and the Federal Government take charge of other matters. I don't see why that's any different from an Article I, section 8 claim. Stephen R. McAllister: --Well, and that's a conclusion the Court can reach. But what -- what the Petitioner's position essentially holds is that there's never a question of third-party standing for any claim under the Constitution, basically, not the kind I'm talking about; and that no claims are limited to certain categories of litigants. Antonin Scalia: There -- there's a question of causality, so some of them will -- will not be valid because you can't show that the -- that the State was coerced into doing something and therefore you can't show that the violation of the Constitution caused your injury. Stephen R. McAllister: And that's -- but you're talking now really the causality; that's an Article III inquiry. And again, what I'm trying to talk about is separate, the next step, the prudential third-party standing. And I think Petitioner's view is third-party standing is just out the window, whether it's separation of powers, Tenth Amendment, anything. John G. Roberts, Jr.: Thank you, Mr. McAllister. Stephen R. McAllister: Thank you. John G. Roberts, Jr.: Mr. Clement, you have four minutes remaining. Paul D. Clement: Thank you, Mr. Chief Justice. Just a few points in rebuttal. First of all, one reason not to carve out a special rule for commandeering claims is that not all commandeering claims are created equal. Mr. Dreeben raises the commandeering claim that has been litigated in the context of SORNA, the Sex Offender Registration Act. I don't know the details of that enough to know whether that's a valid commandeering claim or not, or whether there's a redressability problem in that particular case. But I can certainly imagine a commandeering case, a Federal statute that purports to commandeer local prosecutors to prosecute Federal crimes, where there would be no standing obstacle; and the problem is right now the lower courts aren't resolving the standing issue in the SORNA challenges based on a careful analysis of Article III standing, redressability or prudential standing, for that matter. They're resolving those challenges with a simple citation to Tennessee Electric and let's move on, and that's really what should stop. A second reason that you should not try to carve out commandeering cases as being somehow the residuum of the Tennessee Electric dictum is because Tennessee Electric says nothing about commandeering cases. It just talks broadly about Tenth Amendment claims. You know, we can disagree or agree; it's kind of hard to figure out what the nature of the claim was in Tennessee Electric. I don't think it was really much different from the claim that we're raising here, which is in Tennessee Electric they said, well, if the Federal Government gets to regulate power, what's left of State's traditional prerogative to regulate the price for power. Here is if the Federal Government can go in and prosecute you for putting vinegar in your neighbor's goldfish bowl, what's left of local law enforcement. I think they're very similar arguments. But whatever else is true, I just don't think Tennessee Electric limited itself to commandeering claims in any way that would allow you to say that Mr. Dreeben refers to the enduring force of Tennessee Electric. With all due respect, I don't think Tennessee Electric has any enduring force. The central holding of this decision was overruled in Camp. The further you go in the decision the less satisfying it is. If you go all the way to reading the Georgia Power case cited in footnote 27 as Justice Breyer has done, and you look at the role of consent of the States, it turns out in the district court opinion, that's in the merits section of the opinion. The Court's already held contrary, actually, to the holding of Tennessee Electric that the utility companies there had standing. So what you see is, you know what happens if you apply the legal interest test, you hopelessly conflate the merits and the standing question. That's kind of happened today in oral argument. That's a bad approach. The Court was right to get rid of it in Camp, and it should perfect the Camp decision by saying this sentence no longer survives. Two other minor points. One is on the Commerce Clause, I think Justice Alito shows why the Government was right never to make that argument below, but I do think it's important that if this Court says anything about the Commerce Clause issue, it doesn't somehow reinject it in the case in a way that would not allow us to argue that it has been clearly waived in the Third Circuit. The Government gets to confess air, it doesn't get to confess, oh, actually, we have a better argument to defend the statute that we've never raised before. Plain error should be a two-way street, and they should not be allowed to sneak the Commerce Clause back into the case at this late stage. Finally, there is no difference between the separation of powers case and the Federalism case. The best example of that is this Court's Free Enterprise Fund case. When it wants a case to cite for the proposition that the Executive Branch cannot waive or acquiesce in a separation of powers violation, because the separation of powers is there to protect the individual, what does it cite? New York against United States. Please reverse the decision below. John G. Roberts, Jr.: Thank you, Mr. Clement. Mr. McAllister, this Court appointed you to brief and argue the case in support of the judgment below, you have ably discharged that responsibility for which we are grateful. The case is submitted.

Warren E. Burger: We'll hear arguments next in United States against Timmreck. Mr. Geller, I think you may proceed when you're ready. Kenneth Steven Geller: Thank you, Mr. Chief Justice and may it please the Court. This case is here on a writ of certiorari to the United States Court of Appeals for the Sixth Circuit. The issue is whether a defendant is entitled to collateral relief from his conviction under 28 U.S.C. 2255 merely because the district judge failed to follow the formal requirements of Rule 11 of the Federal Rules of Criminal Procedure in accepting his guilty plea. We believe that under this Court's consistent interpretation of the scope of habeas corpus for non-constitutional errors, respondent was not entitled to Section 2255 relief as a result of this violation of the rule and that the Court of Appeals therefore erred in reversing the District Court's order denying the writ. The facts may be briefly summarized as follows.Respondent was one of 22 defendants named in a narcotics conspiracy indictment filed in the Eastern District of Michigan in May 1972. After extensive plea bargaining, respondent agreed to plead guilty to the conspiracy count of the indictment. In return, the Government agreed to drop the remaining 17 substantive counts and also agreed not to pursue an unrelated bail jumping charge against him. The District Court then conducted a Rule 11 proceeding at which it questioned respondent prior to determining whether to accept his plea. There's no dispute that the Court's inquiry at this proceeding fully complied with Rule 11 in every respect except one. Although the court mentioned that if respondent pleaded guilty he could be sentenced to 15 years imprisonment and a 5 -- and $25,000 fine. The court neglected to add that responded could all -- would also be subject to a mandatory special parole term of at least three years. Four months later, respondent was sentenced to 10 years in prison, 5 years special parole, and to a $5,000 fine. Now, respondent did not appeal his conviction nor during the following two years did he signal his displeasure with any other aspect of his plea in any way. In August 1976 however, respondent moved to vacate his sentence under Section 2255, alleging for the first time that the District Court had violated Rule 11 in it -- by failing to mention the special parole term at the time of his plea. Motion is set out at page 11 of the joint appendix. It alleges only that Rule 11 was violated. It doesn't expressly state that respondent was actually unaware of the special parole provisions when he pleaded guilty and more important, it doesn't claim that respondent wouldn't have entered the exact same guilty plea if the judge had notified him on the record of the special parole requirement. In fact, the motion doesn't allege that respondent was prejudiced in any way by a violation of the rule. And the same can be said for respondent's allegations in his memorandum in support of his motion which is set out beginning at page 14 of the appendix and the oral argument that the hearing on that motion which begins at page 18 of the joint appendix. No allegation of actual prejudice. Now, the District Court denied respondent's 2255 motion. The court acknowledged that it hadn't complied fully with Rule 11 in taking respondent's plea but it concluded that respondent had -- respondent hadn't been harmed in any way by the technical error and that he therefore was entitled to Section 2255 relief. The court noted that there were strong indications in the record that respondent had been informed by his attorney of the consequences of his plea prior to pleading guilty. But that even if he hadn't in light of all the factors involved in the plea bargain, knowledge of the special parole provisions wouldn't have influenced respondent's decision to plea guilty. The Sixth Circuit reversed and remanded with instructions to vacate respondent's conviction and to allow him to plead anew. The Court of Appeals didn't dispute any of the District Court's fact findings but it held relying primarily on this Court's decision in McCarthy against the United States that since Rule 11 had been violated, respondent was automatically entitled to withdraw his plea without regard to whether he was actually prejudiced by the defect or whether he had raised the Rule 11 violation on direct appeal or on collateral attack. Now, I think it would be helpful for me to begin my discussion by explaining the limits of the Government's submission in this case. We certainly don't contend that a defendant who pleads guilty is there ever foreclosed from ever attacking his guilty plea. Defendant has a number of adequate remedies. He can move to withdraw his plea before sentencing and under Rule 32 (d), withdrawal for virtually any reason is to be freely allowed at that stage. And after sentence has been imposed, the defendant may appeal his conviction and may of course raise any objections he may have to the plea taking procedure or to the plea itself. And even after the time for appeal has run and the conviction has become final, a defendant unquestionably may always attack his conviction collaterally under Section 2255 if the plea was involuntary or otherwise constitutionally defective. Our contention here is simply that a defendant who foregoes all of these remedies is not entitled to collateral relief from his conviction. Often as in this case, years after his guilty plea when all that he can show is that some portion of Rule 11 was not complied with when his plea was accepted. We believe that on collateral attack there must also be some showing of substantial prejudice to the defendant either in the sense that the Rule 11 error materially affected the defendant's decision to plead guilty or because for any other reason it would be manifestly unjust to hold him to his plea. This standard of collateral review of non-constitutional errors is one that this Court has frequently applied. And perhaps the case closest in point is Hill against the United States in 368 U.S. That case like this one involved a motion to vacate sentence under Section 2255 by a defendant who claimed that his conviction had been entered in violation of a rule of criminal procedure. The rule involved there was Rule 32 (a) which gives a defendant an absolute right to make a statement prior to sentencing. Although the court acknowledged in Hill that the right guaranteed to defendant by Rule 32 (a) was an important one and that the defect would've required vacation of the defendant's sentence if it had been raised on direct appeal, the court denied collateral relief, saying that the error was not a fundamental defect that inherently results in a complete miscarriage of justice. William H. Rehnquist: Mr. Geller, was there anything said in Hill about prejudice? I had read Hill to simply mean this is not the kind of thing for which you can have collateral relief, period. Kenneth Steven Geller: Well, the court could have decided Hill, I think, on the ground that, not having appealed, Hill was foreclosed from getting collateral relief. But it went on. It didn't go off on that ground. It went on to discuss what the requirements are for getting collateral relief for a non-constitutional plea and it set forth the standard that we rely on here which is that there must be a fundamental defect that inherently results in a substantial miscarriage of justice. William H. Rehnquist: But it -- is it because the nature of the fundamental defect is such that the defect will inevitably in every case result in a denial of justice or is it a question of prejudice case by case? Kenneth Steven Geller: I think that there must be a case by case determination. William H. Rehnquist: Is that the way you read Hill? Kenneth Steven Geller: Well, Hill says that on the -- for a Rule 32 error, the only remedy is a direct appeal. William H. Rehnquist: You just can't have collateral review on it for a Rule 32 violation no matter how badly you are prejudiced by it. Kenneth Steven Geller: Well, except, I suppose, in the situation of a change in law such as in the Davis situation. That made that to limited exception but otherwise I would agree with Your Honor. The court added in Hill that collateral relief as I said, is not available in that type of situation. And the same statements that the court made in Hill were repeated even more recently in the Davis case in 417 U.S. and again in Stone against Powell. In light of these decisions, we think it's rather clear that respondent's claim which as the District Court noted amounts to nothing more than the assertion that Rule 11 was violated when he pleaded guilty is not cognizable under Section 2255. William H. Rehnquist: But when you include Stone against Powell along with Hill and Davis, in Stone against Powell there was a clear claim of a constitutional violation that would, except for some other rule be cognizable on 2255, wouldn't it? Kenneth Steven Geller: That's right. There were other reasons aside from the scope of habeas corpus which led the court -- Stone against Powell not to grant the writ -- reasons that related to the exclusionary rule. Byron R. White: I take it then if the claim was inadequate assistance of counsel, you'd have a different view. Kenneth Steven Geller: Yes, that would be a constitutional error that -- assuming there was no procedural default which would prevent its being raised on collateral attack, we concede would be -- Section 2255 relief would be available. Byron R. White: Is there a procedural default? Certainly, pleading guilty doesn't waive inadequate -- Kenneth Steven Geller: No. Byron R. White: -- can it -- inadequate counsel claim, is it? Kenneth Steven Geller: I would assume not. Inadequacy of counsel claim has never been raised in this case. Byron R. White: So, what procedural default would bar a --inadequate? Kenneth Steven Geller: Well, I assume if the new counsel handled an appeal and decided not -- for whatever reason, decided not to raise inadequacy of counsel at trial on the direct appeal that might preclude habeas corpus relief later on. But that again -- Byron R. White: Not until they -- not if they took it back to the state courts and exhaust it? Kenneth Steven Geller: Well, when you're dealing with 2254 relief, there may be questions of comity but I think in Section 2255 that absence of -- Byron R. White: Well, if you've exhausted it in the state courts, you've exhausted it. Kenneth Steven Geller: That's right, but if there is cause for not raising the issue on direct appeal then there may be -- that may be allowable to raise the Section on 22 -- raise the claim on Section 2254 or 2255. But that of course is the rule in cases of constitutional errors and the court has always drawn a distinction between a constitutional and non-constitutional error as far as the availability of collateral attack. Warren E. Burger: What about the failure to inform? Assume a failure to inform the client before the Rule 11 hearing that the minimum mandatory was three years before parole could be considered, would the failure to inform the client of that be ineffective assistance of counsel? Kenneth Steven Geller: Well, I hesitate to answer that -- Warren E. Burger: On a whole record of this kind of (Voice Overlap) -- Kenneth Steven Geller: I would think not. Not as -- that's our argument here, essentially that what's important is whether the defendant would have pleaded guilty nonetheless. If he would have, even if he had been given this advice which he says he was not given, then we don't see how he has been prejudiced and in the absence of prejudice he's not entitled to collateral relief. Warren E. Burger: Well, the representation at least as the district judge construed it was that the represent -- that the defense counsel had represented that he had informed his client with all these elements, was that not so? Kenneth Steven Geller: That's correct. The District Court -- Warren E. Burger: And the -- is there in effect a fact finding that was so? Kenneth Steven Geller: That's one of the grounds we rely on. Byron R. White: But if -- he didn't testified that he informed him specifically in this -- Kenneth Steven Geller: No, that's correct. There are -- they -- Byron R. White: He just said, generally, his practice is to -- Kenneth Steven Geller: Well, there are two things that petitioner of course rely on. Byron R. White: But he had no specific recollection of advising this person of this particular issue. Kenneth Steven Geller: That's correct but although the District Court relied on two separate statements by defense counsel. One was a statement at the Rule 11 proceeding itself that he had advised his -- that he was -- of the view that his client was aware of the consequences of his plea. And then the second statement is the one that you just referred to Justice White, which is at the Section 2255 hearing a few years later when counsel said that it was his practice before allowing a client to plead guilty to advice that client of the consequences of the plea although he couldn't say whether in this particular case, two years or so having past, he had actually done so. But there were two separate statements by counsel that the District Court relied on in inferring that respondent actually knew of the special parole term. But that wasn't the only string to the District Court's bow and it's not ours. We also alleged that respondent would not have changed his plea from not -- from guilty to not guilty if he had been informed of the special parole term. The District Court make that finding also and we think that that finding which respondent has never challenged is amply supported by the record in this case. Warren E. Burger: Are there not a line of civil cases with respect to wills and to some extent, some of them notarial acknowledgments that years after the event where the notary or the witness to a will cannot have any -- and he says he does not have any personal recollection of the event but that his practice was never to sign a will unless he saw the testator sign it or never to take an acknowledgment unless the person personally appeared before him. That line of cases is that the testimony as to general practice is sufficient to carry the day. Kenneth Steven Geller: Well, I agree that -- Warren E. Burger: How do you apply that? Do you think that's equally applicable to a criminal? Kenneth Steven Geller: I think that it is of probative value that defense counsel stated at the Section 2255 hearing that it was his practice not to allow a client to plead guilty before making certain that that client was aware of the consequences of the plea. And I think it was certainly open to the District Court to take that into account than making the fact finding which we rely on here. Now, as I mentioned -- John Paul Stevens: Mr. Geller, before you go on, if I understand the Government's position correctly the District Court should not even have had a hearing because the allegations really weren't sufficient to raise it. Kenneth Steven Geller: That's correct. John Paul Stevens: Of course they did have the hearing here. And you've -- you attach weight to whether he would've pleaded guilty or not. There were a group of cases about 10 years ago on the question when there is no eligibility for parole in a failure -- I'm sure you've read some of those cases, failure to advice the defendant of ineligibility. Under your view, would that be ground for collateral damage? Kenneth Steven Geller: I think you'd have to engage in the same sort of inquiry we suggest here which is, that if the defendant had not been told of his ineligibility for parole. John Paul Stevens: Assume that, violation of Rule 11 (Voice Overlap) -- Kenneth Steven Geller: No, I don't say that there -- there would not be a per se rule. You would have to make a determination whether -- oh, excuse me, I am to assume that he wouldn't have pleaded guilty if he had -- John Paul Stevens: No, I just say, assume that he was not advised. Kenneth Steven Geller: Oh, assuming that he had -- John Paul Stevens: And therefore a violation of Rule 11. Kenneth Steven Geller: Yes, the Rule -- we -- you would still have to engage in the case by case analysis that we suggest here on collateral attack to determine whether that defendant if he had been told that he was ineligible for parole would've changed this plea from guilty to not guilty. I think that arose in a number of Seventh Circuit cases. Byron R. White: And if you say -- John Paul Stevens: So, we never put it off on that ground though. We didn't -- Kenneth Steven Geller: Excuse me? John Paul Stevens: And would you say that anything counsel tells him the judge needn't tell him even though Rule 11 requires it? Kenneth Steven Geller: Not when the question is -- has Rule 11 been violated. Certainly, Rule 11 requires the District Court to tell the defendant certain things, but -- John Paul Stevens: Yes, yes I agree there'd -- that'd be a violation but how about -- Kenneth Steven Geller: That would be a violation of Rule 11. John Paul Stevens: -- how about collateral attacks? Kenneth Steven Geller: On collateral attack, certainly it's exceedingly important what the defendant knew and not who told him in determining whether or not there has been prejudice in holding him to his guilty plea. Certainly it would be exceedingly relevant if -- although the District Court violated Rule 11 in not telling the defendant certain things his attorney told him that information, certainly. But, as I mentioned here respondent has never alleged that he wouldn't have pleaded guilty if he had known about the special parole term. And the District Court expressly found that the Rule 11 error had no effect on its decision to enter his plea. And this fact finding certainly supported by the evidence, respondent obtained the dismissal of 17 serious narcotics counts and a bail jumping charge by pleading guilty to the one count in this case and he unquestionably knew that his guilty plea could result in a sentence to about 15 years in prison and a $25,000 fine. I might also add in this regard that at the time the respondent pleaded guilty several of his codefendants were undergoing a trial in the eastern district of Michigan at which the Government was presenting devastating evidence against them, evidence that would've been, I think, equally probative of respondent's guilt. That also, I'm sure, entered into respondent's decision -- Byron R. White: Is that in the record? Kenneth Steven Geller: -- to plead -- yes, it is, during the Section 2255 hearing. Byron R. White: The devastating evidence? Kenneth Steven Geller: Yes. Well, actually, the court does make certain statements during the Rule 11 proceeding about how the trial was going on at the moment and either in that proceeding or in the Section 2255 hearing he does make certain statements about the overwhelming weight of the evidence that was being introduced at that trial. Thurgood Marshall: How did he know about -- Kenneth Steven Geller: Excuse me? Thurgood Marshall: How did the judge know about what's going on in somebody else's trial? Kenneth Steven Geller: The judge was trying that case. Thurgood Marshall: Oh. Kenneth Steven Geller: So, like the District Court in light of these factors, we think it's exceedingly improbable that that respondent would've changed his mind about the plea bargain if he had been informed that he could also be sentenced to a term of special parole which would not have any appreciable effects upon him unless he were years later to violate the conditions of the parole. Moreover, there's no manifest in justice in holding respondent to this guilty plea. As I just mentioned, respondent knew he -- when he pleaded guilty that he could be sentenced up to 15 years imprisonment. And his eventual sentence of 10 years imprisonment plus 5 years special parole is therefore no greater for practical purposes. It's substantially less than he was told he could receive. Even if respondent violates the conditions of the special parole and the parole commission determines to send him back to prison for that 5-year period he can't serve more than the 15 years in prison that he knew was his exposure when he pleaded guilty. Now, perhaps the most important reason in our view why respondent isn't entitled to Section 2255 relief as a result of this non-constitutional violation is that this is hardly a situation where as the court said in Hill, the need for the remedy afforded by the writ of habeas corpus is apparent. There's no reason why this Rule 11 defect couldn't have been raised on direct appeal. All the relevant facts relating to the violation are apparent on the face of the record. And respondent who had the advice of counsel should've been aware at the time of sentencing that the trial judge had neglected to mention the special parole term when the plea was taken. This is especially true I would think when a -- if a defendant's ignorance of the special parole term truly played a meaningful role in his decision to enter the guilty plea. There's no reason why a defendant such as respondent should be allowed to forego direct appeal and to wait several years to raise a claim such as this. Potter Stewart: It was a guilty plea? Kenneth Steven Geller: Yes. Potter Stewart: On a conviction basically. Kenneth Steven Geller: Now -- Potter Stewart: It used to be considered a little odd for somebody who had pleaded guilty and been found -- and had been convicted on the basis of his plea of guilty immediately to take an appeal. I guess it's -- there's no problem about that anymore, is there? Kenneth Steven Geller: Well, McCarthy was a case just like that. Guilt -- it was a direct appeal after a guilty plea. There's no bar to doing it if the violation relates to the plea taking procedures itself rather than some antecedent -- Potter Stewart: Well, is there any bar anyway? Kenneth Steven Geller: Excuse me? Potter Stewart: There's no bar anyway, I guess, anymore, is there? Kenneth Steven Geller: Well, a guilty plea waives any antecedent constitutional violations. Potter Stewart: But nonetheless, you can take an appeal. Kenneth Steven Geller: You can take an appeal although you won't be very successful, I would assume. Potter Stewart: And -- on many grounds. John Paul Stevens: There's a time problem too, he'd do it promptly. But, what -- does the record show when the defendant here first became aware of the special parole term? Kenneth Steven Geller: No, it doesn't. John Paul Stevens: So, we don't know whether he knew it before the time of appeal had run. Kenneth Steven Geller: Well, the fact is he was sentenced to a special parole term. So, he knew -- John Paul Stevens: I understand, but if it's in writing he may -- you know, he said documents are rather complicated to read in some ways. Kenneth Steven Geller: Well, he had the advice of counting -- assistance of counsel this time. If in fact he pleaded guilty because he didn't know anything about a special parole term and he never thought he would be exposed to one, it seems to me that he should've been curious about what it was when he was sentenced to it. John Paul Stevens: Well, but he didn't start to serve it right away. Kenneth Steven Geller: No, but he should've been aware of it at that point and if he thought he got sentenced to something greater than he had bargained for, I want to assume he would've raised it. John Paul Stevens: But you just said the record doesn't show whether he became aware of it until after the appeal time it ran. Kenneth Steven Geller: That's true, but he -- if he was aware of it at that point, presumably he would-- John Paul Stevens: But if he was, we don't know whether he was or not. Kenneth Steven Geller: That's correct. William H. Rehnquist: I suppose if one were sentenced to 10 consecutive terms in open court, he wouldn't start actually serving the 10th consecutive term, say of 5 years for 45 years. Kenneth Steven Geller: That's right but, presumably he should be aware at that moment if he's been given a greater sentence than he thought he was exposing himself to by pleading guilty. Now, the Court of Appeals didn't necessarily disagree with any of the ar -- many of the arguments that I've just made about the scope of collateral attack. In fact, the Sixth Circuit candidly remarked that the Rule 11 violation at this case -- in this case did not seem to rise to the level of a ?fundamental defect which inherently results in a complete miscarriage of justice.? Nonetheless, the court felt that respondent was entitled to relief because of the presumptive prejudice rule of McCarthy. The court read McCarthy as holding that a Rule 11 violation is per se prejudicial to the defendant and thus satisfies the Hill and Davis test. Now, we've explained in our brief why we think that the automatic reversal rule of McCarthy which was announced in the exercise of this Court's supervisory powers rather than as a rule of constitutional law may have outlived its usefulness especially since there's now a new version of Rule 11 in effect. But, whether or not some of the premises of McCarthy should now be reexamined and I don't think the court has to reach that issue in this case. We believe that the automatic reversal rule has no place in a motion to vacate sentence under Section 2255 where the sole relevant inquiry is whether the particular defendant's detention is unlawful. McCarthy, of course, was a direct a appeal and there's nothing in the court's opinion to suggest that every violation of Rule 11 constitutes the sort of substantial prejudice or a complete miscarriage of justice that would entitle a defendant to habeas corpus relief. In fact -- Thurgood Marshall: Mr. Geller, couldn't we maintain your position by merely saying the two findings that the District Court were enough and not get into the general rule of how far 2255 goes? Kenneth Steven Geller: I think you can but I think what you have to confront is what the Sixth Circuit held in this case which is that the automatic reversal rule that this Court promulgated in McCarthy has no application on collateral attack. I think you'd have to say, which is what we suggest the correct rule is, that on collateral attack, there is no such thing as presumptive prejudice. The defendant has to show that he has actually been prejudiced. Now, I think if the court adopts that -- Thurgood Marshall: That's alright but as I understand this party himself in the District Court said in so many words that he hadn't been prejudiced. Kenneth Steven Geller: He's never alleged that he has been. That's correct. Thurgood Marshall: He didn't. Well, isn't that enough? Kenneth Steven Geller: Well, except as I say, if he doesn't have to prove prejudice to be entitled to relief because of a Rule 11 violation, which is what the Sixth Circuit said. We think this Court should reject the notion that on collateral attack a presumptive prejudice rule should apply and that it should be up to the defendant on a 2255 motion to show actual prejudice which, as I agree with Your Honor, he can't do in this case. Now, this Court is well aware of the strong societal interest in the finality of judgments in criminal cases and while society may be willing to incur the substantial costs associated with collateral attacks in order to correct or -- errors of constitutional magnitude or cases where a prisoner has been grievously harmed and the writ is the only effective means of preserving his rights. We believe that a contrary result is clearly dictated in cases involving non-constitutional violations especially where those violations could've been raised on direct appeal. Since the Rule 11 error in this case didn't influence respondent's decision to plead guilty or otherwise lead to a complete miscarriage of justice we believe that respondent should've raised the technical violation on direct appeal or not at all. The interest of justice is certainly not served by allowing defendants such as respondent's unlimited time and a free option to undo their convictions by establishing a non-prejudicial omission on their Rule 11 inquiry. The Court of Appeals in our view therefore, erred in holding that respondent was automatically entitled to vacate his conviction under Section 2255. We submit that accordingly, this Court should reverse the judgment below. Thank you. Warren E. Burger: Very well, Mr. Geller. Mr. Mogill. Kenneth M. Mogill: Mr. Chief Justice and if it please the Court. At issue in this case is the continuing availability of Section 2255 relief to persons who have no other remedy available to them and were in custody in consequence of police taken without advice of the full penal consequences of their pleas. Also at issue is the standard of review to be applied in cases raising such claims. I think it's important initially to make clear that the statement of facts offered by the Government is inadequate and it does not fully represent the facts of this case. Warren E. Burger: Well, are we free to rely on the colloquy that's in the record, the (Voice Overlap) --? Kenneth M. Mogill: Certainly, and I would like briefly however, to point out to the court where the facts offered by the Government are insufficient. It is -- Warren E. Burger: But you don't contend that this transcript is inaccurate in any respect? Kenneth M. Mogill: Certainly not. In fact I'm relying on the transcript in pointing out to the court that at the time Mr. Timmreck offered his plea he specifically affirmatively stated to the district judge that he was not aware of the consequences of his plea. The district judge advised Mr. Timmreck that he was subject to a potential 15 years maximum incarceration. The district judge did not advice Mr. Timmreck that a mandatory special parole term of three years must be applied, if a custodial sentence were imposed, and the -- Warren E. Burger: Do you suggest that the district judge's finding that he was informed -- was not permissible under your representation that that was your practice to inform the client and -- but that you didn't have any independent recollection at the time? Kenneth M. Mogill: I don't think the district judge made a finding that Mr. Timmreck was informed. Warren E. Burger: Well, he in effect made a -- such a finding. Kenneth M. Mogill: I think he concluded that -- well, I think the report -- Warren E. Burger: He concluded that the -- that your -- that you had adequately informed your client. Kenneth M. Mogill: The important points here are two. One, regardless of whether I informed Mr. Timmreck of the mandatory special parole term, it is clear that at the time he offered his plea, he was not aware of it. He so indicated to the judge. And the second point that is important, and its part of the reasoning underlying the particular requirements of Rule 11 is that Rule 11 is designed to ensure that the adequacy of the record of voluntary plea appears from the four corners of the record of the plea and it does not require any fact finding outside that record in it. Warren E. Burger: When as you say he responded that he did not understand fully and the judge told him he was subject to a 15 year imprisonment, what was your obligation to the court at that time -- Kenneth M. Mogill: I think my obligation -- Warren E. Burger: -- to your client? Kenneth M. Mogill: I'm sorry, I didn't mean -- Warren E. Burger: What was your obligation to the court and to your client? Kenneth M. Mogill: My obligation was the same as that of the Assistant United States Attorney and both of us candidly apparently missed the fact that the district judge failed to advice him. Had I caught it, it would've been my obligation to advice the court that it failed to mention that a mandatory special parole term of at least three years and possibly up to life was to be imposed in the event of a custodial sentence. It would also have been the Assistant United States Attorney's obligation. I think that it's important for the court to note that both parties -- counsel for both parties inadvertently for the same reasons as the district judge inadvertently neglected to advice respondent of the mandatory special parole term but that in fact, that did occur and that respondent had indicated that he was not aware of the consequences. Thurgood Marshall: Didn't you have several days talking to your client? Kenneth M. Mogill: There were no problems in terms of communication with my client. Thurgood Marshall: What I mean -- you mean he forgot it for a whole lot of days? How long were you talking to him before he pleaded guilty? Kenneth M. Mogill: There is nothing in the record of this case indicating the time period involved in communication between counsel -- Thurgood Marshall: It was before he walked into the corridor. Kenneth M. Mogill: Certainly. Thurgood Marshall: And before you walked in the courtroom, you entirely advised yourself as to the law involved, didn't you? Kenneth M. Mogill: I have no present recollection. Thurgood Marshall: Didn't you? Kenneth M. Mogill: But the record indicates that -- Thurgood Marshall: Oh, well, don't you usually -- Kenneth M. Mogill: As the record reflects -- Thurgood Marshall: -- find out what the law is? Kenneth M. Mogill: -- that I indicated to the district judge that I do -- Thurgood Marshall: And that this time you didn't? Kenneth M. Mogill: I have no recollection whether I did. The important point is -- Thurgood Marshall: And if you did have a recollection, your client would be out of court. Kenneth M. Mogill: Not if my client didn't know regardless of whether he was advised by counsel. Thurgood Marshall: I said if you happen to recollect that you did tell him, your client would be out of court? Kenneth M. Mogill: Not necessarily. Thurgood Marshall: Why? Kenneth M. Mogill: Justice Marshall, I think the important point here is that regardless of whether he is advised by counsel the important cons -- the important inquiry is whether he was advised on the record at the time of the plea and whether he knew on the record at the time of the plea. The fact is he didn't know on the record at the time of the plea. He indicated as much to the district judge. The Government has never alleged and I don't take it to be alleging now that anyone's memory is conveniently, you know lapsed or anything like that and I -- as an officer of the court, I suggest that -- John Paul Stevens: Mr. Mogill, your statement or your conclusion that he did not know about the mandatory special parole term is based on his statement that when he was told of it -- it could be as much as 15 years in jail, he said I know it now. Kenneth M. Mogill: That's -- and immediately prior to that when the judge asked him, ?Are you aware of the consequences of your plea?? He affirmatively said, No. John Paul Stevens: Well, and you think that necessarily forecloses the possibility that he did know about the mandatory special parole term? Kenneth M. Mogill: I think it indicates to anyone reading that record that he was not aware of the consequences of his plea. John Paul Stevens: Of all the consequences? Kenneth M. Mogill: And the mandatory special parole term is a direct consequence. In fact, the Government concedes it to be a direct consequence of the plea. John Paul Stevens: Yes, but no, it doesn't mean he didn't know about any of the consequences of the plea. Kenneth M. Mogill: It -- I think it speaks for itself and whatever interpretations of the reader. John Paul Stevens: Alright, but anyway, that's what your -- William H. Rehnquist: Well, it's a strange colloquy to say for the -- this is -- for the District Court to say, Are you aware of the consequences of your guilty plea? And for the defendant to say, No. And neither the judge nor any of the two lawyers present say anything. Is that what happened? Kenneth M. Mogill: Again the record speaks for itself in that regard. William H. Rehnquist: Well, but is that all we have to go on? Kenneth M. Mogill: I believe that it is -- hopefully what the court will be doing in part in this case is addressing itself to the standard of review to the part -- William H. Rehnquist: Well, what I'm concerned of is not what this Court was doing but what the District Court was doing, what you were doing, and what the Assistant U.S. Attorney was doing. Kenneth M. Mogill: I think all the parties were interested in seeing that the Rule 11 proceeding was adequate. The district judge, I assume inadvertently neglected to advice Mr. Timmreck that a mandatory special parole term of at least three years and as much as life was involved. Counsel for the Government neglected to catch the error. William H. Rehnquist: Well, i can -- Kenneth M. Mogill: Defense counsel neglected to catch the error. William H. Rehnquist: Well, I can see that, but I gather from what you say that somewhere in the record there is a Q and an A. And the Q is from the district judge's, he says, Are you aware of the consequences of your plea? And the A is, No, I am not. Kenneth M. Mogill: The -- that's correct. William H. Rehnquist: And nothing further was said by either of the judge or the -- Kenneth M. Mogill: No. The next thing that happened was the judge informed Mr. Timmreck that he was subject up to 15 years. The judge did not say that if a custodial sentence was imposed for the violation to which he was pleading guilty, there must also be a mandatory special parole term of at least three years -- William H. Rehnquist: So this judge didn't look at -- Kenneth M. Mogill: -- and possibly up to life. William H. Rehnquist: The judge just didn't leave it hanging after your -- the client responded "no." Kenneth M. Mogill: No, but he did not fully inform Mr. Timmreck and in fact he misled him by failing to advice him of the mandatory special parole term. Potter Stewart: Well, Mr. Mogill, if the trial judge had asked a convicted defendant, "Are you aware of the consequences of -- Or a guilty pleading defendant?" Are you aware of the consequences of your guilty plea?" And defendant had said, "Yes, I am." That wouldn't have proved -- been any indication or any proof that he was in fact, was it? Kenneth M. Mogill: That's correct and again it goes to the underlying purpose of the rule to make a record at the time of the plea. Potter Stewart: And the rule imposes a duty upon the trial judge to -- Kenneth M. Mogill: That's correct. Potter Stewart: -- advice him whatever the response is, doesn't it? Kenneth M. Mogill: And regardless of whether counsel has advised him or not. Potter Stewart: Alright. He -- cause even if the defendant says, "Yes, I am." He might be quite misinformed about the consequences. Kenneth M. Mogill: That's correct or if he was -- even if he was accurately informed, the district judge has the same obligation. In fact -- Warren E. Burger: Have you ever raised at any stage or has it been suggested at any stage that there was ineffective assistance of counsel on your part? Kenneth M. Mogill: It has not been. Warren E. Burger: Did you recommend to your client that that was one issue that could be raised? Kenneth M. Mogill: I don't -- Warren E. Burger: Constitutional issue? Kenneth M. Mogill: I do not believe that that issue came up. I might point out to the court however that at the time the petition -- the 2255 petition was initially filed in this case, the Government conceded the applicability of a Sixth Circuit case, Wolak, and virtually conceded the merit of the 2255 petition. The argument the Government is raising today was filed in a supplemental -- it was first raised in a supplemental memorandum filed the day before or rather the day of the hearing. John Paul Stevens: Yes but Mr. Mogill, they conceded the applicability of that rule in the Sixth Circuit. It was not the rule on other circuits in the United States. Kenneth M. Mogill: No, this case -- John Paul Stevens: For example, it wasn't the rule in the Seventh Circuit. Kenneth M. Mogill: The -- of course. Thurgood Marshall: The Rule 11 doesn't put any requirement on the defense counsel at all. Kenneth M. Mogill: That's correct. The -- Warren E. Burger: Well, where does that obligation arise from? Kenneth M. Mogill: I'm sorry, which obligation? Warren E. Burger: The obligation of counsel to give the client full advice. Kenneth M. Mogill: I think as a part of counsel's general obligation to render effective assistance. Warren E. Burger: Is it a constitutional issue, effective assistance of counsel? Kenneth M. Mogill: Certainly. Warren E. Burger: So, it arises out of the relationship of client and counsel and linked with the constitutional Sixth Amendment right, does it not? Kenneth M. Mogill: Yes, the purpose of Rule 11, one of the purposes of Rule 11 though is to avoid this kind of inquiries, is to ensure that the record at the time of the plea reflects the defendant was fully advised and fully -- and made a fully knowing waiver. So, the kind of collateral inquiries that became involved in this case are unnecessary. John Paul Stevens: But-- Kenneth M. Mogill: If -- John Paul Stevens: -- one other feature, Mr. Mogill, just so we have it. Kenneth M. Mogill: Yes. John Paul Stevens: It -- in page 9 of the abstract, you were asked by the court at the plea hearing, "Are you of the opinion there's a factual basis for the plea?" And you said, "Yes." And then, "And that your client knows full well the consequences of the guilty plea might be?" "That's correct." So, you were of the opinion then that he was fully advised? Kenneth M. Mogill: Clearly, I had missed the fact that the judge had missed advising Mr .Timmreck of the mandatory special parole term. John Paul Stevens: Well, not necessarily because you could have advised him and you're statement would still have been 100% accurate. Kenneth M. Mogill: Right, but even if it was, it was clear that Mr. Timmreck had forgotten that or didn't know or hadn't paid any attention at the time he offered his plea. John Paul Stevens: Well, that's a matter of what we've talked about before. Kenneth M. Mogill: Yes. The sentence that was imposed in this case subjected Mr. Timmreck to a potential combined custodial and parole -- incarceration and parole custody of ex -- of an excess of 15 years. In fact, the combined sentence here subjected him to a possible combined custody of 20 years less 1 day and it -- that is so because of the unique nature of the mandatory special parole term. Mr. Timmreck was sentenced to 10 years in custody on his initial sentence and five years mandatory special parole. Because of the unique provisions of the mandatory special parole term, he could serve 4 years, 11 months and 29 days and if he violated on the last day, still be sentenced to 5 years -- the full 5 years in custody. Warren E. Burger: And you represented at page 9 when the court said to you, "Mr. Mogill, are you of the opinion there's a factual basis for this plea?" And you answered "Yes, I am." "And that your client knows full well the consequences of a guilty plea might be?" "That's correct." You were surely representing to the court there affirmatively, not by inference but affirmatively, that you had fully -- full well informed your client of the consequences of the plea. Kenneth M. Mogill: Oh, the record speaks for itself in that regard. Byron R. White: On the next page -- on that couple of pages, you took that back. You said that if you failed -- that you really didn't mean to represent that you remembered that he had -- that you had -- Kenneth M. Mogill: That's -- the statement to which you're referring to Mr. Justice White was from the hearing on the 2255 and yes, I would agree -- Warren E. Burger: That's two years later? Kenneth M. Mogill: That's correct. Warren E. Burger: At the time of the Rule 11 hearing, which is the fulcrum there, you -- it's perfectly clear that you represented to the courts that your client had been fully informed. And it does not do for me, individually, as a member of the court to have you say the record speaks for itself. Kenneth M. Mogill: Well, the only point I wish to make, Mr. Chief Justice, is that I have no specific recollection at this point in time what my conversations were with my client. Potter Stewart: Well, in any event, the Government, as I understand it, concedes that there was a Rule 11 violation in this case. Kenneth M. Mogill: Yes, it does. Yes it does. With -- Warren E. Burger: But this colloquy that I'm referring to conceivably might have at least raised the question in your mind whether you could appropriately continue to represent this man without letting some other counsel come in and raise the question of ineffective assistance of counsel which might or might not be a stronger case being a constitutional violation? Kenneth M. Mogill: That was certainly Mr. Timmreck's choice and he chose to retain me on the 2255 petition. At the time Mr. Timmreck was sentenced in this case he was not advised that he had a right to direct appeal. And it is also important to note in terms of this Court being fully advised of the facts that the Government below, not only initially conceded that the Sixth Circuit case, Wolak, controlled in the Eastern District of Michigan at that time. But also, the Government didn't allege that Mr. Timmreck would have continued with his plea had he been advised of the mandatory special parole term. The Government didn't allege that he deliberately bypassed his right to appeal. The Government didn't allege that there was an intentional delay, and the Government didn't allege that its ability to re-prosecute was in any way impaired by the passage of time involved here. William H. Rehnquist: Well, as of the time your client was sentenced, was there an obligation on the District Court in taking a guilty plea to advice the defendant that he had the right to appeal? Kenneth M. Mogill: No, rule -- Federal Rule of Criminal Procedure 32 (a) (2), to this day does not require a district judge to advice a guilty pleading defendant of a right to appeal. William H. Rehnquist: I would hope not. Kenneth M. Mogill: At the same time however, for the Government to argue that a direct appeal is an adequate remedy is somewhat undercut by the fact that there was no record -- that there was no likelihood that a guilty plea in person is in fact going to know of that remedy in time to make use of it. And it's that-- it's for that reason that it's significant to remind the court that 32 (a) (2) -- Byron R. White: Well, unless the defendant is entitled to it, unless his attorney advises him. Kenneth M. Mogill: That's correct. Byron R. White: Isn't it reasonable to infer that if there had been a dramatic difference between the actual sentence and the anticipated sentence, that that proposition would've been considered? Kenneth M. Mogill: Not necessarily. I don't like being in the position of suggesting that certain inferences should or should not be drawn. However, if the purpose of Rule 11 is what it plainly is to avoid extra -- to avoid colloquy outside of the record, I think that those kind of inferences have to avoided because they require speculation as to facts outside the record. There is nothing on the record to indicate whether or not Mr. Timmreck was advised of his right to appeal and whether or not he was advised of collateral relief, whether or not he was surprised at the length of the sentence. The fact is I think that if we're going to engage in inferences, I think there is a very inference that a person who had no criminal record before and who has just been sentenced to a very lengthy prison term is going to be very much taken aback by that and may not be in a position to think clearly about whether or not to request advice from counsel as to remedies until the initial shock wears off. And by that time, the time for appeal may well have passed. Byron R. White: Have there been cases holding that the failure to advice about this particular special parole provision is a violation of Rule 11? Kenneth M. Mogill: I think it's conceded by the Government. Byron R. White: That isn't what I asked you. Kenneth M. Mogill: The Sixth Circuit, the Ninth Circuit -- Byron R. White: The Government doesn't -- can't concede what the rule means. Kenneth M. Mogill: I'm sorry, Justice White. The Ninth Circuit, the Sixth Circuit, obviously, the First Circuit, and the Third Circuit, and I believe the circuits not only hold that but also find collateral relief available. John Paul Stevens: The Seventh Circuit agrees with you on this point. Kenneth M. Mogill: That's right, the point I was -- the finish to the answer was that the circuits which do not find collateral relief available also, I believe, unanimously agreed that this is a direct consequence of the plea to -- and that failure to advice would be a violation. They disagree -- Byron R. White: Of Rule 11. Kenneth M. Mogill: Of Rule 11. They disagree as to whether or not collateral review would be available. Lewis F. Powell, Jr.: Counsel, when the judge announced the sentence, exactly what did he say? Kenneth M. Mogill: He pronounced sentence of 10 years incarceration, 5 years mandatory special parole, and a $5,000 committed fine. Lewis F. Powell, Jr.: So at that point, your client knew about the mandatory parole. Kenneth M. Mogill: At that time those words had been uttered, yes. Lewis F. Powell, Jr.: Yes. Potter Stewart: Or whether or not he knew it was mandatory. Kenneth M. Mogill: Whether or not he understood the significance of it and -- Lewis F. Powell, Jr.: The judge said it was mandatory. Kenneth M. Mogill: That's correct. Lewis F. Powell, Jr.: Yes. Kenneth M. Mogill: I think the keyword to somewhat who is being sentenced his parole and the fact that this is a different kind of parole that applies only in drug cases and only since 1970 and does not apply in other circumstances in the federal system might easily escape the person who's being sentenced in terms of the significance and in terms of the differences between the mandatory special parole and traditional parole. Section 2255 exists to ensure the capacity of our legal system to provide substantive justice and to ensure a forum for releasing all cases of illegal restraint. It is a flexible remedy and as this Court indicated in language in its opinion in Davis there is nothing in the holdings of -- in the prior holdings of this Court to indicate that the availability of 2255 is in any way reduced where the allegation of illegal custody is one grounded in laws as opposed to the Constitution of the United States. I think that's an -- by way of background, that undercuts the Government's argument with respect to the non-constitutional nature of the argument here. Additionally, I think that it is important for the court to consider the role of Rule 11 in protecting the adversary system. That in contrast to a trial situation and a collateral attack after a trial, such as occurred in Davis, where there is adversary litigation as to numerous questions of law and where there is a full fact finding process, the likelihood of any one error being prejudicial or being fundamentally prejudicial is reduced. In a guilty plea proceeding however, where the charges are not disputed and where a person is convicting himself or herself out of his or her own mouth, an indi -- an error that fails to advice the defendant of an important consequence of the guilty plea assumes much more fundamental dimensions. When the additional fact that approximately 85% of the convictions in the federal system are the result of guilty pleas is taken into account, I think that the significance to the importance -- to maintaining the principles underlying the adversary system is enhanced. And it's for that -- taking those matters into account, I think that the Government's argument with regard to restricting the scope of collateral review has to be unpersuasive. I think that the Government's argument with regard to direct appeal being a sufficient remedy is further undercut by the fact that the Rule 32 (a) (2) does not require an accused to be advised of the right to appeal and in point of fact, Mr. Timmreck here was not advised of his right to appeal. And it is also important to note that the mandatory special parole term is a unique provision which operates very differently from traditional parole and can result in incarceration for the entire period of the mandatory special parole term even if the violation occurs on the last day. Also, that the risk of re-incarceration is not minimal. The statistics would indicate that between 35% and 45% of persons placed on parole are subsequently returned to prison for violations and that approximately 2/3 of those violations are technical and rather than being for commission of additional felonies. The Government's argument in this case that particular prejudice ought to be shown is similar to its argument in McCarthy that substantial compliance with Rule 11 was sufficient for purposes of direct appeal. The rejection of that argument in McCarthy, I think, applies with equal force here because as this Court noted in McCarthy, a violation of Rule 11 inherently prejudices the accused because it deprives him or her of the rule's procedural safeguards that are designed to facilitate the ac -- an accurate determination of the voluntariness of the plea. Similarly, the Government's argument that particular prejudice ought to be shown, I think would create a standard which is more difficult to administer than the objective standard applied by the Sixth Circuit here. It would involve the District Courts in hearings on the question of particular prejudice. It would involve the courts in -- it would be more time consuming in terms of judicial time. It would be more difficult to achieve uniform results and it would make it difficult to any defendant regardless of whether the defendant would in fact have continued with the guilty plea to meet the burden of proof. I think it would be con -- I would hope that the Government would concede that persons plead guilty for numbers of -- any number of reasons, some of which are beyond the comprehension of experienced counsel and judges. And that in these -- some circumstances, persons would not have continued to offer their pleas. The standard that the Government proposes is one which would make it difficult for all persons including them to sustain their burden of proof. An objective test would promote judicial economy by results being determined on the basis of the pleadings and it would provide an additional incentive not only to defense counsel and to government counsel on the basis of their general ethical responsibility, but by an additional incentive because of the standard -- Thurgood Marshall: If I understand you correctly, you just filed a piece of paper and say, "Judge Jones didn't advice me of the special parole," and automatically out. Kenneth M. Mogill: That's more -- Thurgood Marshall: Automatically, you get out. Kenneth M. Mogill: More or le -- well, more or less. Thurgood Marshall: Don't you need a little more than that? Kenneth M. Mogill: Prejudice is inherent a violation of Rule 11 for the reasons I've indicated and -- Thurgood Marshall: Well, you had a hearing here, didn't you? Kenneth M. Mogill: In District Court? Thurgood Marshall: Yes. Kenneth M. Mogill: Yes. Thurgood Marshall: Well, what are you saying that they're asking for more than that? Kenneth M. Mogill: No, what I'm suggesting is -- Thurgood Marshall: He didn't even ask for that one. Kenneth M. Mogill: There shouldn't have been -- had an objective standard been applied by the district judge, there would've been no need for a hearing. The pleadings -- the record of the case below would have entitled Mr. Timmreck to relief in a -- Thurgood Marshall: Your irony of a 2255 is you file of piece of paper and that's it. Kenneth M. Mogill: Depending on the circumstances. Where this has been a violation, that should be sufficient because the violation is one that is so fundamental to the dis -- to the defendants offering of a knowing and voluntary guilty plea. Thurgood Marshall: Well, don't you think the Government is not entitled to a hearing? Kenneth M. Mogill: If a rule -- if an objective standard were adopted, the Government would have an incentive to ensure that there would be no need for further litigation because the Government would have an additional incentive, as the Sixth Circuit noted in its opinion here to ensure that mistakes such as the judge and both counsels failed to catch here did not occur. Harry A. Blackmun: Mr. Mogill. Kenneth M. Mogill: Yes? Harry A. Blackmun: You don't cite Stone against Powell at all, do you? Kenneth M. Mogill: I do not. Harry A. Blackmun: Do you just dismiss the Government's reliance on that case? Kenneth M. Mogill: I think that I -- I read Stone v. Powell carefully and I don't think that the Government other than mentioning it in passing, is really relying on it in this case. I think their primary reliance is on Davis and on Hill. I think that -- Harry A. Blackmun: Well, they rely -- they mentioned more than once in passing. They cite it about six times. Kenneth M. Mogill: I think the facts and the issue involved in Stone v. Powell are sufficiently different dealing as they do with questions of state federal relations, dealing with the question of the exclusionary rule, dealing with the question and ultimately turning on the opportunity for full hearing in the state courts that in my preparation of my presentation, it did not strike me as a case that would involve itself in this Court's decision here. To the extent however, Justice Blackmun, that the question does arise, I think that the question of opportunity for hearing as being critical in Stone v. Powell is in some respect similar to the fact that here, there was no opportunity -- there was no advice of the right to appeal and therefore, there was no assurance that the defendant knew of his opportunity to have an immediate hearing on direct appeal. Byron R. White: Well, if the Government wins this case, wouldn't it also win the case where the defendant wasn't advised at all of the sentence and pleaded guilty, no appeal, collateral attack saying he wasn't advised of the sentence at all in violation of Rule 11? Kenneth M. Mogill: Obviously, that would depend in part on the grounds that the court -- you know, states in support of its decision. I think that if the -- depending on grounds that this Court were to chose for rendering its decision in this case, that if an -- if a subjective standard were adopted, such as the Government is suggesting, it is entirely possible that a person who was not advised of their penal consequences who for whatever reasons did not take an appeal and later challenged the -- their conviction but who in fact would not have offered a guilty plea maybe out the door even though as a gut matter, they should be entitled to relief. And assert one -- that is one of the reasons why the Government's position is -- John Paul Stevens: Mr. Mogill, Mr. Geller gave precisely the ac -- the opposite answer to that question when I asked it about the mandatory failure to advice about ineligibility for parole. He said there'd be a different case because there might be prejudice. At least that's what I understood him to say. Kenneth M. Mogill: There are obviously cases that -- John Paul Stevens: I think Mr. Justice White's example is even farther removed than that one. Kenneth M. Mogill: I think -- John Paul Stevens: So, I may be right that the court would rule that way, probably not the argument. Kenneth M. Mogill: The point is I think the Government's -- regardless of what the Government is saying here today, if this Court adopts the Government's proposed test, it is entirely possible that a person who is not advised of a mandatory -- John Paul Stevens: Just as I understand, is either -- if the plea is either involuntary or if it's fundamentally unfair, whatever the violation was, it was fundamentally unfair, then collateral attack is appropriate. And if you say there's no advice whatsoever about sentence and he gets put away for 20 years, that strikes me as being pretty unfair. Warren E. Burger: But -- Kenneth M. Mogill: I agree with that. John Paul Stevens: I think, well, you do. Kenneth M. Mogill: I also would urge on this Court that failure to advice a guilty pleading person that a direct consequence of his or her plea is a mandatory special parole year -- special parole term of three years to life also is a fundamental defect. Warren E. Burger: Mr. Mogill. Kenneth M. Mogill: Yes? Warren E. Burger: On the other hand, if the court said that based upon your representations at the bottom of page 9 to the court notwithstanding any other views that the Solicitor General might have about it, based on that there was a finding. The judge said, "I find on this record." There was a finding and that that finding is not clearly erroneous. Then, you wouldn't have any open door to the kind that you've been suggesting. Kenneth M. Mogill: If I understand the court's question, I believe that Judge Feikens' language is somewhat inappropriate for the reason that anybody -- Warren E. Burger: Well, he just said that he -- Kenneth M. Mogill: -- whether it's a judge or anybody else, is only speculating what the defendant has done. Warren E. Burger: He said on the basis of what you told him, "I find on this record." Kenneth M. Mogill: I understand that that was his language. I -- what I'm suggesting and I think that, in a concurring opinion in the Page case, Judge Borman from the Fourth Circuit says that -- he says, as it point out, I want to make known, that is that it's pure speculation what the defendant would've done. And for the judge to conclude that Mr. Timmreck would have continued to offer his plea is in fact a matter of opinion. It can't be construed as a finding of fact. And -- Warren E. Burger: Can the clearly erroneous rule apply to this situation? Kenneth M. Mogill: I don't believe that the nature of that statement by the judge is a finding of fact so that I don't believe that the clearly erroneous rule would come into play. Thank you very much. Warren E. Burger: Very well, Mr. Mogill. Mr. Geller, do you have anything further? Kenneth Steven Geller: Just a few things, Mr. Chief Justice. First of all, I didn't mean to mislead you Justice Stevens, in regard to my answer concerning your ineligibility for parole hypothetical. Our approach would be exactly the same. There would have to be an inquiry on col -- if it were raised on collateral attack into whether the defendant was actually prejudiced. Our approach would be exactly the same as the approach the Seventh -- you took as the member of the Seventh Circuit. John Paul Stevens: Right, but you concede, I understand -- at least I understood you to say that if he on such a collateral attack prove that he would not have made or enter the plea had he understood it, then you would agree that was fundamentally unfair -- Kenneth Steven Geller: Yes. John Paul Stevens: -- and the collateral attack would be -- Kenneth Steven Geller: That's right, but we're -- I didn't mean to -- John Paul Stevens: You didn't mean automatic, I understand. Kenneth Steven Geller: I didn't mean to suggest that it would be automatic. Secondly, I think that the notion that it's either not feasible or not seemly to inquire into prejudice when there's been a defect in a guilty plea proceeding and it's raised on collateral attack is rebutted by this Court's decision in Henderson against Morgan in 426 U.S. which was a case of a defective guilty plea proceeding. Everyone agreed that the defendant in that case had not been told about one of the elements of the crime to which he pleaded guilty but the court didn't stop there. It didn't inquire to see whether he might have had that information from somewhere else. Byron R. White: Oh, Mr. Geller, is that -- when you're talking about prejudice and whether he would've pleaded guilty anyway, are you talking about the time he was in court before the judge? Kenneth Steven Geller: Yes. Byron R. White: And so, its still automatic answer to you -- for you against the defendant if a week ago he was told about the parole term? Kenneth Steven Geller: No, that's correct. And you have to measure voluntariness by what he knew at the time he pleaded guilty or what he would've done at the time he pleaded guilty if he had been told what he now claims he should've been told. And subsequent events are only relevant, I think, in determining whether it's fair to hold him to his plea which is a separate sort of an inquiry although an equal ground for allowing collateral attack. The final thing I want to say is that Mr. Mogill made the statement a moment ago, I think in an attempt to show prejudice for the first time since this motion never alleged prejudice that his client could be in prison for longer than he was told or at least subject to supervision for longer than he was told. He can't serve more than 15 years because he got a 10-year prison sentence and a 5-year special parole term. Even if he began to serve his special parole term and after two or three years he violated it, he couldn't be returned to prison for more than 5 years of this special parole term. That's not unusual. Almost every defendant could make the same claim. John Paul Stevens: Let me be sure I understand you. If after four years of special parole he violates the parole, can he not then go to jail for five years? Kenneth Steven Geller: That's right, but he would only be in prison -- John Paul Stevens: So, he could serve more than a total of 15. Kenneth Steven Geller: No, he couldn't serve more. He could -- John Paul Stevens: Well, alright. Kenneth Steven Geller: -- under supervision for it, but I -- John Paul Stevens: But he could have 15 years of prison time -- Kenneth Steven Geller: Plus four years. John Paul Stevens: -- plus four years of parole. Kenneth Steven Geller: That's right, but that could happen to any defendant. Let's assume a defendant who pleads guilty to a 15-year felony, it's not a drug case. Let's assume we don't have a special parole problem and he gets 15 years and he's told he could get 15 years. He gets 15 years presumably no Rule 11 violation. After 10 years, he's paroled. He then begins to serve his 5-year parole term. After three years, let's assume he violates the conditions of his parole. The Parole Commission could send him back to prison for five years. So, that defendant also would serve 15 years in prison and be under supervision for a couple of extra years. No one's ever suggested that those sorts of nuances have to be explained to the defendant. Byron R. White: What you're saying is there's no obligation to advice about the consequences of violating a parole. Kenneth Steven Geller: No one has suggested that that's the case. Thank you. Byron R. White: Yet. Kenneth Steven Geller: Yet. Thank you. Warren E. Burger: Thank you, gentlemen. The case is submitted.

Earl Warren: United States, et al, Appellants, versus Henry Drum et al. Mr. Ginnane, you may continue your argument. Robert W. Ginnane: May it please the Court. On the essentially undisputed facts which I presented yesterday, the question here is whether Okalahoma Furniture Company is engaged in genuine private carriage. Felix Frankfurter: Before you move on, Mr. Ginnane, you pointed out one inadequacy from your point of view in the opinion of the District Court namely, that sufficient attention wasn’t made to some of the elements of control other than mere physical control. Is that the only insufficiency of the opinion in your view -- Robert W. Ginnane: No, we state -- Felix Frankfurter: -- after they review, not any legal deductions, but in their review of the basis on which the ICC ordered what it did. Robert W. Ginnane: Now we assume for the purposes of this appeal, that they sufficiently discussed the factor of Oklahoma's control over the transportation operations. What we think the court below failed to do was to pursue the alternative test as to whether -- as to who -- Felix Frankfurter: The alternative -- Robert W. Ginnane: Test. Felix Frankfurter: Test. Robert W. Ginnane: As to who was assuming the financial risks and burdens of providing the transportation. Felix Frankfurter: Is that the only -- the only inadequacy in considering the basis on which the ICC acts? Robert W. Ginnane: Yes, sir, that's all we urge. We urged yesterday that the test to be applied should be formulated in terms of the objectives of economic regulation of motor carriers. That one of the principal objectives was to encourage the development of a sound public transportation system by restricting, with exceptions, for higher transportation to authorized carriers. At the same time, the Act permits genuine private carriage. In realization of the fact that in some circumstances for some shippers, a private carriage provides genuine economies or other advantages. But normally, we think of private carriage as the situation where the shipper obtains separately the elements of transportation, the equipment, labor, fuel, and so on and by his own management and judgment puts them together into a transportation facility for the transportation of his own goods and at the same time, there are risks, inherent risks and disadvantages in genuine private carriage. There's the investment and equipment either by way of purchase or by lease. There's the problem of supervision of drivers scattered all over the country, the point at which Oklahoma encountered difficulty in its earlier operations. And there is the problem of getting a balanced movement, inbound and outbound and above all, there's the risk of non-utilization of equipment depending upon the fluctuations in business. But as long as the shipper is willing to assume those risks and burdens, then his private carrier operations present no problem under the Interstate Commerce Act, because natural economic forces will limit the extent to which private carriage diverts traffic from the public transportation industry. It's when we get into variations from what is clearly an admittedly private carriage that we need some kind of a realistic test. And we find that test suggested in this Court's decision in Silk v. United States in 331 U.S., in which this Court held that owner-operators and the facts of that case were not employees for the purposes of the Social Security Act. Now, of course that status of employee isn't necessarily the same for statute with different purposes, but we think Your Honors did suggest what the approach should be. John M. Harlan II: [Inaudible] Robert W. Ginnane: May I answer you this way. Under the so-called control test -- John M. Harlan II: [Inaudible] the ICC formulated test [Inaudible] Robert W. Ginnane: Well, I think that's a relative matter. May I answer you this way? Speaker: Under the control -- Robert W. Ginnane: Under the contest of who actually controls the various aspects of the transportation operation, you get infinite variations on those control facts, and indeed that's why we did not present the control -- the physical control aspect of the case to this Court, it's so much a fact question, varies from some situation of situation, we didn't think we should bring it here. The alternative test, we think, is of more generalized applicability who -- looking in the allocation of risks and costs and you can tell that by and large from un -- the undisputed contractual arrangements between the parties, who is taking the risks of performing a transportation service? Is the shipper taking those risks, or is the shipper buying transportation on a unit on a per mile basis at a predetermined cost to him? Now there are -- certainly there are going to be variations on that. But if your -- but if Your Honors sustain our contention, it will be an extremely useful generality to all concerned in the transportation business. Felix Frankfurter: Mr. Ginnane, I have difficulty or a greater difficulty, namely here the statute which puts contract carriers within the regulatory power of the Commission and the shipper's transportation facilities private carriers out of it, is that right? Robert W. Ginnane: That's correct, sir. Felix Frankfurter: Well, let me -- Robert W. Ginnane: For economic regulations. Felix Frankfurter: Pardon me. Robert W. Ginnane: For economic regulations. Felix Frankfurter: Surely here, the ICC can say in this case it would hold it's a private one, the next case we hold it it's contract carrier, just capriciously, can it? Robert W. Ginnane: Of course not. Felix Frankfurter: In other words, with my difficulty is we've got a problem of judicial review here. And if it's really an ad hoc determination in each case, what's the basis on which a District Court upsets the determination of the ICC? I can see if it's a so-called a fact question, we can draw on the general consideration, there must be some basis. It can't be just capricious. It can't be drawn out of the blue, but if it is a -- or shall I say a circumstantial a matter, the variations of various diversities in the permutations and combinations of differences in items, then we've got a problem on businesses of the District Court to overturn. There must be some guiding basis on which it can say the order shouldn't stand, it can't just say, the order shouldn't stand because we as determiners of the fact to decide differently. Robert W. Ginnane: The District Court could have held it -- could have decided in this case depending upon the facts that -- no, the Commission was wrong in fact, that Oklahoma -- Felix Frankfurter: (Inaudible) Robert W. Ginnane: That Oklahoma was assuming the burdens and risks of engaging in transportation. Felix Frankfurter: Well, it can do so if there's no basis for the finding of the Commission the other way. If there's a contested cont -- if there is a contest on what can be found then certainly the District Court must follow to the finding of the Commission and we've got a problem what our scope of review is. I'm merely suggesting that it can't be left at large to say each case is a case by itself. It must be a case by itself with reference to something. Robert W. Ginnane: So that we can apply a consistent and nondiscriminatory pattern. Now, the language that Your Honors used in the Silk case which we think provides the guide here and I quote, “The Social Security agency and the courts will find that degrees of control, opportunities for profit or loss, permanency of relation, and skill required in the claimed independent operation are important for decision. No one is controlling nor is the list complete,” in other words, if we're to look at the total situation, including the risk undertaken and who is undertaking the risk to find the economic reality. Now, turning to these arrangements here, under these contractual arrangements, Oklahoma -- between Oklahoma and the owner-operators, each owner-operator provides a tractor which he drives himself except in unusual circumstances for both the use of his vehicle and for his services as driver. The owner-operator is paid on a mileage basis, strictly on a mileage basis for transportation actually performed. The owner-operator bears the cost, the investment, and the vehicle, the operating expenses and the entire risk of the non-utilization of equipment. Now the separate leasing and collective bargaining agreements seemed to say that the owner-operators are separately selling their services and the use of their equipment, but the under like -- underlying reality is brought out by two contracts in this record. First a per mile rate, strictly a per mile rate, the owner-operators received for the use of their equipment is to be compared with the minimum or overhead charge plus mileage which characterizes all commercial renting of vehicles whether one of us goes to rent an automobile from a drive-it-yourself organization or to rent big truck tractor. Those organizations simply will not rent on a straight per mile basis and take all the risk of the car or the truck sitting around. Secondly the per mile rate at which the owner-operators are compensated for driving, is to be compared with the weekly salary plus mileage, which Oklahoma pays the drivers of the tractors which it owns. The economic reality is that the owner-operators by assuming the risks of transportation are selling transportation to Oklahoma at a predetermined cost per mile for such transportation as is actually performed. And this predetermined cost consists of the mileage payments to the owner-operators for the use of their vehicles and for their services plus the readily allocable cost of social security which is measured by the salary payment by the driver -- payments made to the drivers, liability, insurance and the vacation benefits. We think on those facts, the owner-operators are contract carriers and that Oklahoma is not engaged in private carriage. Speaker: (Inaudible) Robert W. Ginnane: 11 contract carriers. There is nothing in the record to suggest that they are acting in concert. Now, I'd like to dis -- to characterize briefly the various elements on which Oklahoma relies for a contrary conclusion. Most of the factors of the -- William J. Brennan, Jr.: The -- Robert W. Ginnane: Certainly sir. William J. Brennan, Jr.: Mr. Ginnane, in -- isn't there some element of combination? Isn't there effective bargaining agreement involved here? Robert W. Ginnane: Yes. In the collective bargaining here, the owner-operators are dealt within a separate appendix somewhat as they were in their agreement involved in the case Your Honors had last term, the Oliver case. It's a separate specialized treatment in this -- in an appendix effected by the agreement. It appears in the record at -- William J. Brennan, Jr.: There's a treat in this individual thing? Robert W. Ginnane: This separate appendix appears in the record at page 142 and as to how they're characterized it says, the company has heretofore had certain truck drivers operating under separate contracts which contracts are to be abrogated in a new classification of truck driver employees is hereby created known as truck drivers and maintenance men and this agreement involves only such employees. And then it contains specialized provisions. For example, under the general agreement, the regular salaried employees become entitled to a vacation benefits if they work at least 1900 hours in the period. As applied to these owner-operators, they become entitled to vacation benefits if they had driven at least 75,000 miles. In other words, the separate appendix provides special treatment for the owner-operators. Felix Frankfurter: Mr. Ginnane, while we're on that point, may I ask you, sir, if these men are not truly employees of Oklahoma, then have they any right to bargain collectively with it under the Labor Acts and would not it be a violation of the anti trust laws for a conjures of independent contractors to bargain with one as an employer? Robert W. Ginnane: Wasn't that, as I recall, sir that was pretty much the problem before this Court in the Oliver case last term. And Your Honor dissented, as I recall, on the ground that they were so clearly at least under the facts of those case, you thought they were so clearly independent employees that they just didn't belong under the -- in collective bargaining under the National Labor Relations Act. The majority of the Court, as I recall, in effect held that the relationship of these owner-operators to the overall activities of the employer, perhaps in competition would straight salary employees was such that it was an appropriate subject for collective bargaining notwithstanding the possible application of the state antitrust law, in that case, the Ohio law. Felix Frankfurter: As a general proposition, isn't it true that conjures of independent contractors do violate the antitrust laws if they seek to bargain through the force of their combined weight with some customer? Robert W. Ginnane: In the face of this Court's recent decision in the Oliver case, I would be reluctant to say so. That involved the state antitrust law, but perhaps it would carry over to the federal law. I don't think I can say so in the face of that opinion. Felix Frankfurter: Didn't that opinion hold that those people were employees? Robert W. Ginnane: The majority opinion did not discuss the precise question for there -- to be treat -- or to be categorized as employees or independent contractors. Rather, it's held that the basis on which they were treated by the employer or the employers was sufficiently related at least in terms of competitive relationships to the treatment of the straight salaried employees that it would an appropriate subject for collective bargaining, but without purporting to define whether they were employees or independent contractors. The most of the factors on which Oklahoma has relied at one time or another to indicate that this is true private carriage, our factors which are equally applicable to -- and admitted even to a typical contract carrier operations. For example that Oklahoma determines when and where the vehicles go and determines the order of loading. That's the characteristic of the contract carriage in which a contract carrier in terms of the statute, statutory definitions dedicates equipment to the exclusive use of a shipper. Now, the provision that in the equipment leases that Oklahoma shall have exclusive use of the equipment is a common aspect of legal contract carriage. The fact that Oklahoma assumes responsibility for seeing that there's compliance with ICC safety regulations simply begs the question, because those obligations, those safety obligations are imposed upon whoever is in fact engaged in transportation either as a contract carrier or as a private carrier. The fact that Oklahoma retains responsibility for cargo loses doesn't prove anything because neither the Interstate Commerce Act nor the ICC regulations require a contract carrier to assume responsibility for cargo losses. Finally, they continue to suggest that it's significant that they retain the right to hire and fire the owner-operators as drivers. By which I take it, they mean, that they can hire and fire them and still continue to use the tractors. Well, that -- that just doesn't stand up because the lease agreement covering the tractors is terminable upon 30 days notice by either party. And in addition, since under that lease agreement, Oklahoma doesn't obligate itself to give any owner-operator as much as one pound of freight. It may well be void to run enforceable for lack of consideration or lack of mutuality. That agreement is worth reading carefully, we submit. Our problem is how to draw a practical line between bona fide private carriage and transportation for a hire which is disguised in various leasing arrangements. We think the lines should be drawn right here that there can be no such thing as bona fide private carriage where the shipper is obtaining transportation on a predetermined mileage basis from owner-operators who are assuming all the risks of the transportation business. John M. Harlan II: Is there any suggestion here that this arrangement was prompted by a desire to avoid jurisdiction of the ICC? Robert W. Ginnane: We are not suggesting improper motivation upon bad faith on the part of the appellees. We take the case as an honest difference of opinion between them and the Government as to what refers the line between a private carriage and contract carriage. There's nothing in the record that suggests bad faith or improper motivation on their part. Felix Frankfurter: If he -- is there anything in the record or arguable from the record which would explain the economic impulse to this kind of an arrangement as against a garden variety of the private carriers? Robert W. Ginnane: This -- well, this one thing that prior to 1952, Oklahoma was engaged in obviously bona fide private carriage with vehicles which it owned and with salaried drivers. And the record indicates that they stopped that and switched to these leasing arrangements when they discovered that they were being defrauded by their drivers particularly on the long haul trips through the improper use of company credit cards to the extent of about $27,000. That appears in the record and that it -- and it was at -- it was at that point that they first went into the leasing arrangements which were held by the Supreme Court of Arkansas to be contract carriage on the part of the owner-operators, and that in turn apparently led to the draft of the second set of contracts which is involved in this case and which are still on effect. Charles E. Whittaker: Mr. Ginnane, as I understood your argument, you say that there can be no private carrier relations here if the known -- the costs are fixed and known on the mileage basis and the lessor of the leases -- the vehicles assumes all the risks. Now, do you limit that to a situation where the vehicles are leased from the same persons as hire their services to drive them or would it make a difference? Wouldn't the same cost be known if the leases were from some independent truck leasing company, and then these men merely hired their services, wouldn't the claim cost be known? Robert W. Ginnane: No, sir. Charles E. Whittaker: They would not? Robert W. Ginnane: Because if you or I go to one of these big truck rental companies, they will not rent to us, a big truck tractor on just so much per mile, because for all they know, we may have it sitting around our yard two-thirds of the time. They will insist upon a certain minimum or overhead amount, plus the mileage. Charles E. Whittaker: That's the common practice. Robert W. Ginnane: That's right. Charles E. Whittaker: Not legally required it. Robert W. Ginnane: Oh no, not legally require it. It's the only way they can -- it's the only way where they can survive financially. Charles E. Whittaker: But if some truck leasing company deviated and did lease on a mileage basis, and then certain drivers hired their services independently, would not the same fixed mileage cost that you complain of exist? Robert W. Ginnane: Certainly, but do we -- well, but we would have no basis for complaining there because in that situation, the shipper is getting these ingredients from separate sources and he's putting them together himself. Charles E. Whittaker: Your complaint -- Robert W. Ginnane: And if he's able to get them on such a basis that he can end up with a known predictable mileage cost -- Charles E. Whittaker: Your complaint then is that really because they've gotten both the vehicle and the driving services from the same man -- Robert W. Ginnane: Well, that's where -- as a practical matter sir, that's how these cases and these problems arise -- William J. Brennan, Jr.: But your -- Robert W. Ginnane: Case after case. William J. Brennan, Jr.: Your position doesn't depend, as I understand it, on whether or not these owner drivers are employees. Robert W. Ginnane: No. They might be employees for some purposes, perhaps for the Social Security Act or -- William J. Brennan, Jr.: But as a practical matter, your point is that the combination always goes with this arrangement, that is driving services and the vehicle owned by the drivers. Robert W. Ginnane: That's right. That's the practical thing we had again and again in enforcement. And as here, the -- with the shipper trying to -- trying to get it on something like a mileage cost with the risks being taken by the owner-operators. Now this Court can't solve all the problems of transportation in this case, but it can solve one big one, by drawing a realistic and practical line between bona fide private carriage and by -- and the for hire transportation which increasingly has been carried on under a variety of leasing arrangements suggested by (Voice Overlap) -- Felix Frankfurter: By bona fide, you mean objectively determinable. Robert W. Ginnane: Yes, objectively as we can. We do not claim to be infallible. Felix Frankfurter: No, but you -- when you introduced the word bona fide, you're going to make a question of motivation as you call it. Robert W. Ginnane: I mean, bona fide in this -- in a genuine economic sense of assuming the risks of providing a transportation service and I should defer the rest of my time to Mr. Rice -- Felix Frankfurter: I suppose -- Earl Warren: You may. Felix Frankfurter: -- a shipper may sue astuteness, get on this side of the line that became private and contract carriage as much so as a taxpayer can get on this side of a tax line so he may have in mind the difference in dollars and cents. Robert W. Ginnane: I have no allusion that in this or any other litigation, are we going to put an end to the tough borderline cases. Felix Frankfurter: Alright. It's important in view of the fact that you answered Justice Harlan earlier, there's no suggestion on the part of the -- on the part of the Government that this is a cunning device to get -- to find a loophole in the law. That isn't -- you put that out of consideration. You've said that no matter how bona fide an arrangement they may be, there is a line to be drawn legally speaking between contract and private carriers and that line must be observed no matter what -- high minded or economically justifying purposes there may be. Robert W. Ginnane: As Your Honor suggested the problems we frequently have are under the tax loss, thank you. Earl Warren: Mr. Peterson. Oh, you're with -- Roland Rice: Mr. Rice. Earl Warren: You're -- Mr. Rice. Roland Rice: Mr. Chief Justice, may it please the Court. The two significant elements in highway transportation are the vehicle and the driver. And I think that in any consideration of the problem here, we must constantly keep that in mind. The control test, so-called which the Court examined, was one way in which the Commission looked at the facts before it, but our quarrel with the Court is that it relied wholly upon the control test and did not look at the second test or the second body of facts or situations which was before the Commission, namely, what has been called the risk of doing business. And regardless of what maybe the result of applying the control test, we think that in this particular situation, the risk of doing business test is finally the more important in determining the status of these owner-operators here. And we think that the Commission really relied upon that evaluation and we think it is the important evaluation to be borne in mind. John M. Harlan II: What in practical -- every practical sense was the difference between what happened before and after this arrangement except the title to these trucks was put in the driver? What's the essential difference between the full employee situation which you wouldn't attack initially and what the company did for the reasons that the District Court found that they did? Roland Rice: Well, I think there is no difference in terms of service received by the company and the company got transportation service. John M. Harlan II: Is there anything more than title involved in the -- in between the two arrangements where the trucks were? Roland Rice: Not anything basic insofar as that concept of risk of doing business is concerned, no sir. John M. Harlan II: Either looking at it from the stand -- economic standpoint or from the control standpoint? Roland Rice: No. We think that there are in this connection some significant facts that ought again to be emphasized, one, the lessee, Oklahoma Furniture had imposed upon it no promise, no obligation to use these owner-operators a particular mile, nor to give them a particular volume or tonnage of traffic. It was absolutely none guaranteed. A further consideration is that there was given to certain employees who drove the owned vehicles of Oklahoma Furniture Company, a guarantee of six hours pay per work -- per work day, but there was no such guarantee through the owner-operators so that if the regular employees report, they get a six-hour pay compensation, but if the owner-operators report and don't do any work, they won't get anything at all. That goes it seems to me, to constitute a very important fact in showing that the real risk of doing business here is upon these owner-operators. Now, within the objectives of the National Transportation Policy, the conference which I represent has a tremendous stake in this case as was pointed out by Mr. Ginnane yesterday when he talked about the economic aspects of the case. Those objectives in this policy are the developing, the coordinating and the preserving of a national transportation system adequate for the needs of commerce and the defense of the United States. Our carriers, our general commodity carriers are a part of that system, and that policy indicates clearly that the Commission should seek to develop say adequate and economically sound transportation companies as parts of this system. It is our view that the decision of the court below threatens the achievement of these objectives of the National Transportation Policy by endangering the traffic which our people normally might get. From the very fact that whether the intervener is here, supports our view in this regard because they too have desirable traffic which if this type of arrangement is proper can be channeled away from the regulated carrier whether it's common contract or for that matter whether it is the common carrier railroad system of the country. This effort, we think, is merely symptomatic of a problem in several cases cited in our brief. If you would take a look at the Stickle case which is in the Tenth Circuit Court, you will find that a lumber, an important commodity, is there involved. In Pickard, which came from the Western District of New York, we'll find that furniture is involved. In the Lamb case which again came from the Tenth Circuit, we will find that wheat was moved by a somewhat similar device in one direction and groceries in the opposite direction. In the La Tuff case, we will find that air cooling equipment was moved and also furnace fittings. We're really talking here about very significant and important traffic, so that what is to be preserved in promoting this national transportation system is tremendously important in terms of economics and traffic. Felix Frankfurter: But to get -- to become more particular rather than these large considerations, I didn't quite understand your reply to Justice Harlan. If I did not misunderstand his question, it was, what difference was there between an arrangement which concededly was that of a private carrier -- carriage and this, except but for the title in the vehicle. You said there wasn't any. Roland Rice: Well, perhaps I didn't catch the whole import of his question. Of course, what did happen there, Mr. Justice Frankfurter and I hasten to correct myself if I didn't properly construe the question is this, that by this change, the company, Oklahoma Furniture Company was relieved of the risk of doing business itself and I certainly wanted to be understood that way and these risks of doing business, we believe -- Felix Frankfurter: He asked specifically was there any other difference except the change in the title of the vehicle and you said no. Roland Rice: Well, I possibly misunderstood the question, Your Honor, and I want to modify and correct my answer by what I said in response to your question, Mr. Justice Frankfurter. Insofar as the service is concerned, I don't think there was any real difference. John M. Harlan II: What risks were shifted to the carrier other than those incident in the transfer of title that were not in the company's -- not at the risk of the company before in the -- on arrangement? Roland Rice: Oh, the risks of making the transportation fail. In the first place, the company did not have to buy the vehicles and then there was a question of whether or not it would be an economic enterprise to have the company hold these vehicles when the vehicles were not actually being used. Now, that risk of making money on those vehicles and to be able to replace the vehicles upon their being worn out depends upon how much the vehicles are used over a period of time. Hugo L. Black: I suppose -- Roland Rice: You have -- Hugo L. Black: I suppose probably the risk that the same change would take place if a merchant had a big building, and he was bearing -- paying taxes, keeping it up, keeping it in his business. He transferred the title to somebody else who had to do those things. Roland Rice: Those things would have to be done by somebody. Of course in this instance -- Hugo L. Black: And some loss or profit is going to come out of it. You're saying is that, as I gather it, that Oklahoma Furniture Company gave by reason of this device to take no risk of law in cases of loss of operating -- operating, it is the same, but just the risk of profit that can get a good enough contracts. Roland Rice: That's right and then there are these elements to be considered. There is maintenance of these vehicles and this -- Felix Frankfurter: (Inaudible) -- Roland Rice: Pardon me? Felix Frankfurter: I would just say upkeep. Roland Rice: Upkeep. Gas and oil and the non-use and if I misunderstood the question, I do want to add that these things would have to be done if these vehicles were the vehicles of Oklahoma Furniture Company, all the maintenance and the repair, and the furnishing of gas, oil and so on, would have to be borne by Oklahoma Furniture, but as soon as they transferred over to the other people, all these costs, not just the risk of loss or gain from operation but these costs are automatically taken away from Oklahoma Furniture and put over upon the owner-operator. Hugo L. Black: The difference in renting -- driving himself and having your own car and having the basic cost of repairs, isn't it? Roland Rice: That might be very considerable -- Hugo L. Black: (Voice Overlap) -- Roland Rice: -- very considerable difference. Well, the real -- the real question here, Your Honors, as we see it is whether the transportation conducted -- as conducted is transportation for hire or private transportation and an important consideration here as is seen by the Court in the Le Tuff case mentioned in our brief pages 18 and thereafter, that is a decision of the District Court in Minnesota, is I think quite relevant. The Court there said, where one's object in the transportation of property on public highways is to earn compensation for the use of his equipment and his services, he cannot evade regulation by execution of the lease -- of leases or other agreements. And we think that that principle is applicable here as it's also applicable as stated by the Court in the B & C Truck Leasing case which comes from the Tenth Circuit, it's a 1960 decision and which we rely upon in our brief, and which says that where -- well, first of all that the Act is highly remedial in nature. And that it should be liberally construed, and that its terms are sufficiently broad to reach all those who are in substance engaged in the business of transportation and it is our assertion here that these carriers, these owner-operators by furnishing both the vehicle and the driver service are engaged in the substance of transportation and we think that the decision of the Court in that case is right in holding when those two are put together. As they say, when the acts of all are linked together as integrated parts of procedure through which property is transported interstate commerce such acts themselves become unlawful. Thank you very much. Earl Warren: Mr. Peterson. William L. Peterson, Jr.: Mr. Chief Justice, may it please the Court. There are several material facts that I don't feel have been brought out and I'd like to do so at this time. First of all, Oklahoma Furniture Manufacturing Company manufactures low cost furniture. It is the cheapest furniture that can be purchased in the industry and that type of business, that type of manufacturing is extremely competitive, the most competitive of the industry. Now, Oklahoma charges for this furniture based on a zonal basis. And the -- the zonal base or the zonal price for the furniture is not dependent upon the distance of the place of sale from Guthrie, Oklahoma. That's dependent more upon the competition within the area. Now, Oklahoma has always tried to be and we feel it has always been a private carrier. The reasons that it has been a private carrier because this is light bulky cargo, hauling furniture and it's undesirable from a for-hire carriage standpoint and there is only one carrier, the record reflects that there is only one carrier which hauls from Guthrie uncrated furniture and this carrier goes only west. Now, the reason that the crating is extremely important is that this is inexpensive furniture and the cost of crating remains the same, so therefore the cost of crating furniture, if Oklahoma had the haul crated, would make it extremely high. In 1952 when this lease arrangement was changed over, the company -- and the company counsel submitted the lease agreement to the Interstate Commerce Commission representative in Oklahoma City and he made suggestions to the lease arrangements which were complied with, and then that lease arrangement was put into effect. After Arkansas declared in the action which has been mentioned that these drivers were contract carriers within Arkansas, Oklahoma Furniture through its Vice President, Mr. Walker, and the company counsel again went to Fort Worth this time to talk with the Interstate Commerce Commission representatives there. And the record shows that at that time, it was suggested that this arrangement was wrong because Oklahoma Furniture didn't have control and that these people weren't drivers or weren't employees. And therefore, the present lease arrangements were drawn in our effort to make these men employees of the company. Now, under this -- under this lease agreement, Oklahoma obtains the complete right to use that truck, and it has a right to hire and fire the drivers independently of the lease agreement. Under the union contract, of course, these men aren't treated as employees. After this, the change in the operation was substantial really because Oklahoma provided -- after that provided workmen's compensation, social security, it gave these drivers vacation benefits and military service benefits and things of that nature. And therefore, we feel that these men have been made employees. If it please the Court, I'd like to now talk just a little bit about this aspect of control. Mr. Ginnane stated that he was making no issue as to this control but you'll find on page 17 of their brief in Footnote 8, where it states in this appeal, we do not challenge the District Court's conclusion that the evidence did not want a finding that Oklahoma lack control of the details of the operation nor do we argue as to whether the court below gave too narrow meaning to the Commission's control test. We assume, for present purposes that the court below correctly apply that test as relating only to the operational aspects of the transportation. In other words, what Mr. Ginnane is saying in his brief and before you is that he admits control, but he admits upon his terms. The Court in this case said that Oklahoma directed, dominated, and controlled, (1) the transportation of its products, (2) the equipment concerned therewith, and (3), the personnel concerned therewith. In other words, this is Oklahoma's operation as a private carrier and not the operation of these people as contract carriers. Now, we don't feel that Mr. Ginnane has the right to assume things about the District Court's opinion which was not there. Now, the District Court arrived at -- arrived at each conclusion and decision in this case based upon all the facts and circumstances surrounding the transaction together with the actual practices there under. And it quoted from the Commission decision of H.B. Church Truck Service Company Common Carrier application. The question as to who has a right to control and direct must be answered in the light of all the facts and circumstances surrounding the transaction between the carrier and shipper and of the actual practices in the conduct to the operation there under. No element of such facts and circumstances is by itself controlling. Well, if the Court did which I'm sure that it did and that the States did, examine all the facts and circumstances surrounding the transaction which currently includes these methods of payment then it just as much in a position to answer whether or not these men are in substance or engaged in transportation, for-hire as it is whether or not these men or whether or not the company has the right to direct control and dominate the transportation service. In other words, all these things were considered by the District Court. Another thing that I would like to point out is that I take it that their argument here is that these men have the essential risk of engaging in the transportation service. That isn't correct. These men leased their tractors to Oklahoma and of course it's payable on a cents per mile basis. These men are not (Inaudible) truck people, and it would be -- there would be more risk to these men involved in a flat rate method of payment than it would be on a cents per mile, because the gas is burned on a mileage basis. The oil is used on mileage basis and when these men determined, what's it is going to take to run that equipment, it's all done on a mileage basis. That's the most accurate way that you could arrive at any type of expense. Now Oklahoma pays for transportation itself. In other words, the rent payment is made regardless of whether or not there's anything hauled. Anywhere these trucks go, the rental payment is due and the wages of the drivers is due. Charles E. Whittaker: But Oklahoma -- I think that Mr. Ginnane's real point in that connection was that no minimums are guaranteed and no amount of mileage is stipulated – guaranteed. William L. Peterson, Jr.: Well I don't -- I don't really know that that would be material if that's the only thing. Of course, they haven't suggested it to us before. Perhaps, we would have put in a minimum mileage, but I don't think it's a material in this case because here's a situation where a close relationship between the company and these men. Now, the record indicates that -- well, in two instances here, that drivers were first -- the drivers of the company owned vehicles and they were promoted up through the ranks. Now, these men know how much transportation Oklahoma does. They know that that equipment is going to be used. They know it. Now I know there's no minimum in there, but we'd be happy to supply one if that's the only objection and in this connection, if the equipment goes out loaded and comes back unloaded, it's Oklahoma who bears that cost. And also Oklahoma will bear the risk of efficiently or inefficiently loading that equipment when it goes out and Oklahoma directs all those movements, and Oklahoma also selects this equipment and names the driver to drive it. Now normally, that is the owner of the vehicle because the company has found that they have a better safety record when that's done and the equipment is better maintained when the owner drives it. But there are instances in this record where Oklahoma assigns different drivers to different trucks. In other words, that's not an ironclad rule and the District Court's opinion reflects that this is done whenever business, reasons or convenience make it necessary. So for this reason, we feel that there is no merit to the questions presented by the Government. John M. Harlan II: Are the drivers free to use these trucks for third parties or something like that? William L. Peterson, Jr.: Absolutely not. They have never done that and the record indicates that neither that has been done nor has the -- nor have the goods of any other person been hauled with these trucks and incidentally, Oklahoma owns all of the trailers, there are 26 trailers utilizing this operation, Oklahoma owns everyone of them out front. Speaker: (Voice Overlap) -- Hugo L. Black: (Voice Overlap) –- Speaker: Excuse me. Hugo L. Black: Excuse me. Speaker: Go ahead. Hugo L. Black: If there's a loss from the failure to use, who bears the loss? William L. Peterson, Jr.: Loss from the failure to use -- Hugo L. Black: The truck. William L. Peterson, Jr.: Well, that's -- Hugo L. Black: You answered that they do not hire anybody else, of course, they'll lose the money, I presume that. Who bears that loss? William L. Peterson, Jr.: Well, I'd have to say that the lessor does. But it's never happened nor has -- nor was the question asked. Hugo L. Black: He would bear it if the owner was using his own truck. William L. Peterson, Jr.: Well, I don't know necessarily that there would be any loss from the truck. Hugo L. Black: Let's say, idle half of the time, say? William L. Peterson, Jr.: Well the overhead would be borne to Oklahoma. I turn the balance of the time over to Mr. Iden. Earl Warren: Suppose you had a work stoppage in your -- in Oklahoma and you were closed for several months. The entire loss of that would be borne by the lessor? William L. Peterson, Jr.: Well yes, Your Honor under the present agreement, it would be but insofar as I know that's never happened in the history of all these, nor was the question even asked by the Commission in the record. In other words, whether or not there's have been a profit or loss by these lessors from this lease agreement, was never even asked, and the record won't indicate whether or not Oklahoma is making a profit or loss from engaging in this transportation as a private carriage, likewise doesn't appear in the record. Now, those are financial aspects that -- I believe that you're talking about in the record just isn't broad enough to cover them. Felix Frankfurter: But the legal consequences are there aren't they that you've just answered in the questions put to you. William L. Peterson, Jr.: Yes, I -- Felix Frankfurter: Those derive from the document itself, don't they? William L. Peterson, Jr.: That's correct. Earl Warren: Mr. Iden. Charles R. Iden: Mr. Chief Justice, may it please the Court. It's been quite interesting to me to see that Oliver case kicked around that I don't feel too good about it. The last time I saw Mr. Previant, he and I were here and we argued that to the Court and I was on the wrong end of the decision. The question was asked whether or not, in that case they were found to be employees in the lower courts. In my efforts to prepare that case, and if this is interesting from this point of view that we felt that the Oliver was an independent contractor and the Ohio courts so found that either I feel that when this Court reversed the Ohio courts that they must have found Oliver to have been an employee or the union wouldn't have had the right to bargain for him under the -- William O. Douglas: What was the citation of the Oliver case? Do you have it ready? Charles R. Iden: I'm doing best to forget that case. (Attempt to Laughter) It's a 3rd Law Edition. I couldn't cite it in the -- Potter Stewart: I think its 358 United States Report. Speaker: (Voice Overlap) -- William O. Douglas: You're not now -- you're not now confessing error (Inaudible) Charles R. Iden: Oh, I never confess error. (Attempt to Laughter) The interesting part is -- was, in that case, I felt that he was independent contractor and I feel this Court said he was an employee. Now here, I feel that these boys are employees and if we lose, you're going to have to find they are independent contractors, so much for Oliver. I think it was Mr. Justice Brennan had some question to Mr. Ginnane. What he would suggest this Court could do about fixing a rule for this, I think that I would go further than Mr. Ginnane would and I will approach it this way. I like to feel that sometimes you could answer these questions a little better if you get away from Washington and get out where these things are occurring. I am from Akron, Ohio and we have a few trucking companies around there and we have a few truckers. And I have many people come in to me and that's why and I'm here. I'm just an intervener. People come in to me and they have problems with these carriers so how can we haul our own goods. And I want to answer the question -- your question the way I advise my clients and I think it's stronger that Mr. Ginnane put it. I tell them, “You can rent trucks just as you would rent them if you want to Hearst, as he put it.” Now how does Hearst rent their trucks? They will rent them by the mile. They don't rent them by the amount of goods that's transported. They rent them by the mile and Hearst will furnish insurance. It's common. If you rent a car, when you drive it, the Hearst, they furnish the insurance, they furnish the car, they furnish the gas and oil and they repair the car. They will tell you, “Now, we buy a $100 deductible insurance and if you don't want to pay that minimum of a $100, you pay us the next $3 a day or some extra premiums if you want more coverage” and I think that's the key to the leasing of the equipment. It can have no basis whatsoever to the amount that's greatly transported. Does Hearst care how many people you put in the automobile when they rent it to you? Of course, they don't, so long as you don't put them on the roof. That's the key to the running of the equipment. Now, I will say to this Court that that's not what clients like to hear. They want to find a device so that they can measure the rental of that equipment by the amount of crate that's carried. That is wrong and I tell them further, “Who's going to drive that truck?” That employee and this is where I go further than Mr. Ginnane, that driver of that truck must be your employee and he must be employed by you just the same as every janitor, every production man, and every office man in your company. If you pay profit sharing, he gets profit sharing. If he -- if your people get vacations that truck driver gets vacations, you must pay social security, workmen's compensation. And every benefit, every fringe benefit and everything else that you do in hiring employees, you must do for that employee. If you require all your employees to have their picture taken and have it put in the employee's record, you also must do that. Now that's where I go farther -- further than Mr. Ginnane. Now that's the difference between these cases that they have discussed in our case. This case is unique. And as you read this lower court cases on this problem, you will find that to be true. In every one of those cases, you will find something lacking, because they are trying to measure the amount of -- the amount they pay upon the amount crate transported or they're trying to avoid the benefit -- the detriments of certain back haul problems. You will find in most of those cases that the shipper, the manufacturer, the private carrier manufactures the product that he wants to move one way. He has nothing coming back. And in order to make private carriage work, just as you must -- it's true of common carriage or contract carriage, you have to put freight on that truck both ways. And so that they enter into devices in order to avoid the problem of driving that -- moving that truck empty one way, and that was again the trouble and I will agree with this Court, I will agree with Mr. Ginnane, that's wrong. William J. Brennan, Jr.: Which side are you on here? I -- Charles R. Iden: I'm just an intervener. (Attempt to Laughter) You asked the question if Mr. -- I say that I'm going to contrast what I'm talking about with this case here. That did not occur in this case. William J. Brennan, Jr.: Well, I don't quite understand, would you sustain the Commission in the Oklahoma Court. Charles R. Iden: Certainly not. William J. Brennan, Jr.: I see. Charles R. Iden: This case is unique. I think in order to understand this case you must understand the problem that the Commission was faced with in the normal case. And the method that the subterfuge in every one of these cases and I haven't bore you with all of them, but in the Lamb case. William J. Brennan, Jr.: But what perhaps I should ask you is, does the pattern in the Oklahoma case fit the advice you gave your clients? Charles R. Iden: Certainly. William J. Brennan, Jr.: Yes. Charles R. Iden: Absolutely. They rent this -- the -- my case isn't identical. The -- William J. Brennan, Jr.: You haven't (Inaudible) Charles R. Iden: No, mine is Weather-Seal from one of the manufacturers from Ohio and ours is very similar. They lease this truck. They lease -- it's not a trip lease. Oklahoma takes the risk of whether or not they're going to put anything into that truck coming back. If they got some raw materials at the other end that they own, they bring it back. You will find in these cases that they're referring to the Lamb case, the Allen case, the Lamb and Poynor, 259 F.2d is in my brief, I don't think. William J. Brennan, Jr.: Well, maybe I misunderstood you, but in Oklahoma, they do bring raw materials -- Charles R. Iden: If they -- if they -- William J. Brennan, Jr.: And that you think is alright. Charles R. Iden: Well certainly. William J. Brennan, Jr.: What you tell your client is they can't bring something back to somebody else. Charles R. Iden: That's right if it's not their primary business. One way they try to get around this thing is they'll bring back exempt commodities and this agricultural exemption causes an awful lot of problems, but you can't solve it, Congress took care of that. They will have to take care of that. But they'll bring farm products back and they'll bill in order to make it appear that the private carrier is using that truck both ways they will fictitiously make it appear that the shipper is buying this wheat and the oranges and these farm products and then selling them, of course, as a subterfuge. Felix Frankfurter: But can the private carrier do exclusive carriage for a particular shipper? Charles R. Iden: Well, a private carrier under the definition by Congress is a manufacturer, a person engaged in a primary business. Felix Frankfurter: Well, I don't -- I beg your pardon, I misspoke. Can the contract carrier hire himself exclusively to one shipper? Charles R. Iden: Oh! Certainly. Felix Frankfurter: Well, then (Voice Overlap) -- Charles R. Iden: He's an independent contractor. He's an -- you're doing it independent business. Felix Frankfurter: So the ownership of the goods on the return isn't very relevant, maybe relevant but isn't very decisive, is it? Charles R. Iden: I would say that it is because if this –- Felix Frankfurter: (Inaudible) Charles R. Iden: Well, the contract carrier must have the authority to haul for everyone that he's hauling for if he could make a contract but the company that has crate moving both directions, he can do it. Felix Frankfurter: That's what I'm talking about. Charles R. Iden: Oh, certainly but if he is -- if his shipper only has crate moving one way then he's got a dead head himself. Felix Frankfurter: That's true but if -- but the ownership of the return goods is immaterial provided that he's under contract to ship those goods though -- for the same person for whom he hauled the original. Charles R. Iden: Yeah, the contract carrier (Voice Overlap) -- Speaker: But he hasn't (Inaudible) -- Charles R. Iden: Oh, certainly, he might have half a dozen contracts that he might -- depending on the breadth of his authority. William J. Brennan, Jr.: Well, your point if I understand it is that if one of these private carriers begins bringing stuff back for somebody else, he may get himself in the situation where he has to be certificated as a contract carrier, (Voice Overlap). Charles R. Iden: That's correct. Like I say that in those situations, these fellows are violating the law and he's wrong because the Act says that if a private carrier is one who is controlling hauling goods which is his primary business, and if General Motors started hauling oranges back from Florida in order to put it in the supermarket, that's not their primary business. I presume that they could bring some oranges back to serve in their cafeteria and they own the oranges, it was legitimate, there's nothing wrong with it. This got to be their business, so that's the dividing line here. Oklahoma Furniture leases this truck, they pay a mileage rental, they pay that mileage whether they had any furniture entered or not. Now would you get into the discussion of the cost of transportation is a little word of art here. A manufacturer, when he's talking about cost of transportation, he's not talking about how much it cost to drive a truck per mile, he's talking how much the cost made per unit of the item I'm going to sell. And in this case, when Oklahoma Furniture pay so much a mile for the lease of that truck, they don't know when they send that out and they take this risk whether they're going to have that truck one-fourth full, clear full, or whether when it returns, they're going to have any freight entered at all. So that depending upon how much furniture they can have outbound and whether or not they had any return of raw materials determines their cost of transportation so they are taking the risk. And it's just as common as the sun coming up in the morning, the manufacturer paid employees by the unit of work just performed, so that the payment of a driver by the number of miles he drives is just as -- it should be so common, it's beyond any argument. Hugo L. Black: Did I understand you to say that Congress had some way to settle this controversy in connection with agricultural? I recall that you had some cases in Florida. Charles R. Iden: I say that -- I think that the agricultural exemption is probably caused one of the problems here because you don't have to have any authority at all to handle agricultural commodities. So these fellows who will had it -- there's a unbalance of regulated transportation into some of these agricultural areas that the -- so long as Florida's principal -- Hugo L. Black: That's still unregulated? Charles R. Iden: Agricultural commodities are certainly -- Hugo L. Black: That's what I asked. Charles R. Iden: So that you find what causes this, not at our case, but the evil that they're talking about is that so much of the freight moving out of Florida is unregulated and most of the freight moving in is regulated so there's a terrible temptation for these people to fix up fictitious deals to trip lease; they'll come out unregulated from Florida then they'll -- they will -- what I say is evil then, they will lease the truck to haul a material which should be regulated and then they'll lease it -- the driver for one trip, and I say that it's wrong, I say it's not a bona fide deal where an employer hires an employee or truck driver for one trip. Charles E. Whittaker: We don't have such a case. Charles R. Iden: No. Charles E. Whittaker: As I understand it. Charles R. Iden: That's right. I only point that out so that this Court will understand what the difference between our cases. This is unique. This is the first time that a case has come up where the Commission says, “The employment contract is lawful. We can't quarrel with it.” They have said, “Your release is proper” and they have found no subterfuge and so in desperation, they have said, “Whenever in this case, the lessor is hired to drive the truck, we're going to find that is irrebuttable presumption that that is wrong.” Felix Frankfurter: But that isn't the ground of the decision. That isn't -- that isn't what I read from the report of the Commission. That last -- that that's all there is to it if you hired the driver. Charles R. Iden: That is the -- nothing is -- even Mr. Ginnane said that he would agree that has been no subterfuge here. Felix Frankfurter: Well but -- but you may cross the line quite candidly without doing any subterfuge; subterfuge isn't the problem. The problem is whether you come inside or outside the particular line. Charles R. Iden: Your Honor, that's (Voice Overlap) -- Felix Frankfurter: And you make them outside and by being secure as the newborn baby. Charles R. Iden: The situation though is that when lawyer set this up, they make a paper deal. They will make that -- they will hire the fellow for the one way trip, and they will lease it for the one or two way trip and they release it at the end of the trip, and then they'll take the trip -- truck over and they'll (Inaudible) -- they can new lease going back and they will take the same driver and they have the new employment with that driver -- that his employment shifts throughout. I think that that's wrong. Maybe I shouldn't go that far. Felix Frankfurter: Well, evasions maybe wrong on the concept that you have to have a palpable paper flimflam. Charles R. Iden: I'd like to read something. Private carriers, of course, need not own their vehicles outright. They may lease them from their owners. Moreover, they may employ the owners to drive such leased vehicles without necessarily converting the operation into a contract carriage operation. That sounds like something from my brief but that's from the Interstate Commerce Commission's brief. And in answer to some of the questions here, Mr. Ginnane says that the real issue boils down to the fact that where you lease, where you hire the lessor of a truck to drive it, that is the evil because they said if you lease a truck from Hearst and pay a mileage rate and then you hire another driver, hire a driver at a mileage rate, they say that's alright. So that it -- Charles E. Whittaker: Didn't you answer to my question, answered to me that the vice in here in leasing entirely this -- from the same man, leasing from a particular person and hiring that particular person to drive the truck. Charles R. Iden: I felt that he -- I felt that he had narrowed it down to that issue. Now -- Felix Frankfurter: With the attendant risks. It would be attendant incident of the risks involved in the utilization of that equipment. Charles R. Iden: He ignores -- they ignored the fact that in this case the -- and the risk is not transferred. The lessor of that equipment is getting a -- well, that's the reason I went into these other cases. Where they work -- the lease is based among the amount of freight that's going to be moved in that truck by one device or another then the risk is transferred to the lessor but where the shipper, the private carrier pays for the use of that truck, whether monthly, or weekly or a mileage basis irregardless of the amount of goods they ship to that truck then the risk has not been transferred because the shipper, the private carrier Oklahoma here has assumed the risk of how much business he is going to have, how much freight he's going to be able to get on to this truck, how much he's going to return on that truck. And the cost of shipping his goods has gone up very tremendously as to whether or not he has a thousand pounds on the truck or whether he has 10,000 pounds in the truck or whether or not he can bring backs some goods on the return trip. One of the problems here that I see was -- I think the motive in this case is -- I can't agree with it. They take the position that there has been a -- the evil here is the divergence of freight from a common or contract carrier to a private carrier and I think that must assume that these carriers have a vested right to a certain amount of freight. I don't think that's true. I think the issue here is to whether or not these people are violating the law and not the fact that the freight is moving from carrier from common and contract carriers or private because we must bear in mind that private carriers are recognized by the Congress as regulated carriers. And in the -- and in the preamble to the Act, Congress has said, it is hereby declared to be the national transportation policy of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of the Act. So administered as to recognize and preserve the inherent advantage of each. Now, bearing in mind that in the Act there are common carriers, there are contract carriers, there are private carriers. And so I feel that the Commission of all parties of this case should be asking for a fair administration of the Act. It should not be taking the position. There's been a divergence of freight to get in to that question and where -- we get far afield. That was the cry of the railroads in the 1930s when the trucks started. The truckers were able to give a more vigorous attention to business and that's how they grew. And if you want to know the basic fact of why transport -- moving the freight is being diverted if you want to use the word common and contract carrier or private carriers because the common and contract carriers are now reaching the point that the railroads were in the 1930s and they're not as free to make -- give the service that the public needs. And when the con -- when the common carriers are able to give service, they're going to get the freight back and they can't get the freight -- I don't think they should be getting the freight back to -- by appealing to this Court to assist them in making it difficult for a private industry to transport their own commodity. Felix Frankfurter: But in this case we have shown and the record shows that there was an ordained garden of varieties private carriage here, (Inaudible) the company found (Inaudible) so expensive or too inconvenient then they made this arrangement. They diverse to themselves of the very thing that you've just indicated, namely a private carriage is more enterprising and more effective and more desirable for one reason or another. Now, the unquestioned private carriers that there was in this case by the Oklahoma Company, they got difficulties. And the Oklahoma Company said it that clear cut position it had and it made a new lease, and this new lease came under the scrutiny of the Commission and that's why we're here. Charles R. Iden: They changed their method in conducting -- Felix Frankfurter: And (Voice Overlap) -- Charles R. Iden: -- that I consider a lawful business. Felix Frankfurter: Well, therefore the change of method begets some legal problems. Charles R. Iden: That's why we're here. There's no -- Felix Frankfurter: Yes. Charles R. Iden: There's no question about that. Felix Frankfurter: So that -- so that all you've said earlier before my intervention was that private carriage had shown its superiority in this case, just call into question because clear cut private carriage, they got difficulties and they have to make a different arrangement. The question is whether it's still within the concept of the statute of private carriage or whether it's for contract carriage. Charles R. Iden: Absolutely correct. I think -- well, the problem is here and our arguing this is we are conferred with the best brief that we could write probably written and more stronger -- in stronger terms that we could -- would write one and that is the dissenting opinion of Commissioner Webb from the Commission. I wouldn't -- I don't think I would've had the nerve, let's put it that way to write a strong, a brief as he did. And if you will read -- and if you'll read that, he sat with the Commission. I think he knew it was on their minds and that he is the one that pointed out that the only thing that the Commission could find wrong was the fact that the lessor was hired to drive the equipment. Felix Frankfurter: But that isn't true if you look at the Commission's prima facie, at least that isn't -- you may be right, I'm not now questioning because this isn't both rolling off a lot, but it isn't fair to bring the case -- boil the case down to that fact because on page 49 of the jurisdictional statement which reads the Commission's report, you'll find what to me is a crucial paragraph of that -- of the Commission's Report, 49 and 50. In which it enumerates the items of risk that remain with the shipper or rather the items of risk that are transferred from what theretofore only on the shipper when he had a private carriage and now belong to these owner-operators. Now, you may deal with them, I'm not saying you can, all I'm saying that the case doesn't reduce itself with the simplicity which you indicated a minute ago. Charles R. Iden: Let me read this, Your Honor. Concededly, without arrangements, with respect to the common (Voice Overlap) -- Felix Frankfurter: Where are you reading it from Mr. Iden? What's the -- where are you reading from? Charles R. Iden: From the Interstate Commerce Commission's opinion. Felix Frankfurter: Yes, I know but I'm -- what's the page? Charles R. Iden: At page 160. Felix Frankfurter: Page what? Charles R. Iden: 160 of the -- Felix Frankfurter: Record. Charles R. Iden: The record. Felix Frankfurter: Thank you. Charles R. Iden: Concededly, without arrangements with respect to the complimentary services neither the driver nor equipment services of the owner-operators standing alone could be found to be those of carriers' for-hire. I think they base their decision on that concession. Hugo L. Black: Well, I suppose that is true beyond the doubt that it gets the near bad rating of a car to carry on your own transportation would not make you a contract carrier. Charles R. Iden: (Inaudible) the point. I feel that the Commission has boiled this down to this issue and I think that that's the evil. I say that one -- that's the reason I am here because the district -- the local supervisor told -- we have a similar situation. The local supervisor says in reliance upon this decision before it was appealed in Oklahoma that we were wrong because the lessor was driving the truck. He says that's it. That's what this case holds. And I said, well, I made peace with them by saying I'll enter that case and if the Government wins, we'll quit and if I can change that decision, then he's to agree that we're right. Felix Frankfurter: Well, speculatively, I just wonder whether you would quit on that bare fact. Charles R. Iden: I think I would review my -- Felix Frankfurter: Your advice {Attempt to Laughter]. Charles R. Iden: -- arrangements of the -- in light of the decisions that would come out and I would still try to have my party obeying the law. Felix Frankfurter: I think that's for granted. Charles E. Whittaker: In what respect, if it all if I may ask, does the Commission's ruling set forth at pages 31 -- 21 and 22 of the brief of Respondent Drum vary from the judgment we are asked to review here? Starting out the question, “Do the regulations apply to the leasing of equipment of private carriers or shippers by a person not an authorized carrier?” Answer of the Commission: “No. The regulations have no application to such leasing arrangements. For such an arrangement to be proper, the leased vehicle must be transferred to the shipper's possession and be operated under the shipper's complete direction and control by the shipper's own driver.” Is the shipper responsible to the public in case of accident and responsible to the Commission for compliance with the safety regulations, etc? Is there a variation in the judgment below from that ruling? Charles R. Iden: This question was asked concerning the leasing regulations for those who were approved by this Court in MC-43 American Trucking Association case. This question was asked as to whether those regulations applied to private carriers and the answer was no because those regulations do apply only to common contract carriers. We say that the Oklahoma Furniture arrangement comes within the answer given by the Commission that the leased vehicle has been transferred to the shipper's possession and it is operated under the shipper's complete direction and control. I think that there's no -- I don't think that the Commission argued that point in this case. Charles E. Whittaker: Well, I understand Mr. Ginnane not to deny that. Charles R. Iden: He's right. Charles E. Whittaker: Because he didn't bring that question here. Charles R. Iden: I think that's right. Charles E. Whittaker: So therefore, I ask you, what's the difference between what the Commission says is the proper understanding of its regulations and the effect given them by the court below. Is there a difference? Charles R. Iden: I have failed to see it. I think that we are (Voice Overlap) -- Charles E. Whittaker: Not this case? Charles R. Iden: That's right. I think we -- I think we're complying with what the Commission has said we had to do. I think that the -- I think that when the Commission -- their opinion said that the lessors guaranteed a fixed indefinite cost for transportation, I think that that finding was in error. I think that it was not based upon the record as a whole and I think that the District Court wisely and properly reversed them on that because -- and we're belaboring the subject on that point again because, as I say, that we have not illegally transferred the risks. I think that as Mr. Ginnane said, we have our right to lease trucks. We don't have to invest our money in trucks. But understanding the way that these things can -- you can buy trucks and you can pay very little down and you make payments over four or five years. You can -- as far as a private carrier is concerned, he doesn't have to lease them if he's only interested in avoiding the outlay of money, that's begging the issue. I say to this Court that the private carrier has a right to lease trucks, then there's nothing wrong with this lease, that if this lease in any way reflected the amount of goods that this shipper was going to put on then I say that its subterfuge. It's wrong. It's a violation of law. And I'd say that these people that were hired were not lawfully and properly hired and that's wrong. And I certainly think the fact that these people were covered by union contract and there's no evidence that that wasn't a good faith labor contract, this union represents everybody that works there. If there's ever been a fact that bolstered up the situation that it's lawful, that is it. I'd better send the union not to organize Weather-Seal. We don't have that situation there. We just hired them and we're just paying them, but I don't think that you can take the issue with the fact that these people are properly and lawfully hired and directed how to do their work. The trucks are used for nothing other than the transportation of Oklahoma furniture is proper. There's no dispute, not a scintilla of evidence in this record as to that. Hugo L. Black: May I ask you this question with all of your familiarity with the business, this is the reason I'm asking you, to show you, it will be easy to answer it with your knowledge. As I understand it that they made a contract here for so much per miles for carrying these goods to the Oklahoma Furniture carriers. That's right isn't it? Charles R. Iden: That's right. Hugo L. Black: And it's to be carried for so much per mile, they have a company -- a furnish company does not own the equipment. Charles R. Iden: They own the trailers. Hugo L. Black: They own the trailers, but not the other equipment. Charles R. Iden: Yes, not the power. Hugo L. Black: What's the difference in that contract than one made with the contract carrier, a contract -- in a frequent con -- on frequently contracts made with the contract carrier as you've carry our goods for so much per mile, and that's it. Charles R. Iden: The contract carriers may make that kind of contract. That their ordinary contract is made on the basis of how much goods they transport and the contract carrier is generally -- let's say this, almost, I would say 100%, I think, an independent contractor, he is the one that carries the public liability insurance. Hugo L. Black: (Voice Overlap) -- yes. I want to get away from words of definition and labors. What is the difference between this contract and the contract that is, permissibly made and frequently made between a person who wants his goods shipped and a contract carrier? Charles R. Iden: Contract carrier is an independent contractor. Hugo L. Black: I don't care what he is. What is the difference between the contract itself? What -- take this contract -- Charles R. Iden: Well the -- Hugo L. Black: (Voice Overlap) -- Charles R. Iden: I can answer (Voice Overlap) -- Hugo L. Black: -- with the contract carrier. Charles R. Iden: The contract -- the contract carrier is -- is a contract, the transportation of goods. So there's no -- Hugo L. Black: So much per mile. Charles R. Iden: I was going to keep -- but make it very simple -- keep away from these -- very simply the contract that a shipper makes with a contract carrier is a contract for the shipment of goods. There is no such contract here. William J. Brennan, Jr.: Well what you mean is that so much per piece, so much per ton, so much for something, is that it? Charles R. Iden: That is -- William J. Brennan, Jr.: -- and rather than as here on a mileage basis. Charles R. Iden: That's right. Now that -- I'm not saying that a contract carrier cannot make a contract with a mileage basis, but that is not the normal, that's purely a special situation. Hugo L. Black: It can be done, can it not, as a method of payment for the contract carriers? Charles R. Iden: That is truly done with a specialized deal if you're hauling -- Hugo L. Black: Well could it be -- is it the kind of contract that can be made for the contract -- Charles R. Iden: It's legal. Hugo L. Black: Now, is there any difference except the one you've mentioned that in the main, the contract carrier charged so much of a contract. Charles R. Iden: The only way I can show that -- to tell the difference is to show the different ingredients in the contract. The contract carrier will always be responsible to the public. In this case, Oklahoma Furniture is responsible for the -- to the public. In the contract carrier case, the contract -- Hugo L. Black: (Voice Overlap) Oklahoma, suppose (Voice Overlap)? Charles R. Iden: Oklahoma is responsible to the public. Hugo L. Black: How is it responsible to the public? Charles R. Iden: The truck has a collision; they're the ones that are responsible. The contract carrier is always responsible in the other situation. It's a question of responsibility. Hugo L. Black: Well, I understand that's the one difference there. I noticed here that Arkansas has held that -- now has it held that the contract of this kind of carrier that carries goods under contracts of this kind, must get a license in Arkansas as a contract carrier? Charles R. Iden: Apparently, the arrangement that Oklahoma had prior to the present arrangement, Arkansas held to be illegal. This present arrangement as I understand it has never been reviewed with the Arkansas courts and I am not from Arkansas. I have no opinion of what the law of Arkansas is. Felix Frankfurter: So that therefore you -- therefore you wouldn't deny from Oklahoma -- only of Oklahoma law which is one of the most ambiguous branches of law that I know is involved, when they suffered from its ambiguity, but you wouldn't deny that Oklahoma could as a matter of court law owed the lessee -- the lessor as well as the lessee liable for injury resulting. You wouldn't deny that would you? Charles R. Iden: Yes, I would. Felix Frankfurter: You would as a matter of tort law? Charles R. Iden: No, I'm talking about the -- you said lessor. Felix Frankfurter: (Voice Overlap) Charles R. Iden: Your Honor said lessor. Now, I would say this in every State in the union that if I'm driving a truck, I -- and I have an accident, I am primarily responsible. My employer is always secondarily responsible. Felix Frankfurter: Do you mean a State couldn't as a matter a tort law say this is so dangerous and it's potentially dangerous instrumentality that the real owner is to be held liable as well as -- as well as the particular driver? I can't imagine that. Charles R. Iden: Well, I can imagine that a normal furniture truck would be treated as a dangerous instrumentality as you're viewing it. I -- I could imagine that if we were -- if we were moving an outsized type of equipment that its -- you're the type -- that you'd have to have a permit from the State to move it even on a highway, an illegal load that you're going to permit that had outriggers on it using up the whole highway and that exceeded the capacity of the truck, I would say that possibly like a landlord who doesn't have his -- the balustrades properly built, the lessor might be liable. Your question was, did I feel that this lessor under this situation, then I certainly would deny it. Felix Frankfurter: I -- no. I said, could Oklahoma, as a matter of local tort law, do what the early cases at the time 45 years ago when I didn't know about them, make all sorts of ruling -- holding the ultimate owner of a vehicle liable for injury. Charles R. Iden: Well, Your Honor asked the question could they and I suppose they could but I don't think they would. Felix Frankfurter: I think in the early days they did as a matter of fact. There was a writ -- there was writ who wrote a -- who summarized all the cases and the legal conclusion he reached is (Inaudible) Charles R. Iden: Well I -- I would say -- I think we've long passed the era when a Court would say that the operation of a normal automobile or normal freight vehicle would be a dangerous instrumentality. Felix Frankfurter: Well, I'm not suggesting it all, I'm saying is the possibility of tort liability is rather unlimited. Charles R. Iden: Yes. And I would say that -- Felix Frankfurter: (Voice Overlap) -- Charles R. Iden: -- that the lessor -- not as lessor but as the driver. And bear in mind that when this truck -- this company, we've talked about what the powers are -- here are, this Oklahoma Furniture has the power to tell this driver to drive anybody else's truck and as Commissioner Webb points out as he views the decision of the Commission, if I drove your truck and Your Honor drove my truck, that's lawful. It's only when you drive your truck and I drive mine is illegal, and I -- if that's the decision, I think it's a terrible one because you have to view -- we are trying as judges and lawyers to make law that truck drivers are all vague. And when you -- when we create law that says to Joe, you can't drive your truck but you can drive Pete and Pete can drive yours, you're going to bring on disrespect for the law, Webb is right. I think that's a terrible result. We had a similar situation in Ohio, and our public utility laws are very similar to the ICC, the interstate -- the Congress copied their laws considerably from the States and States were in effect and before in our Ohio law was passed around 1925 and the ICC in 1935. And our Commission, I think all Commissions are jealous of their prerogatives and their authorities and they have generally followed the same rules and that the lessors couldn't be drivers. And that situation came up in Ohio, that there, neither case reported 165 Ohio State 391 discussed by me in my brief that commenced at page 14. And that was appealed to the courts and the Court did exactly the same thing as the District Court did in this case. And in commenting on where the hiring and the trucking comes together, the truck -- the Court said, where however a driver is also furnished, then they maybe an engaging in such business. Now, the difference between our Court and the Commission, the ICC here, they recognize that there is a situation, where you must look at it. But they went on to say, however, whether there is, will depend in a particular instance upon the relationship between the driver of the truck and the one to whom the truck and driver are furnished. So the Court went on, examined this situation and found that in that case, that the law that the driver made a legitimate lease of his truck, and that he was legitimately hired and he was told where and how to do various things. And so, they found in that case that where the control was properly in the lessee. If they'd overcome this presumption that might arise, where you see that the truck and the driver converging. And I say that's the rule here that must be made. I would say that it just as possible to have lack of control where they leased the Hearst truck and driving outside. I can imagine that in a desire to obtain efficiency, that they could say to this driver who can make up many arrangements, I represent a profit sharing company where they get a lot of efficiency in their plan by sharing percentage of the profits with their employees that you could go to your driver and I'll say we own or we lease this truck. Now, we're willing to -- so that you can make some -- more money than just a truck driver, we will credit to this truck the amount of money that we would spend if we ship by common carrier and then we will charge the lease or the depreciation on the truck. We will charge your basic salary and we will charge all of the expenses of operating the truck, gas or everything else. And at the end of the period of time, you will see if we saved any money on this and we'll give you part of it. I think that it should be -- actually, you could come up with an arrangement that would be further a field from control that we have in this case. So the minds amend and make up many arrangements and if we sit down and nit-pick an arrangement, you could probably find something wrong with many of them. I say it in a broad outline and I think the Commission did find that the Oklahoma Furniture properly controlled this operation and that the lease was proper. You say that Mr. Ginnane said that -- well, there's no minimum. But now the -- which as you filed applications for contracts in the Public Utilities Commission in Ohio, they get little rules and they have a rule that there must be a minimum stated in the contract, that you must guarantee a minimum of so many tons and I'll be frank to say that generally, you put in a hundred tons and you know if you've got a hundred tons a year, you're going to go broke. That satisfies the Public Utilities Commission. I tested them once. I've been my contract that we will -- the shipper guarantees to the contract carrier all the freight that we ship a year. I thought that was a better contract for my clients, and I would on -- and I put on the evidence of the amount of business that this manufacturer normally shifted on the years he'd been in business and he expected to be in business and that he's going to give this shipper, this carrier all of the freight that he had and there was considerable argument, but I proved my point that that was a legitimate contract. Now, I've gone back to putting hundred tons a year and that makes everybody happy and my job easier. But I say here that the fact that there's no minimum guarantee isn't the important thing. The fact is that over the years as shown in this evidence, this Oklahoma Furniture has given all of their freight to these people to handle under long distance transportation. They've gotten all the freight. And the fact that they -- sure they can hire a driver, they've got the union to overcome, the union could take a grievance if they fire the man but they -- the employer obviously can fire a driver for misconduct. But the fact of the matter is that these drivers have been there over a long number of years. That's the proof to pudding, what's been the result? These drivers have affirmed the job and the company has kept their leases. They -- if they did fire a driver today, they can't cancel that lease for 30 days and that man is going to get his money from that truck for 30 days. It's true that he wouldn't have to drive it, he wouldn't have to assign it, I suppose, but the facts of the matter is that over the years, these people have been employed and the truck has been used. That's the proof of the thing. If I can't enlighten the Court, I will -- I have completed everything I think I can say on this subject. Earl Warren: Thank you. Charles R. Iden: Thank you. Earl Warren: Mr. Ginnane. Robert W. Ginnane: We have nothing more to add unless the Court has some questions. Earl Warren: Well, I would like one -- to ask you one question. The counsel has rather simplified his argument in saying that the Commission says that it's a -- it can be a private operation if there is no lease of automobiles, but there are the trucks, but that if there is, it must be a contract carrier without more. Now is that the position of the Commission? Robert W. Ginnane: There's a statement in the Commission's report which if it's taken as a generality, it means that. I'm sure it's not -- that then applies in the setting in the facts of this case. We do not contend that a private -- a man -- that a shipper cannot be a private carrier if he uses equipment. Many and -- many private shippers lease equipment from this equipment rental firms every day. We do not contend that a private carrier must own the equipment which he used. Speaker: It was the only difference (Voice Overlap) -- -- operator as a driver also the owner of the truck is the driver? Robert W. Ginnane: If the owner -- if the owner is the driver and the arrangements are such that he is taking the economic risks of providing transportation then we say what is involved is private carriage. Now, of course that can be avoided as -- by the shipper. William J. Brennan, Jr.: You mean the contract is complied with. You said what is involved is private carrier (Inaudible) Robert W. Ginnane: The shipper can avoid that by doing two things, by making the truck his own, by buying and paying for exclusive possession the way he does if he goes to a rental company, and by making that driver his employee as Oklahoma does with the six drivers for the six tractors which it owns. Felix Frankfurter: But you have said he need not do that, therefore, you're not suggesting the Commission to make rulings which it will exert pressure on a shipper in doing that. Robert W. Ginnane: No, and I say that he shouldn't -- the shipper should make the vehicle his own either by owning it or by a lease in which he pays for exclusive possession instead of a doctrine unlike this but there's nothing more than a 30-day option. Charles E. Whittaker: Mr. Ginnane, are you aware of any repudiation by the Commission of its ruling quoted on page 21 and 22 of Mr. -- of the respondent's brief, the one that I referred to a while ago? Robert W. Ginnane: On the leasing rules, no sir, I'm not. But again, the keyword in there is possession, effective possession of the equipment, not simply on a 30-day option on which the shipper has no real purpose. Felix Frankfurter: Well, is that the -- is that the decisive factor in this case, the 30-day option or these other considerations? Robert W. Ginnane: No, to me it's just an indication that the shipper is not paying anything for effective possession of equipment as he pays a minimum when he really rents it from an equipment rental company. Hugo L. Black: You do not agree as I understand it with the statement made by Commissioner Webb (Inaudible) on page a 164 which says this. Thus, the mere status of owner-operator lessor is said automatically to defeat lessee control irrespective of the existence of convincing facts to the contrary. I understand that you're saying that is not correct. Robert W. Ginnane: That is not -- it is -- that's a question that's -- Hugo L. Black: On top of page 164. It merely stated the owner-operator lessor. In other words, the driver owns it. Robert W. Ginnane: No, I don't have it sir. Hugo L. Black: He operates it. Robert W. Ginnane: If we could start the preceding sentence at the bottom page 163. It says that means plainly and simply that no owner-operator can be employed by a common carrier, a common truck carrier, or by a private carrier if he rents and drives his own equipment unless of course he has a (Inaudible). Hugo L. Black: You depend on other circumstances, as I understand you. Robert W. Ginnane: That's right. Hugo L. Black: Something like it's quoted in the next quotation by Mr. Webb that he says that the Commission did not say, was that -- no one element or circumstances in (Inaudible) is that your position? Robert W. Ginnane: Yes, which is the approach we find in this Court's decision in the Silk case. Hugo L. Black: The Silk case is a -- I don't see how you can use the Silk (Inaudible) case (Inaudible) because that's under another Act and that's a question of whether he was an employee, an independent contractor under that Act. Robert W. Ginnane: And that's -- Hugo L. Black: And here you say it doesn't make any difference. Robert W. Ginnane: And that status could vary from one Act to another. We say Silk gives us a valid approach and that -- in that we are to look at the entire situation, all of the facts including the factor who is assuming the risk. Felix Frankfurter: Mr. Ginnane, before you sit down, may I ask you to turn to your jurisdictional statement on page 3 and 4, where you stated the question presented on the basis of which this Court noted probable jurisdiction. Am I to take it that the question that you presented to this Court in this jurisdiction of statement, your conception of what the decision, what the order of the Commission was which the District Court overruled? Robert W. Ginnane: Yes, one of the two aspects of the Commission's decision both of which were overruled by the District Court. Thank you.

Earl Warren: Continue your argument. Archibald Cox: Mr. Chief Justice, may it please the Court. Before the recess, I attempted to describe the manufacturers in the industry and Brown’s position as one of the dominant form in an industry dominated by four concerns. And then I began to go on to point out that even before acquiring Kinney, Brown had begun to tie up retail outlets because we think that’s a relevant circumstance in determining whether this tying-up more of it was a substantial factor in lessening competition. I pointed out already that Brown had acquired Wohl, the largest operator of leased outlets and department stores. It acquired Regal's 98 stores as well as the manufacturing facilities in 1954, where the Wetherby-Kayser's four Los Angeles stores and independents in four Texas cities and in Columbus, Ohio. Potter Stewart: Wohl and Regal by your own definition were in different lines of commerce, weren't they? Wohl made -- Archibald Cox: No. Potter Stewart: -- was primarily in ladies' shoes and Regal primarily in men's shoes, is that it? Archibald Cox: Well, but, primarily yes. But we wouldn't say that -- I think I would disagree with what seems to me be the implication that you take what someone is primarily in, then narrow to that and say that is the line of commerce. Potter Stewart: Well, isn't it true that Regal's retail stores is only one -- sells one shoe, no? Didn't they have an unsuccessful experience with women's shoes, or no? Archibald Cox: Regal is a seller of men's shoes -- Potter Stewart: Men's shoes. Archibald Cox: And the acquisition of Regal looked at vertically would simply tie up, a part of the market for men's shoes, not part of the market for manufacturer selling women's shoes. Potter Stewart: And those are separate lines of commerce, you told us. Archibald Cox: Yes, yes. I was thinking of price -- Potter Stewart: I mean they are not competitive with each other. Archibald Cox: They're not competitive with each other. In addition to the owned outlets on through these firms that it acquired, Brown also had 584 franchise dealers at the time of the merger. Firms which were received assistance from Brown in various forms and in return for which they committed themselves at one time not to purchase from other competing manufacturers. On advice of counsel as the record puts in, that was eliminated from the written contract and was watered down to a commitment not to carry any conflicting lines. And if a Brown franchise dealer were to carry a conflicting line, unless it was a casual incident, he would be cut off as a Brown franchise dealer. There were a number of advantages in being a Brown franchise dealer. One was that you were able to purchase rubber-soled canvass shoes at a discount from Goodrich and otherwise that you've got the benefits and certain advantages in the form of insurance, both group life insurance and also buyer casualty insurance. Still another advantage as I understand it was that also some of the outlets might get occasional health and merchandising and inventory control in planning their stocks and architectural design. There is testimony quoted in that brief to the effect that you got this far more regularly and successfully, if you are a Brown franchise dealer which carried with it, I emphasize, the obligation not to use -- not to -- to concentrate in Brown shoes and therefore to exclude conflicting lines. Now, it's true you could quit at anytime, but the bait was there, if I may it colloquially. You got certain advantages that you gave up if you quit and as long as you were a Brown franchise dealer, this was an outlet which was wholly or which was partially foreclosed at least so far as shoes competing with Brown were concerned. Potter Stewart: There was a considerable turnover -- Archibald Cox: There was -- Potter Stewart: -- turnover every year. Archibald Cox: Oh yes, there was turnover, and the Brown franchise dealers sold other shoes -- shoes that didn't compete with Brown. Potter Stewart: And lot of them did quit as you call it, every year. Archibald Cox: And a number of them -- a number of them quit. But the total number was -- Potter Stewart: And this would have -- become new. Archibald Cox: The total number was constantly growing. There were 470 in 1950, 584 at the time of the merger, 647 in 1958, so that this is an increasing part of the market. The Kinney Shoe Company, we discussed it's less important manufacturing facilities before. As a retailer, it was in that capacity that it was important to Brown and is significant here and has its major significance here in this case. It was the largest retail chain of family shoe stores. It had 352 stores in 312 cities and it too was rapidly growing. For example, from the time of the merger until 1958, its stores increased to 418, an increase of 80%. If you look at its outlets and shopping centers, too, there were 50 in 1955, a 118 three years later and 136 -- an increase of a 136%. In 1955, Kinney's sales were 6,400,000 pairs of shoes purchased from outside sources. And is other than in addition to its own manufacturer. It sold, lumping them all together, 1.3% of the national total. Broken down into the three categories, Kinney sold 1.7% of children's shoes, 1.4% of women's shoes, there was a much smaller factor in the men's shoe market, only 3%. So that to pull this together, the merger combined the fourth and 13th largest manufacturers. The fourth largest manufacturer in the market with the most aggressive and largest of the independent retailers having 1.7% of the children's market and 1.4% of the women's and less than one-half of 1% of the market for men's shoes. And we come to the question whether the vertical effect of this merger would substantially lessen the competition -- might substantially lessen the competition in any line of commerce, in any section of the country. Our argument which I think I outlined before is that Brown's capture of Kinney's outlets violates Section 7 because its tendency will be to foreclose competition and send -- selling shoes to Kinney and that this segment of the market, the Kinney segment under all the circumstances of this industry is substantial. So that the three elements, we must attend to. First, we must define the market in terms of the section of the country and the product or line of commerce. Second, I have to address myself to the question, is there a reasonably likelihood that the acquisition will lessen the competition. And then third, I must show, of course, that the substantial share of the market is affected. Geographically, the market is a matter of common agreement, so far as manufacturer's market is concerned that that's what we're now talking about. Geographically, we all agree that it's nationwide. And there's no reason to discuss that any further. In terms of the product or line of commerce, the District Court found that the relevant market was for men's shoes, women's shoes and children's shoes. And I turn to the question in a moment whether those findings are supported by the elements. It seems to me important first to direct our minds and little bit to the question of what are we looking for and why are we looking for it. When we talk about line of commerce or market, as I see it, that -- Felix Frankfurter: May I break in to ask whether you can break up where in any line of commerce in any section, are those distributed terms or is that a unified collective terms. In other words, it must have been a line of commerce in any section in any section or is any line of commerce to be detached from that next phrase. Archibald Cox: I would think it could be the test, if I understand (Voice Overlap) -- Felix Frankfurter: You mean, any lines of commerce in the abstract? Archibald Cox: No, I think it's -- Felix Frankfurter: Or must it mean any line of commerce in any section? Archibald Cox: Well, I think that you must have to make the case a substantially -- a tendency to lessen competition in the line of commerce and in the section. I don't know. Felix Frankfurter: And in the section, conjunctively. Archibald Cox: Oh, yes. But, I would also think that if you had the whole country, a fortiori you had it in the section. Felix Frankfurter: Well, now that the line of commerce relates to a single community with -- Archibald Cox: No, no, but if one has a nationwide manufacturer's market, then he has satisfied the “section of the country” required. Felix Frankfurter: But what I'd like to get laid down is whether unrelated 15 cities constitute a “section of the country.” Archibald Cox: No, I might ask, Your Honor, to defer that until we come to talk -- about the retail markets because it makes more sense in connection -- if we're talking about retail competition, I will address myself to it at the end. I'm now talking -- Felix Frankfurter: You're now talking, are you now talking between -- are you not talking competition between shoe manufacturers -- Archibald Cox: To sell. Felix Frankfurter: -- which sell throughout the country? Archibald Cox: Yes, sir. Felix Frankfurter: But even as to them, must it not be in any line of commerce in any section. Archibald Cox: Well, I suggest that if you have a market defined in a term of line of commerce that extends to every section, it necessarily is a line of commerce in some section. Felix Frankfurter: Isn't it a question of arithmetic or geography, but let me be specific. Suppose you have two powerful shoe companies competing for a very specialized fancy movie star shoe market in the city of New York exclusively -- Archibald Cox: But -- Felix Frankfurter: -- suppose that's the only city that is an outfit as between two competing manufacturers, that New York women or enough of them care for particular kind of too thick heeled of a special kind, so thin that almost invisible to the eye, yet giving gravitation support. Archibald Cox: My answer, Your Honor, which I think meets the point is that we have agreement here that so far as manufacturers are concerned, they are competitors in selling all around the country. And that therefore, we don't need to consider, so far as the manufacturers are concerned, the question that you raised. Now, we do need to consider it in terms of retailing but I wonder if I might -- can take it up to that point. Felix Frankfurter: Well, all I can say is you can by agreement, you had a difficulty out of my head. Archibald Cox: Well, but it's a matter of -- it's a matter of fact and -- Felix Frankfurter: Well, I'm not saying it isn't. I just want to get enlightened at the outset. Archibald Cox: Well -- Felix Frankfurter: Take my case of two powerful manufacturers as competing for a specialized New York market in particular kind of shoe, will that be within the Act? Archibald Cox: We would say -- we would say that this case does not involve that question, but yes, it would be within the Act. Felix Frankfurter: Well, then I don't understand the Act. But may well be. Archibald Cox: And we would say, following the implicit holding in the Maryland-Virginia Milk Producers case that a metropolitan area, such as you mentioned, may be a section of the country. Their holdings under the Sherman Act saying that tying up movie chains -- Felix Frankfurter: Well, that's a -- I can -- Archibald Cox: -- in metropolitan areas. Felix Frankfurter: I can understand that answer. That implies that it is a section of the country -- Archibald Cox: Yes. Felix Frankfurter: But not because there are 15 unrelated discrete, separate communities. Archibald Cox: That's quiet true. Now, in the retailing and in this case, we have the further fact that there are -- not 15, but a 141 -- Felix Frankfurter: Well, I don't think if you multiply discreteness, it makes it a compound. Archibald Cox: I wonder when one considers whether what Congress was concerned with, was getting something of national importance, then it does not become material unless one puts a very literal meaning on the word “section” that you have cities scattered all over the country. The alternative as Justice Stewart suggested earlier would be to say that Section 7 does not apply to retail -- Felix Frankfurter: Well what -- Archibald Cox: -- because all the markets are retail markets. Felix Frankfurter: What troubles to me is when Congress changes a phrase which has limited geographic connotation, the one which has wider geographic connotation, I must face a need to that. I can't ride off on general vague intentions of the statute. Archibald Cox: Well, I've -- again -- Felix Frankfurter: I maybe all wrong but I'm just trying to understand this business and -- Archibald Cox: No, sir. The only difficulty I'm having frankly is that this is irrelevant to the point we're talking about, manufacturers because they don't sell in single cities. When we come to the retail combination, then they do and while I -- I don't mean to be rude or presuming. Felix Frankfurter: You're not. Archibald Cox: It seems to me that the argument would progress far more clearly if we could talk about manufacturing for while, the issues that -- Felix Frankfurter: You see you have -- neither before lunch nor now dealt with what to me is a troublesome thing that Congress for reasons of its own has changed from the phrase in any community to -- in any section. Archibald Cox: Well, let me defer my argument with respect to manufacturing then and turn to the retailing portion of it and then try to deal with this point because I think, we should deal with it in the context in which it arises. Now, here I pointed out earlier that Brown had become a significant factor in the retail market. And that Kinney was also the largest and most aggressive independent retail chain. Kinney had the eighth largest volume of sales in the entire industry. It had as I said before, 352 stores in 315 cities. The District Court found that Kinney and Brown were competitors in the retailing of shoes. And perhaps, I should emphasize again that I have turned to the retail market and the horizontal effects of the merger. I hope, I will have time to come back to the other. That testimony that Kinney and Brown were competitors in the retailing of shoes is supported by a large number of detailed facts. There's evidence that there were 138 cities of over 10,000 population in which Brown and Kinney both had stores. In the 123 of those 138 cities, the stores were located within two blocks of each other. In 58 cities, there was a Kinney store and the Wohl department within two blocks. And in eight cities, Kinney and Regal had stores within two block of subject, of course, to qualification that you make that they weren't competitors and -- Potter Stewart: Well Kinney, as I understand, it sells men's, women's, -- Archibald Cox: Yes. Potter Stewart: -- and children's -- Archibald Cox: They would -- so they would be competitors in men's shoes, but -- Potter Stewart: They would be competitive of both -- Archibald Cox: That's right. Potter Stewart: Regal -- Archibald Cox: That's right. Potter Stewart: -- and Wohl as I understand it. Archibald Cox: Yes. Potter Stewart: Although Wohl and Regal are not competitive in most places. Archibald Cox: Yes, that's true. Yes. The product -- and so far as the evidence showing the competition in addition to location, they sell generally men's, women's and children's shoes in these stores. There are some specialists but in general, in all stores, either shall sell men's shoes, women's shoes, or children's shoes. There was testimony, for example, that in the men's line, that Brown's Pedwin and Kinney's men's shoes were very similar in price, style, and appearance and very competitive. I point out that 48% of Brown's sales of men's shoes and 42% of Kinney's sales were in the $7 to $10 price bracket. With respect to women's shoes -- Earl Warren: Would you state those figures again, please? Archibald Cox: That 48% of Brown's sales of men's shoes and 42% of Kinney's sale of men's shoes were in to $7 to 9.99 price bracket, I think I said $10. Similarly, there were lines of Brown's women's shoes -- Air Steps, Life Strides, Glamour Debs, which were competitive with the shoes sold by Kinney. 27% of Brown's women's shoes and 35% of Kinney's were within the $3 bracket, about $4 to $7. And among children's shoes, the figures, without taking time to read them were substantially the same. In addition to the overlap on prices, one of the most persuasive testimonies in my mind was the repeated testimony from my -- string of retailers in perhaps 40 of the -- or more of these cities, testifying from their actual experience that their stores were competitive with Brown and Kinney's. Sometimes, it would be a Brown retailer and he testified that Kinney was his competitor. One finds such expressions, as I took Kinney shoes off the soles of my customer. People told me that they had been shopping down at Kinney and they were coming up in the street and shopping here. There was testimony from the Brown and Kinney executives which corroborates this. Brown said that it aimed to the middle income and what we call the lower price market. And Kinney defined its market as the middle income and lower income group of America. And the -- Mr. Dean in his brief, stresses wide divergence in merchandising methods, style, advertising, and the like, but of course, when you're selling differentiated products today, those are the heart of competition rather than evidence of a lack of competition. Now, I come to the application of Section 7. And again to the key phrase, first, whether the effect of the acquisition maybe to substantially lessen competition. At first, it seems to me necessary to find the market, both geographically and in terms of the product or line of commerce. In terms of the line of commerce, the District Court found that the retail products were or lines of commerce were men's, women's and children's shoes. Now, I point out that the evidence shows that this is the way the trade is organized. This is the way retailers speak to themselves, they sell men's shoes, they sell women's shoes. The stores are either men's, women's or children's or family shoe stores. Again, showing the way the industry is organized. And Brown's own organization heads up to executives in charge of those branches. It's true that there can conceivably be finer divisions by style and price but the District Court found, following the testimony that they were quite impracticable. In the first place, he had testimony from retailer witnesses -- live witnesses that the high prices do compete with the low prices. He had evidence of an interchangeability of users nor is this one dramatic instance was the president of Brown came in to testify one day, wearing what were called dress shoes and the next day, he came in to testify wearing casual shoes which underscored the point that these classifications do not really indicate the uses or lack of competition. They are manufacturers' selling gadgets for the most part. Potter Stewart: He used as direct testimony one day, and cross-examination in the next. Archibald Cox: I trust that it wasn't the casual when he wore the second. There was also, as I said, before direct testimony from the retailer witnesses, all of which is outlined in our brief. Now the District Court found that geographically, the market at retail is the city and the immediate surrounding and contiguous area. There, again, he had testimony of witnesses describing what was the market, and there are 40 out of the 138 cities. And I think that this is indisputably a fair sample. Anyone who suggests that the others of the 138 or somehow, that unique, surely has the burden to do it and the appellants called that no -- called one live retailer witness. There were good many experts and many, many statistics but only, if my memory is right, one live witness. The Government's expert testified that normally you find 85 to 90 of the sales in marketing concentrated in the city. And the Court reviewed the detailed evidence about Saint Louis and found that there, also of course, a retailer on one side of the city does not compete with a retailer way over on the other side of the city but still, they're in competition with each other all the way along the line with theirs in the middle in competition with those on either side of him and that therefore, the most practical line was the city. The question then arises whether despite the fact that the practical market is the city and it's immediately surrounding area. This qualifies as a “section of the country.” As I understand the appellant's argument to which Mr. Justice Frankfurter was adverting or the question that Mr. Justice Frankfurter mentioned, it is in two parts. First, is Mr. Justice Frankfurter suggesting the statute did take out the word “in any community” and uses simply the term “in any section of the country.” And the contention is made that that signifies that a city cannot be qualified as a section of the country and as the justice said, “Well, you can't add a lot of separate discrete cities and get a section.” Then the other point on which appellant relies in this connection is the testimony of Mr. Kelley who was general council of Federal Trade Commission who at one point said the combination of department stores in New York, this was in testifying, would not violate the proposed bill. He later indicated that New York City might be a market. This was only testimony and it seems to me that no very firm conclusions can be predicated about it under those circumstances. Potter Stewart: Well it's true, Mr. Cox, that the statute as it used to be worded would by its literal terms have absolutely prohibited the acquisition of one small shoe -- shoe store in Peoria, Illinois by another small shoe store -- Archibald Cox: That's true. Potter Stewart: -- in Peoria, Illinois. Isn't it? Archibald Cox: It's -- that is true and it is also -- I can't direct myself to significant -- Potter Stewart: Assuming that also men's shoes. Archibald Cox: All I meant to dispose of, if I may put it, is this Kelley's testimony. Now, I'm coming to the change in the language. It's unquestionably true that this was intended to make possible some mergers between little fellows that Section 7 would have forbidden before. And the day the example was given in the senate report, that the use of the term “community” stirred a storm of controversies since it was argued the Act was worded might go so far as to prevent any local enterprise in the small town from buying up a local enterprise the same time. As the consequence, the word “community” was dropped from subsequent versions of the bill. Now, I think that one way of stating the question is whether there to indicate that any combination in a town or a city or even in a succession of towns or cities is exempt from the bill. We say not. We say first, that one must consider the substantial and meaningful problem that is addressed to not only in the terms of the Congressional Amendment in 1950 but that we're considered with here. We're concerned with actual markets reflecting business dealings. Market such as that economists or businessmen would choose regardless of the verbal geographical definition as the area of effective competition. And one of our troubles is -- well, let me back up just a little, we think this is entirely clear not only for the common sense that you've got to deal with business markets, business practice but also, is -- it's revealed that this is a question from a legislative history in the right approach. The reported sales said, “What constitutes a section will vary with the nature of the product owing to the differences in size and character of markets. It would be meaningless from an economic point of view to attempt to apply for all products a uniform definition of section,” but such definition were based on miles, population, income or any other unit of measurement. The section which would be economically significant for a heavy durable product such as large machines tools might be meaningless for a light product such as milk which certainly sounds in terms of a retail consumers market. And of course was so applied although this Court didn't pass on the point in the Virginia-Maryland Milk Producers case. Then it went on as the Supreme Court stated in Standard Oil Company against U.S. Since it is the preservation of competition which is at stake, the significant proportion of coverage is that within the area of effective competition. And it did went on in the report in very much those terms, so that we think our practical businessman or economist as the expert put it, definition of market, is the decisive thing here. Now, someone may say in reply, “Well, what effect are you giving then to taking the word “community” out?” And I would say, “We were giving two effects”. One is that the bill would longer be applicable to a merger between two little fellows in a single little town, that before a city can qualify as a section, it must be sizable enough to have some interstate or national significance. Felix Frankfurter: And could have an interstate if it isn't -- in relation to interstate commerce, it isn't within the statute anyhow. Archibald Cox: When I said interstate, I didn't mean that I should have confined myself to national and not used the word interstate. It wasn't -- I didn't mean to emphasize across state line. I meant that it was of national importance. Second, we think in this case that it is permissible to consider the fact that not just one retail trade area is included but that a number of retail trade areas are included. The 138, by our computation and according to the evidence because the question after all must have been whether the lessening of competition in a line of commerce was of enough importance for Congress to take note of it. The argument that a single city and its environment cannot be a section would prove too much. It would prove that there was no intention to have this amendment applied to retailing at all. And that is of the slightest evidence that that was the -- in the mind of Congress or was the purpose. In other words, I think in what my argument comes to in the obstacle I have to get over is that if you can add these together, the section is not something with a single outline on the map. It becomes more a functional concept, a concept of importance to the whole country rather than a matter of drawing a line on the map that could be called a section. Potter Stewart: Are these 138 cities in -- in -- Archibald Cox: They're scattered all over. Potter Stewart: -- located in -- located in every geographic region of the country? Archibald Cox: They're scattered all over the country whether they're -- and every one would -- Potter Stewart: Well -- Archibald Cox: -- depend a little bit (Voice overlap) -- Potter Stewart: -- that would be a matter of definition, but they are all over? Archibald Cox: Yes. They're all over the country. There's no -- no doubt about that. Felix Frankfurter: Mr. Cox, you've told us a lot about congressional history and you've talked about the mind of Congress. Does Congresses mind express or tell us from the legislative history on this change in the face of -- Archibald Cox: Well, in the -- it's -- the expression is in the passage I read just a minute ago. Felix Frankfurter: I mean, did the report say anything why they made it? Archibald Cox: Yes -- Felix Frankfurter: I meant the specific -- Archibald Cox: The report says two things. First, it said that it did not wish to impede mergers between two little concerns in a single town. Felix Frankfurter: I thought -- Archibald Cox: Second, it goes on as set forth, I read it at pages 79, 80 -- Felix Frankfurter: I thought it was your extrapolation from -- Archibald Cox: It's on pages 79 and 80 of our brief. Felix Frankfurter: Well, thank you. Archibald Cox: I would like now, if I may, because I think that is simply a point that I can't add to the test that we got over, it seems to me that what we say is consistent with the interpretation of the statute in light of its purposes. I would like now, if I may, to go back to the question of the vertical combination between one of the dominant firms, manufacturing facilities and the major independent remaining outlet in the country. I had pointed that the outlet buys 1.7% of all men's shoes, 1.5%, I think it is of all the children's, and a smaller percentage of -- no, I got it wrong -- 1.7 of women's, 1.5 of children's and a much smaller percentage of all men's shoes. The claim is that by putting these together, Brown is foreclosing selling opportunities for other manufacturers and thus, substantially lessening competition in the manufacturer's market. Now, they sell all over the country, this problem about “section of the country” does not arise in connection with the manufacturers' market. With respect to what is the appropriate line of commerce, I suggest that before looking at the evidence, we consider, why does one look at the line of commerce? And the reason as I see it is, is that it bears out of the section of substantiality. Substantiality is a matter of relative as well as absolute size. And to determine the relative size of the Kinney market, you have to decide in what line of commerce or what market set Kinney sells. So that the -- so the question of line of commerce in this part of the case boils down to the question, “What is the market in which Kinney purchases?” The similarities and differences between Brown's production and Kinney's production which cover pages of the appellant's brief are utterly irrelevant because we're concerned with the vertical, not a horizontal merger. Now, this one other respect in which the distinctions between Brown's production and Kinney's purchases in terms of style, price and so forth, may be important. The differences may bear on the extent to which Brown can fill Kinney's needs. And that in turn, of course, would bear on the question whether this may substantially lessen competition. But in terms of the market in which Kinney buys, I simply submit that if you look at the range in which Kinney buys, which you will conclude that the only possible way of describing it is men's, women's and children's shoes that it covers such a broad price range, the figures are in the brief, that there isn't any other way of putting it and that the propriety of doing that is emphasized by the testimony I mentioned earlier about what ultimately happens on the retail and after the shoes were passed through Kinney. John M. Harlan II: (Inaudible) Archibald Cox: Then you would find that Kinney buys 1.3. Indeed, the Government's original argument was that you should take shoes in general. John M. Harlan II: That was rejected? Archibald Cox: That was rejected and it was narrow. Of course, I should say that I don't quite understand why Mr. Dean wishes to narrow the line of commerce. If he does, he hasn't ever stated what his line of commerce is because the more you narrow the line of commerce, while you may find that this little effect in some lines, you will find that there's a much bigger effect in others. For example, if you said that the line of commerce involved here was women's shoes to the middle and low income groups, that Kinney's proportion would rise a great deal, so would Brown's because neither of them sells the expensive shoe. And if you narrow it down to a particular price line, you will, without taking the time, find some price line in which Kinney has not 1.7% of the women's shoes but 3% of the women's shoes, and Brown could make them. And the statute says, “In any line of commerce” so that while we think that the District Court's findings were right, we think that any narrowing would lead to the conclusion that we had a stronger case with respect to some particular line although not to others. So I come then to the question whether the combination is, one, the effect of which maybe to lessen competition. As I pointed out earlier, this is in terms of function just like the du Pont General Motors case, and the thesis here is much like the thesis in the du Pont General Motors case, it rest as was in the Columbia Steel case upon the very high probability that a subsidiary will deal only with its parent for goods that the parent could fragment. And what the other manufacturers in the industry are concerned about, the Government is considered about is that Brown will take over these markets. Now, can Brown manufacture the shoes needed by Kinney? In the first place, I should point out that the tables in the back of the appellant's briefs are highly misleading, if they are intended to bear on this point -- if you would turn, for example, to page 7 (a), the next to the last page in Mr. Dean's main brief, you will find that he has set forth the percentage distribution of Brown's production -- using Brown's at the various price ranges, using Brown's production as the total universe and the percentage distribution of Kinney purchases using all Kinney's purchases as the total universe. With comparing percentages with percentages, doesn't give you any indication worthwhile at least of the extent to which Brown's volume of production are types of shoes it produces are such as Kinney would normally find. Take for example, just about in the middle of the chart, the manufacturers' price range, -- $5.40 down to $4.81. And the figures set forth, there are 18.9% of Brown's production is in that range and 31% of Kinney's purchases are in that range. Now, if you use absolute numbers, Brown produces 640,000 pairs of shoes, men's shoes other than work in that range and Kinney buys 113,000. So Brown can make all the shoes Kinney would want in that price range so far as price range is bare on this, without any convergence or change whatsoever. This is one illustration. Others are equally dramatic, others show that Brown could make only part. Measured by the existing overlap at 1955 prices, Brown could supply 35% of the men's shoes needed by Kinney, 30% of the women's shoes and 50% of the children's. But we think the figures should be pushed a great deal higher than that. In the first place, Brown can adapt its production to Kinney's needs. It's makeup division, which Mr. Dean tells us he's losing money, sold 19,000,000 shoes in 1950 and 34,000,000 shoes in 1956. Apparently there, he could've possessed in losing money as they thought it would. The makeup division is the one that sells manufacturers' other brands. Brown opened 18 new factories between 1945 and 1955. When you open a new factory, of course, you have a chance to put in new machinery and to hire a new work force and this problem of piece rates doesn't get involved at all. It made 13 major changes in machinery in the five year period, 1951 to 1955, again, this sort of thing that lends itself to the adaptation of your production facilities to your market. And there was from manufacturers, a great deal of -- well, there was testimony -- ample testimony that supports for the District Court's finding that manufacturers are able to convert their production to somewhat different lines up or down. It is true that the habits of workers in working at a certain piece rate tend to impose some restraint provided you don't open a new factory or put in entirely new machinery. But at the same time, as these manufacturers explain, there are ways and terms of the kind of material you used, the way you have cut it, and other ways of manufacturing for a particular market. Furthermore, it should be pointed out that there was a drawing together to train Brown's price ranges at Kinney's because Kinney was beginning to upgrade as it went into the suburban markets. And Brown was also seeking to emphasize the new markets in the suburban areas. And in those areas, their lines would naturally tend to merge without any convergence of the machineries. Would Brown take over Kinney's purchases? Well, we know something about what would happen from the past. Brown had acquired other firms. The appellants at page 188 of their brief make a good deal of the fact that when Brown purchased Wetherby-Kayser, Wetherby-Kayser kept on purchasing from other manufacturers. They set forth their purchases from other manufacturers. No, I guess their total purchases and down below it, the purchases from other manufacturer. You might be interested in writing in under the purchases from all manufacturers. The purchases from Brown, 28,801 in 1951, before the merger, 23,144 in 1952, the year of the merger, 137,958 in 1953, after the merger, 1954, I can't find, 1955, 282,000 in 1957. In other words, Wetherby-Kayser's purchases from Brown in those five years increased 10 fold whereas the purchases as a total had only doubled, so that there's a marked tendency. I pointed out just before the recess in answer to a question from Justice Whittaker that this same kind of thing had happened, when Brown took over Wohl. Wohl's total purchases between 1950 and 1957 increased 60%. Wohl's purchases from Brown increased from 2,800,000 to 12,000,000 or 320%. Brown had been in 1950, doing it quickly, something more than 10% of Wohl's total purchases and it increased to something more than 33% of Wohl's total purchases. In our brief, we have pointed out that there was the same drawing together of purchases and sales between companies within the unit when Brown took over Regal. Now, so far as Kinney is concerned, Brown is taking over the Kinney purchases. And I think that in measuring their effect, one should note first that this isn't the beginning of the merger and second that this has been a litigation all the time. Nevertheless, Brown had made no sales to Kinney prior to the merger. The next year, 8% of all Kinney's purchases came from Brown. Brown had already become Kinney's largest single supplier. Adding what had happened in the case of other firms, to what had happened in the beginning, in the case of Kinney, and to the probabilities that a manufacturer would use, so far as possible, it's own captive outlet. It seems to us that it is certainly fair to conclude here that there will be a tendency for Brown to foreclose the Kinney market to other manufacturer. Now, this is isn't just something that we've thought of. The President of Brown in buying Kinney had this very thing in mind. He was asked when he was testified that what was your primary purpose in acquiring the stock of Kinney's. It was our feeling in addition to getting a distribution into a field of crisis which we were not covered, was also the feeling that if Kinney moved into shopping centers in these freestanding stores, they were going into a higher income neighborhood. And they would probably find the necessity of upgrading and adding additional lines to their very successful operation that they have been doing. And it would give us an opportunity we hope to be able to sell them in that category. John M. Harlan II: What page is this? Archibald Cox: This is page 1323 of the record. We hope to be able to sell them in that category, and this was stated in answer to the question, “Why did you acquire Kinney?” It's on that evidence that we think that the Court was amply justified in finding that this may tend to lessen competition in manufacturers' selling opportunities. Then we come to the question whether the segment of the market is foreclosed. 1.7% in the case of women's shoes, about that for children, and less for men's, is substantial. What is substantial is of course not simply a quantitative method. But I think that it's worth pointing out that we are talking about 6.4 million pairs of shoes a year at a cost of $16,000,000 almost $17,000,000. This acquisition, since substantiality is a matter of relative size as well as absolute size, was an acquisition by one of the giants. It would have a considerable effect at other manufacturers. Kinney's purchases, just to indicate this, equal to the total output of the seventh ranking firm. It's the production -- it equals the production of 12 average-size manufacturers in the industry. Now, of course, that isn't the way the sales were distributed and it doesn't take the loss of all your production. Virtually, to ruin a manufacturer. If you assume that the sudden loss from a tenth to a fifth of the manufacturers' market we're enough to a very seriously injury, and that Kinney's sales were distributed, somewhat that way, the number affected, if all Kinney's purchases were taken over by Brown would come into at least 65 or 100 of the remaining manufacturers in the industry. Note too, that this is in an industry in which the market is already trending to our concentration. The number of plants operated by the big four went up 35% in the period 1950 to 1956. The number of plants operated by Brown rose 62%. The five largest manufacturers had already acquired 19 independent manufacturers. Between 1947 and 1954, the number of independent, I guess I pointed this out this before, had declined 10%, and from 1954 to 1958, another 10%. This easy entry to the industry is theory. It was an unanswered question, the United Shoe Company witnesses were not able to testify to more than one or two people who had entered and they'd been backed before 1950. I wonder, Mr. Chief Justice, if I might have just two minutes to -- Earl Warren: You may. Archibald Cox: -- finish off this point. Earl Warren: You may. Archibald Cox: I think that's all it will take. Earl Warren: You may. Archibald Cox: The processes of vertical integration were already narrowing the market for independent manufacturers. Between 1950 and 1955, the big six manufacturers had purchased 13 retail chains with 13,000 outlets. Between 1948 and 1954, I'm sorry these jumped around so in the years but those were the figures that were available, the percentage of stores owned by chains with 101 stores or more increased 62% so that by the time of the merger, they constituted 33% of all shoe stores, again, evidence of the concentration of buying power in the manufacturer's market. The franchise program was growing very rapidly, as I pointed out earlier. Between 1945 and 1956, the big six manufacturers increased their own owned-and-operated outlets and this leaves out the franchise dealers from 14,000 to 38,000, a 170% increase. Other manufacturers were pursuing this same policy. Indeed, one of the basic problems is that this is a self-feeding reaction. When Brown who had been selling shoes in Los Angeles through the (Inaudible), found that the (Inaudible) had been bought up by one of the other big manufacturers, Brown rushed in and bought Wetherby-Kayser. When Florsheim was brought up by one of the other three big manufacturers, Brown rushed in and bought up Regal. And indeed, the nature of this interplay or chain reaction was explained by Brown's president in a statement in 1955, which I think chose that this process is likely to continue unless it is stopped here. My view point can pretty well be summed up like this, “One of our objectives in acquiring retail stores is to protect and guarantee distribution of our products in areas where independent retailers could not give our brands adequate distribution because of their affiliations with other branded manufacturers.” The gist of the case, as we see it, is that when you take this trend, that if is allowed to continue that this market will cease to be open and competitive to all manufacturers and characterized by a lot of small manufacturers and that in this industry, the opportunities for the small businessmen, as unhappily they have in others, will be lost. Now, I would just stress one sentence and that is -- Earl Warren: You may -- you may take two or three minutes more. And I will give Mr. Dean the same amount of time of course? Archibald Cox: The other point which I won't take time to emphasize in full, thank you Mr. Chief Justice, is that when you note the effect through the vertical integration in the manufacturers' market and note the effect of the horizontal integration in the retail market, and add them together, that they then concentrate economic power and give the combination a leverage, a power in the market that puts everyone else, those independent, at such a disadvantage that even if they were not a violation of Section 7, looking at these things independently, the total effect would most surely be a substantial lessening of competition. And all we have to show is that it may substantially lessen competition. Now those advantages are outlined in our brief, and I think really, I shouldn't address this any longer on the Court's time. Thank you. Earl Warren: Mr. Dean, you may have a few moments extra also. Arthur H. Dean: Mr. Chief Justice, and may it please the Court. I realized that the figures in this case are very large. And I realized they are very difficult to carry in your mind by understanding -- the Solicitor General said that the manufacturers acquired some 13,000 outlets. I believe, according to their brief, it should be 1,300. And that the manufacturer's own increase should go from 1,400 and not 14,000. Archibald Cox: Oh, you're correct. Arthur H. Dean: It's very difficult, I realized to carry all these figures. I would like to reply if I may to Mr. Justice Frankfurter's inquiry to me as to the specific findings of the District Court to which we take exception. Other than the judgment, and the final judgment, there were no specific detailed findings. Felix Frankfurter: Are you challenging the opinions? Arthur H. Dean: We challenge the opinion. Felix Frankfurter: They are scattered in the opinion. Arthur H. Dean: They are scattered in the opinion. According to the undisputed evidence between the Government and ourselves, the Brown's percentage in manufacturing (Inaudible) and pairs in 1955 was 4% and Kinney was four-tenths so, 1%. The Court used the figures of five and a half of 1%. Although there was, as I said earlier, a detailed evidence by merchandising witnesses -- merchandising experts, the Court made no effort whatsoever to analyze the impact of the retail competition in market by market. There was no attempt to analyze what the market was in any particular situation as to where people shop, as to how they shopped, as to the whether -- our witnesses testified that they stayed in the same price ranges and that they did not normally go beyond certain areas. The Court, without analyzing that evidence in any of the cities, without going into it any detail, without attempting to find what the actual practices were merely said conclusory that with every shoe store in the same city was in competition with every other shoe store in the same city, and that every shoe store without regard to price or quality or use of merchandize was in competition with every other shoe in the categories of men's, women's and children's. We believe that it is required by in any economic analysis or any legal analysis or the decisions of this Court as to what is a line of commerce, and I believe it must be a line of commerce and in the “section of the country” that there must be a detailed analysis of the impact of competition in a line of commerce found from the evidence in a community. Now, there isn't anything -- there isn't anything in the court's opinion that indicates any connection whatsoever between this 141 cities of 10,000 or over and yet they're immediately contiguous in any other state (Voice Overlap) -- Potter Stewart: By the nature of things, Mr. Dean, retailed sales are made in metropolitan communities? They're not made out in the woods or in the farms somewhere? Arthur H. Dean: That is -- that is correct, Mr. Justice Stewart, but they're not made nationally. Retail sales are not made all over the United States. It depends upon your climate. The same type of shoe is not sold in Florida as is sold in Maine, the same price range is not sold -- Potter Stewart: Well, we will go to the line of commerce point. Arthur H. Dean: Yes. Potter Stewart: But, I'm -- I thought you were now addressing yourself to the “section of the country” point. Arthur H. Dean: No, I said you had to have a -- Potter Stewart: Both. You had to have both. Arthur H. Dean: You had to have both. But I believe that the testimony is very clear that there's a vast difference in the economic incomes of the various cities and the prices ranges in these various cities. The type of competition, the type of shoes that will be bought in Fort Worth, Texas would be quite different than the type of shoes that would be bought in Wilshire Boulevard in Hollywood. Tom C. Clark: What were the effects? What were the effects of the merger? Arthur H. Dean: Well, it isn't clear, Mr. Justice Clark. He takes these 141 cities in which Fort Worth is included and simply says that he takes each of the 141 cities of 10,000 or over and immediate or contiguous area. But there's nothing further. Tom C. Clark: Do you think -- do you think Texarkana would be -- Fort Worth would be affected under that? Arthur H. Dean: It could be. I believe that there were proper evidence given to it, but there was no analysis of it. There wasn't any attempt whatsoever made in the opinion to analyze the impact of competition in any one of these cities or how the competition in any one of these cities related to the other 140. Tom C. Clark: (Inaudible) Arthur H. Dean: Well, I think -- I think what Congress meant from the testimony was what we contented for and I believe what most people thought that they meant was in a standard metropolitan area in which there would be normal competition, that is the Government separates out, for example, the City of Texarkana and gives all of its figures for that political boundaries of that city. Now, everyone knows that Texarkana is within the general shopping range of -- of another larger city in Texas, just as they know that the (Inaudible) is within the larger shopping center of Omaha. So that if you take all these figures for a very small political unit, as the Government tries to do, ignoring the fact that it's right next to a very large metropolitan area, you can get some terrific distortions as they do in these appendices that they put in their reply brief. In their appendices, they rely on the 1958 census which were not available till 1961 and were not introduced into evidence. And they tried to take peerage figures without any regard to the discrepancies in income throughout, and then they get some terrific distortions which we point out at considerable length in our reply brief. Tom C. Clark: Do you think the (Inaudible) Arthur H. Dean: I believe that in certain types, it could be in 10,000 population, but I would think it also have to have evidence as to whether that city was primarily a shopping area all onto itself or whether withdrew a certain percentage of its shopping from a surrounding area. Tom C. Clark: (Inaudible) Arthur H. Dean: Yes. There were some -- there were some 14 witnesses, not one who testified as to retailers. And they all testified that depending upon each city, they testified as to the roads and the bridges and the highways as to where the shopping came from. And they -- I think the evidence is very clear that you cannot use the political boundaries of the city. Now unfortunately, we don't know precisely what Judge Weber meant by the immediately contiguous area. So therefore, we don't know whether the figures -- their old figures are -- the figures for the political boundaries and their figures for the standard metropolitan area, but we don't quite know what figures you would use for this rather indefinite area of the immediately surrounding and contiguous area. You can get some -- some very astounding figures if you try to average your national sale. We point out that -- that part of the Government's own figures in a town twice the size of Dodge City, they get fewer sales of shoes per capita. We also point out some other probably fantastic distortions that they get from these appendices that put it in their reply brief. Potter Stewart: The point there would be the Dodge City draws on a large area for its customers and some other suburb in New York which maybe, too, twice the size of Dodge City draws on a much more compact group of people? Arthur H. Dean: Well, on the -- in the -- Potter Stewart: I suppose in certain -- in certain lines of commerce, Denver, Colorado draws on the entire area, the entire rocky mountain area. Arthur H. Dean: Yes, it would. Potter Stewart: It's that whole section -- Arthur H. Dean: It would for certain type of shoes, Mr. Justice Stewart. There are certain people in the shoes, let's say, 1295, 1495, 1695 would go long distance as for their shoes. The evidence in the record is however that for people who shop within the popular price stores of Kinney that they generally don't go more than a few blocks for the purchases of their shoes. William O. Douglas: I noticed that on page 48 of your reply brief, you state this, “Appellee concedes that the merger of Brown and Kinney's manufacturer does not violate Section 7.” I've been looking for that -- for that concession, I'm unable to find it. Can you put yours -- Arthur H. Dean: Yes. Yes, Mr. Justice Douglas, it's on page 54 of the -- of the Government's main brief. In the second paragraph on page 54, “Appellant treats the case chiefly in terms of the manufacturing the market. It seeks to show that Brown and Kinney do not compete because they have as a matter of fact different lines of shoes. This now just as might be appropriate, if there were any issue concerning the effect of the combination upon competition for Brown and Kinney as manufacturers. The District Court found however that the merger would only slightly affect that kind of competition. The Government accepts that finding. Since there wasn't any finding of any substantial lessening of competition of manufacturing, I assumed that the Government accepts that finding of the District Court. William O. Douglas: I thank -- thank you. Arthur H. Dean: When I was discussing the -- the difference between the sales to mostly to these younger dealers who started in the business on this Wohl Plan account with a minimum amount of capital and where they, after taken out their salaries and expenses, remitted the weekly proceeds. I used the term “sales on consignment.” I should not have used that term because I find that title actually passes in the sales to those dealers on the Wohl plan account. On the question of this increase of Kinney -- of Brown sales to Wohl after it acquired Wohl, I like to say that most of the acquisitions prior to Wohl were very minor and in many instances were caused by debts or some cases bankruptcy and where the manufacturing plants were taken over with request of Chambers of Commerce or labor people. But on page 185 of our main brief, second full paragraph, I point out that Wohl's purchasers from its outside shoe suppliers other than Brown have risen from 20,900,000 in 1951, and 23,886,000 in 1957 so that Wohl's purchasers from its outside shoe suppliers. Several years later replaces much as its shoe purchasers from Brown and it's during this same period, Wohl's purchasers from outsiders increased from 160 to 167. One further fact and that is that Kinney purchases most of its shoes in as very low price range for the sale in its price range. And the Wohl however, in these leased departments, sells not only in the medium grade fields but in the, some cases, the higher grade fields. Although it's very minimal, Mr. Justice Stewart, it could be even about 4% of the sales of men's shoes in the leased departments, it possibly could be that some of them might be selling in the same price range as Regal. I think it would be minimal but it might be possible. From the total number of outlets, 70,000, all shoes, Kinney and -- and Brown combined would only be 0.91% of these total 70,000 outlets. There were no witnesses who testified as to any possibility of their being -- their sales to Kinney being displaced by Brown. The sole and only witness, there was only one is in Government's Exhibit 251. That question was not asked by the Government. And there isn't testimony of any witness or of any implication, incidence of any such testimony. I just, again, to put Kinney into perspective, its sales and retail were 41,000,000. Now, it is in this lower the price field. But the serious sales at retail were 104,000,000. Edison Brothers, all women's, 87,000,000. Kinney was 85,000,000 and there's testimony that the famous bar store was the largest -- with eleven departments, the largest retail outlet west of the Mississippi River, and the Montgomery Ward was 41,000,000. All of these are larger than Kinney's. The court, seemed to us, erred in using the substantive measure. As the Court knows this was not used by Judge Higgs (ph) in the American Crystal Sugar case or the Transamerica case or by the Federal Trade Commission in the Pillsbury case. It answered one question, Mr. Justice Whittaker, on these wholesale sales of Wohl -- 75% of Wohl's wholesale sales are made to dealers who are not on the Wohl Plan or were not on the Wohl Plan and 25% are made to those on the Wohl Plan. I would like to call the Court's attention in conclusion to our reply brief in answer to these appendices of the Government and to the fact that we believed that these appendices include what are wholesale sales to the independent dealers and the retail sales of those same dealers and to what they're trying to -- therefore the numerators and the denominators are in inconsistent basis and they're trying to compare apples and bananas with oranges. In conclusion, may it please the Court, we submit that there was complete failure to analyze the evidence on the part of the District Court. The Government has accepted the fact that there was no substantial lessening of competition in manufacturing. And we believe that our briefs and the evidence will conclusively show that there was no substantial lessening of competition in the retail field or in the manufacturing and retail field combined. Earl Warren: Mr. Dean, on your opening argument, Mr. Justice Harlan asked you the question as to jurisdiction namely, whether -- whether you thought this case was properly here under -- under 25 U.S.C Section 29, and I wondered if you and the Solicitor General would be willing to submit a memorandum to us on that score. Arthur H. Dean: Yes, Mr. Chief Justice. Earl Warren: Would you that please? Arthur H. Dean: Yes. Earl Warren: So that there won't be any misunderstanding, I'm going to ask Mr. Justice Harlan, if you will restate the question because he'd like it to have it. John M. Harlan II: Well, I wonder if I could restate it because the Solicitor General's answer doesn't satisfy me, that is the answer. My problem is this, whether or not in view of the fact of this decree, although in paragraph 1, undertook to order an unqualified divestiture, nevertheless, goes on to say in paragraph 4 that the divestiture is to be subject to approval of the court on notice by parties in submission of the plan, whether an appeal at this stage satisfies the particular requirements of 15 U.S.C. in Section 29. It is perfectly true and what the court said as to the purpose of that Section at page 558 of 279 U.S. United States, California. While it is perfectly true as the Solicitor General says that ordinarily an appeal to the Court of Appeals in an equity case is reviewable whether -- even though its interlocutory, that is by reason of the particular provisions of Section 28 992 (a) and Section 15 U.S.C. 29 which lays the foundation for this appeal excludes in Government antitrust cases the application of that Section which the Solicitor General, I presume had in mind, in appeal to Government in antitrust cases. I don't know what the answer is. That's my problem. Arthur H. Dean: We would be very happy to submit a memorandum on that point. Earl Warren: Mr. Justice Frankfurter would like to add an addendum to it. Felix Frankfurter: I would like to add if considered whether assuming it cannot be brought here under Section 29 directly, whether it can be brought to -- whether the case can be transferred to the Court of Appeals on this record, or whether neither this Court nor the Court of Appeals has jurisdiction. Arthur H. Dean: (Inaudible) Earl Warren: Thank you gentlemen.

William H. Rehnquist: We'll hear argument next in No. 00-191, Federal Election Commission v. Colorado Republican Federal Campaign Committee. General Underwood, I'm sorry, I called you General Greenwood before. Barbara D. Underwood: Thank you. William H. Rehnquist: I now recognize you by your true name. Barbara D. Underwood: Mr. Chief Justice, and may it please the Court: Twenty-five years ago in Buckley this Court held that limits on campaign contributions can be more easily justified under the First Amendment than limits on campaign expenditures, and noted that a coordinated expenditure, such as one made at the candidate's request, is treated as a contribution for this purpose. Nothing in the First Amendment requires an exemption from these rules for political parties. Congress recognized that parties are different from other political actors and gave them somewhat higher contribution limits and much higher limits on coordinated expenditures. William H. Rehnquist: I think that you do have a problem in sustaining this part of the congressional act because the basis for sustaining the limits on contributions is the corruption rationale that has been in our cases for, you know, 50, 60 years. But it's very difficult, at least for me to see how receiving a contribution would corrupt a political party. Barbara D. Underwood: Political parties present the risk... a risk of the corruption that justifies limits on contributions and coordinated expenditures in two ways. First, because they can receive contributions in much larger amounts than other actors and then redistribute them to candidates, they provide a conduit for other actors to circumvent the contribution limits of the act. Other donors can make large contributions to the party which, though not technically, literally earmarked, and therefore not in violation of the specific earmarking provision of the statute, nevertheless through informal and well understood arrangements find their way through the party to the candidate and create the same risk or appearance of corruption as a direct contribution to the candidate. William H. Rehnquist: Well, if those informal arrangements are that actually this money is given to the party but we know you're going to give it to candidate X, certainly the Congress can prohibit that. Perhaps it already has. Barbara D. Underwood: Congress has prohibited earmarking, but the Court recognized in Buckley itself that a prohibition on earmarking cannot reach, cannot be effective to reach the whole problem of, in effect, using an intermediary to exceed the limits, and the reason is for one thing an earmarking arrangement requires something more rigid than what would usually happen. I mean, it's not earmarking, for example, if... within the meaning of the statute, if a contributor understands that there is a good likelihood that the money will be passed by the party to the candidate, although there might be reasons why it would not. In that case it's not earmarking, but it still has the prospect of being regarded by the candidate and by the donor as virtually a contribution. Antonin Scalia: Let me get this straight. I can understand why there's, you know, corruption if the donor gives the candidate money and there's a quid pro quo, the candidate says I'll vote for your bill. But you allow individuals to spend $100,000 in their own advertising for this candidate, and it says at the bottom of the ad, you know, paid for by Schwartz, and the candidate knows Schwartz has bought hundreds of thousands of dollars of television advertising, that is perfectly okay, right? Barbara D. Underwood: That's the distinction between-- Antonin Scalia: But if Schwartz gives $100,000 to the Democratic Party, we're suddenly worried that the candidate is going to be corrupted because Schwartz gave $100,000? I can't understand that. That seems to me so fanciful to think that the one situation presents, you know, an opportunity for corruption and the other doesn't. You're much better off if you want to corrupt Schwartz, spending the money on an advertisement that says presented, you know, presented by XYZ Corporation. Barbara D. Underwood: --Well, the Court in Buckley had to balance a number of different concerns in arriving at its distinction between independent expenditures, which will certainly often please the candidate, but which it regarded as sufficiently important in First Amendment terms so that limiting them to protect against possible indirect corruption was not permissible on the one hand, and contributions, direct contributions to the candidate, which the Court saw as having a lesser First Amendment component on... importance on one side-- Speaker: Right. Barbara D. Underwood: --and a greater potential for corruption on the other. That distinction having been made, coordinated expenditures are the functional equivalent of contributions. When you pay somebody's bills, it's no different from handing them a check, and that's what we have here. Now, the additional point that I was addressing was the use of an intermediary to make the, that is, if we, if we have a prohibition on contributions and coordinated... not a prohibition, a limitation on contributions and coordinated expenditures to protect against corruption, then it can be easily circumvented through intermediaries, and there are only a few ways to solve the intermediary problem. One of them is to limit contributions to the intermediary, in this case the party. Another is to limit contributions by the intermediary to the candidate. That would be from the party to the candidate. And the third is to try to prevent earmarking directly. Each has its pros and cons, and the statute uses each of them to some degree to complement the other. This Court recognized in Buckley that it's impossible to police earmarking sufficiently because of informal and nonrigid arrangements. The approach of limiting contributions to the party so that it can't operate as a pass-through, would starve the party of needed funds. It has disadvantages of that sort. There is a limitation, but it's a high limitation. Antonin Scalia: But what does the party use its limited funds for? I mean, the whole purpose of a party is to support candidates, and to say that the party can't use its funds for candidates is to say that you know, parties don't... cannot play a significant part in American politics. Barbara D. Underwood: The section-- Antonin Scalia: And you talk about the significant First Amendment value of an individual being able to spend his money on an ad for the candidate, there is significant First Amendment value in that. It is not clear to me that there is any less First Amendment value in people being able to band together in political parties and in unison support political candidates. That's a very important First Amendment value, too, and you're saying they can't do that. Barbara D. Underwood: --Well, no. Antonin Scalia: Well, you're saying they can do it to a very limited degree, although rich individuals can take out their own television ads, a party which gets contributions from Joe Sixpack in five and ten dollar amounts cannot do that to support a candidate. I mean-- Barbara D. Underwood: No, the party can do it in unlimited amounts when it is making the same kind of independent expenditure that the Court held was entirely protected in Buckley and in-- Sandra Day O'Connor: --I mean, we're only talking here about the coordinated hard money, so to speak, party expenditures on behalf of candidates. Barbara D. Underwood: --That's correct. That's correct. Sandra Day O'Connor: That's such a tiny segment of the problem. We're not talking about soft money here, right? Barbara D. Underwood: That's right. Sandra Day O'Connor: Not talking about general limits on contributions? Barbara D. Underwood: That's right. This is a small segment of the problem. Speaker: Okay. Barbara D. Underwood: It is a segment-- Speaker: Given that it's a small segment of the problem, what showing is there that there are enough problems with this small segment of corruption that justifies the limit? I mean, it's a little-- Barbara D. Underwood: --Well-- Speaker: --I don't know quite how to deal with it. It's such a small segment of the problem. Now what's the justification here for this limit? Barbara D. Underwood: --Well, the evidence that there is a risk of intermediaries, parties in particular, but intermediaries in general, aiding donors to circumvent statutory limits is found in several places. First of all, in the Senate debate in 1973, and we discuss this at pages 28 and 29 of our brief, several Senators made... expressly observed that a party can act as a conduit for an individual who has reached his contribution limit. Speaker: So the danger is that contributors to political parties are using those contributions to somehow corrupt the candidates? Barbara D. Underwood: Correct. Speaker: And that's kind of an indirect sort of a thing? Barbara D. Underwood: That's right. That the anti-earmarking provision itself is evidence of Congress' concern about that, about the evasion of the limits on donors. Speaker: And you say the earmarking provision isn't sufficient? Barbara D. Underwood: That's correct. Speaker: And where do we look for this evidence of concern? To stray remarks by some Members of Congress or is there anything else? Barbara D. Underwood: Well, there are remarks by Members of Congress. There is, better perhaps even than anything congressional... anything that was said, the fact that Congress enacted an anti-earmarking provision which shows that it was concerned about the danger that donor A would avoid his... the limit that he could contribute to candidate C by passing it through B. Speaker: But you think that's not sufficient? Barbara D. Underwood: That's correct. And this Court said it wasn't sufficient in Buckley, and observed that that's part of why... part of what justifies the limit on individual contributions in a campaign, the total limit, not-- Speaker: Is the argument, General Underwood, it is not that the party is corrupted, I take it, because that would seem just fatuous, but the party is kind of a means to corrupting the candidate himself? Barbara D. Underwood: --Yes. There are two arguments about the risk of corruption. At the moment the argument that I'm talking bout is that the party is a means... that the contribution limits on individual donors are justified as a means of preventing corruption and the risk of corruption donor to candidate, and that the party, as an intermediary, can facilitate, can essentially undermine that mechanism that the individuals can exceed their contribution limits. Speaker: So it's a prophylactic rule, kind of? Barbara D. Underwood: Well, I would say... I wouldn't call it a prophylactic rule. I would call it an amplification or a support or a backup to the anti-earmarking provision. It's addressed at the same problem that the earmarking provision is addressed at. Speaker: But it covers much more than earmarked funds. Barbara D. Underwood: But it covered-- Speaker: It covers any funds that the party has, so it is prophylactic. It's excluding the party from doing many things that wouldn't be corrupting, right? Barbara D. Underwood: --Well, no more thing that the contribution-- Speaker: Because this is the fear that some of them might be. Barbara D. Underwood: --Than the direct contribution limit. Speaker: Sure, but that's prophylactic, too, I suppose. Barbara D. Underwood: Well-- Speaker: Do you agree with-- Barbara D. Underwood: --Yes, it is not the case... I'm sorry, Justice Stevens. Speaker: --I was just going to ask you, do you agree with the proposition, or to what extent do you disagree with the proposition that the basic function of the party is to elect candidates and therefore a limitation on the ability of the party to give money to candidates pretty well disables the party from doing what it was created to do? Barbara D. Underwood: I don't think it disables it. I would agree that it... that the function of the party is in large part to elect candidates, and that a limitation... I guess any limitation on it... but I... if it were prohibited from making any contributions to candidates and if it were prohibited from making independent expenditures, it couldn't accomplish its purposes. There is no limit on its independent expenditures. There is no limit on a large variety of party building and get-out-the-vote and message-communicating activities, and there is a not... there is a not... there is a limit, the limit on contributions to candidates, and the limit on coordinated expenditures which are a form of contributions is not disabling. It's quite a bit higher than the limit on any other contributor, recognizing the role of the party, but just attempting to put a ceiling on it. It's a limit that's adjusted. It's basically-- Speaker: So it serves free speech for the party to spend money on behalf of a candidate without discussing with that candidate the candidate's views and to make sure that the candidate's campaign is the same as the party. It serves free speech if the party doesn't coordinate with the person that it's backing. Barbara D. Underwood: --Coordinated expenditures have-- Speaker: It's a very strange, very strange calculus. Barbara D. Underwood: --Coordinated expenditure has a technical meaning here, and it doesn't violate the prohibition on coordinated expenditure for the party to do something that is consistent with the candidate's campaign. What the coordinated expenditure prohibition was designed to prohibit was the candidate essentially paying the media bills for the candidate, and the record contains evidence that the over... that the predominant forum that coordinated expenditures take is exactly that. Speaker: What if, what if the party consults the candidate and says, you know, we're thinking of running a series of issue ads, and we're going to say you're a big supporter of gun control? Now you that will help you or hurt you? We don't want to do it if you think it will hurt you. What about it? And he says, you know, one or the other, it doesn't matter. Would that not be a coordinated expenditure? Barbara D. Underwood: I'm not at all sure that it would be, Justice Scalia. There may be difficult cases at the margin, as the donor takes more initiative and the candidate less. Speaker: But that's a pretty fundamental question. I don't think that's a marginal question. This question has to come up all the time. Can the party consult the candidate at least on what issues the candidate wants the party to address in its advertising? It sounds like coordination to me. Barbara D. Underwood: Coordination isn't even a statutory term, but the Federal Election Commission has been developing regulations to try and make more precise exactly what is prohibited here. It is clear, it has been clear from the outset of the statute that the purpose of the prohibition here, it's a permission for independent expenditures. The limitation on coordinated expenditures is to prevent the candidate, prevent anyone... party or anyone else... from making contributions in the form of paying the candidate's bills. Speaker: All right. Let's say that this is not a coordinated expense. Are the parties allowed to do it? Which would mean that a fat cat industrialist bent on corrupting the candidate could write to the candidate a letter and say, you know, I'm giving $100,000 to the Democratic National Committee to spend on gun control issue advertising, which I am sure will help your campaign. Barbara D. Underwood: Well, that's a feature of any independent expenditure. It is so-- Speaker: No, but what I'm saying is, once you allow that, doesn't that have the same corruptive effect as what you're trying to prohibit? Barbara D. Underwood: --No. Although these things are all a matter of degree, it is the case, I mean, it's... it is the case that Congress thought that contributions over a certain limit created a potential for corruption, and that to make that enforceable, it had to prohibit as well or limit as well things that are the functional equivalent of contributions, such as-- Speaker: But it's also the case that the Congress under the statute that you're defending forces exactly the type of indirect support that Justice Scalia has just described instead of having it out in the open where everybody knows who is supporting who and who is paying money for whom. That seems to me just completely contrary to the whole idea of the truth that the First Amendment is designed to vindicate. Barbara D. Underwood: --It may be that a narrower definition of coordinated expenditures, then, seems to be sort of in the air at the moment is what would serve this method, this problem best, and the Federal Election Commission at the moment has under advisement, is considering rewriting its... considering new regulations regarding the definition. Speaker: No, we're assuming... I think we were assuming a narrow definition of coordinated expenses. We were assuming that the parties spending money on gun control advertising, after consulting with the candidate about that, is not a coordinated expense, so the party would be able to do it. We were assuming a narrow definition. And the narrower the definition is, the more it raises the same problems of flow-through to the candidate from identified malefactors of great wealth that, that you're trying to prohibit. Barbara D. Underwood: Well, Congress was trying to strike a balance here in the light of what this Court said it could and couldn't do in respect of, on the one hand, protecting the speech interests of contributors, of spenders, of independent spending and on the other hand attempting to guard against the risk, the reality and the appearance of corruption which at its narrowest is quid pro quo and moving out from that is implicit, excessive compliance that is like a quid pro quo. Speaker: Did Congress, having made the... drawn the line where it did to whatever expertise that branch of government has with political campaigns and campaign spending? Barbara D. Underwood: Yes. It has been observed before that Congress perhaps... well, that Congress is fully familiar with the practices of campaign expenditures and campaign fund-raising and with the risks and benefits that various forms of fund-raising have and that having evaluated all of those risks and benefits and taken guidance from these courts, the distinctions that this Court has drawn, its effort to, to make those judgments is entitled at least to some, some credit. Speaker: Do we owe any deference to common sense in recognizing that when Congress draws up campaign funding legislation, it is more likely to draw up a system that favors incumbents and is it not true that this rule of course favors incumbents because the one who suffers the most when he can't get significant funding from the party is the new candidate, the unknown face who is running against an incumbent? And that's what happens. Barbara D. Underwood: I think if we... I think if we-- Speaker: It doesn't surprise me that Congress would not be terribly upset by this restriction. It favors incumbents all the time. Barbara D. Underwood: --Well, common sense points in several directions. I think that the most basic common sense proposition here is that so long as there's a limit on what donors can give to a candidate, they will be trying to find ways to get around it, and one good way is to use intermediaries that are not subject to the same limits and that Congress recognized that and attempted to address it without crippling other important functions by putting a limit on the contributions, by not prohibiting, but putting a limit on the contributions and coordinated expenditures that parties can make to candidates. There is a second corruption concern, and that is the concern, not that the party would act as a conduit, but that the party leaders in charge of dispensing funds would, in effect, exact... pay for votes, would themselves tie money to legislative actions. There is no direct evidence in the record of that happening, but it is the case that if a candidate's own family can be subject to a prohibition on contributions in order to protect corruption, there is no such thing as being too close to corrupt, and-- Speaker: How does the record on the potential for corruption differ here than what was before the Court in Nixon against, what, Shrink? Barbara D. Underwood: --Well, in Nixon against Shrink... Shrink, Missouri Political Action Committee, the question was whether the corruption, the potential for corruption that justified the Federal statute also justified the State statute, and the court said that it wasn't necessary to develop new evidence of essentially the same, essentially the same problem. Speaker: That was... Shrink, Missouri, involved contribution limits, did it not? Barbara D. Underwood: Yes, it does. But so, in fact, does this case, in that coordinated expenditures are, in effect, contributions or if this Court were to conclude that they are not, then it would be decided-- Speaker: But your corruption rationale is much less if you're talking about a big wheel or, you know, a fat cat donating a lot of money to a candidate, the idea is the fat cat is going to get something in return, but the idea that a political party donating to a candidate is going to get something in return just doesn't have the same ring to it. Barbara D. Underwood: --Well, as I suggested, it does, however, I think, have the same ring to say that a political party can facilitate the very transaction that you were just describing; that is, the fat cat now not giving money directly to the candidate because he's barred from doing so, but giving it to the party to transmit to the candidate with everybody understanding exactly what's going on. Speaker: But that's a form of a prophylactic rule which we have never sustained in the First Amendment context, I don't think. Barbara D. Underwood: Well I don't think it's any more prophylactic than the prohibition on contributions in the first place. Not every contribution, in fact, is corrupt, but a limit... it's not a prohibition. A limit on contributions is designed to minimize the risk of-- Speaker: But it depends on how much you're hurting the person that's being prohibited. I just don't agree with you that, my goodness, if we can do it to families we can certainly do it to political parties. I mean, with few exceptions, the whole reason for being of a family is not to get the father or mother elected to office, and that is the whole... that is the whole reason for being of a political party, and to say that it can't do that in the most and perhaps the only effective way, by coordinating its expenditures with the very candidate is a really great impingement upon the functioning of the party, unlike the family. Barbara D. Underwood: --Well, I think the function of the family is to advance the interests of its members, but I would like to reserve the rest of my time for rebuttal. Speaker: Thank you, General Greenwood. In my elementary school there was a girl named Barbara Greenwood. Barbara D. Underwood: Well, I hope you held her in high regard. Speaker: Mr. Baran. Chief, I'm Scalia. Jan W. Baran: Thank you, Mr. Chief Justice, and may it please the Court, the statute before you makes it a crime for a political party to send one letter to every voter in the State if the candidate requested that letter or collaborated in its preparation. The issue before the Court is whether this clear, direct, and substantial infringement on political parties' First Amendment rights is justified, and based on this Court's precedent, the legislative record, and the factual record developed in this lengthy case, the answer must be no. The record demonstrates that this limit directly and substantially suppresses political party speech and does not prevent any discernible form of corruption. Moreover, this particular Federal limit stands in contrast to the majority of State laws which may restrict contributions to political parties, and contributions to candidates do not restrict the amount of party support that can be received by candidates themselves with State elections. The money that the party can spend for the prohibition-- Speaker: Excuse me. You say the majority of State laws. How many states have a prohibition of this sort, do you know? Jan W. Baran: --According to the amicus brief of the attorneys general, there are 17 current states that have such a restriction of some form. There used to be 20 states. Three have repealed these restrictions, most recently Colorado last year and also our largest State, the State of California in November of 2000 had a referendum and over 60 percent of the voters of California supported that proposition, which was number 34, and that proposition placed numerous restrictions on contributions to candidates, contributions to political parties, but at the same time repealed a short-lived restriction that the State of California had on the amount of contributions or expenditures that parties could make in support of candidates for office in the State of California. The money that the parties can use to support their candidates for the House and the Senate and even for President has to be the so-called hard money. The District Court noted in its opinion that the majority of this so-called hard money that the national parties raise comes in sums of less than $100. It is true that there are contribution limits that are somewhat higher for parties and for candidates. For my client, the Colorado Republican Party, that limit is $5,000 per year. And for national party committees the limit on individuals is a maximum of $20,000 a year. I believe the record shows that there are very few $20,000 contributions-- Speaker: Now, if you win, and I guess this is their main rationale, what they're saying, if you win, to give a practical example, if you have a family of four, I guess candidate X who is running for the Senate, can take $4,000. And then if you win, instead of $4,000, he could take $80,000 through the party. All right, so if you assume a Senate race that costs $4 million, let's say, the difference would be between whether you had to find 50 willing donors with families or a thousand. So couldn't Congress conclude that where a Senator is dependent upon 50 families with $80,000 each, the appearance, anyway, that the Senator will be quite beholden to those 50 is far greater than where he must, in fact, get that $4 million from at least a thousand? Now, that it seems to me is what the government's argument boils down to, and they're saying we never know about these corruption things or the appearance, but the difference between fifty families and a thousand families is as good as any. Jan W. Baran: --Yes, Justice Breyer, that is my understanding of their argument. I would point out that everything you just described, assuming it was lawful and did not violate the antiearmarking provisions of the current statute, would be permissible under the current system with these limits, with these spending limits. Speaker: Because they limit the spending, as you just pointed out, to the party, to the candidate directly to a hundred and some odd thousand dollars. So it's a kind of compromise. But if you win this, the limitation's gone, and therefore the first thing a candidate does is he says to the 50 people who know him the best, thank you for the four. Now I'll tell you how you give me $76,000 more. Just write the check to the party, and I'll keep a tally, and so do they. And believe me, I'll know where it comes from. Jan W. Baran: I stand by my earlier answer, Justice Breyer, that that is possible under the existing system, that a candidate, taking your hypothetical, could say I don't want to raise contributions from a thousand people. I will simply go and collect the contributions you just described from a large family and direct it towards the party. Speaker: Isn't there then a limit on what the party can give him? Jan W. Baran: Yes, there is a limit. But they can do it within these spending limits. Speaker: Well, within that limit, right, but the different-- Jan W. Baran: Within the spending limits. And if this practice is actually plausible, which I don't believe it is, surely there would be a single instance of this type of contribution practice that would have occurred in the last 25 years under these limits including in states with very sizable spending limitations on parties. Speaker: --Well, I presume-- Jan W. Baran: And there is none. Speaker: --there are... are there not instances in the record in which individuals who have contributed their maximum directly to the candidate have then made contributions to the political party? I mean, I assume that. There's no dispute that that has happened. Jan W. Baran: That is correct. Contributors do contribute to the party who have also contributed to candidates. Speaker: If that has happened, then exactly what Justice Breyer is describing can occur, but it occurs in comparatively piddling amounts as against what would be possible if you win this case. Jan W. Baran: I disagree, Justice Souter. The hypothetical that has been advanced here is that there is an incentive for candidates to go to individual contributors and urge them to donate money through the party without violating the anti-earmarking provisions in large sums of $5,000 or $20,000 in Justice Breyer's hypothetical. Speaker: That is the assumption-- Jan W. Baran: There is no-- Speaker: --Why is that implausible? Jan W. Baran: --I believe it's implausible because there is not a single instance of that having happened in the 25 years of the-- Speaker: Well, I think we may be playing with words. There are instances of contributors to individuals who are also contributors to the party, and I suppose those instances do not stand out as outrageously obvious examples of, you know, something close to quid pro quo because the amounts are small. We're not able to interpret the things more finely than that, but it seems to me that the suggestion of the question is intuitively sound, and I don't know why it isn't intuitively sound. You're saying, well, it's not intuitively sound because we have no examples of what would go on if I won the case. And we don't have those examples because we have the current law in place. Jan W. Baran: --No, Your Honor, I believe we have no examples because after 15 years of litigation in this case, including five-and-a-half years of discovery, including depositions of numerous party officials and elected officials, there's not a single instance of any contributor, any contributor giving any amount of money that is designated for a specific candidate. Speaker: I'm sorry, I knew that, but I may have read the newspapers with a cynical eye, but it seems what I read in the papers says that some candidates, anyway, write letters to their friends and say, now, write checks for X to me personally, then you max out. Now here's what you do next, write some checks to the party. Now at this level you max out again. Now here's what you do after that. You write some soft money checks, and there is no max. Now, have I read the newspapers wrong or is that possibly practice in respect to some political candidates? Jan W. Baran: I think the newspapers also reflect that there are people who are pleading guilty and actually going to jail-- Speaker: No, no, no, but-- Jan W. Baran: --for making earmarked or straw contributions. Speaker: --No, I-- Jan W. Baran: The record in this case, Justice Breyer, does not have an instance of that type of circumstance. It does support the proposition that when candidates are involved in helping their parties raise money, which they are involved in, they do so without such designations, without such promises that the money will be spent for them, and the record is very consistent that the political parties maintain control over whether to spend that money, how to spend it, and on whose behalf. Speaker: --I see why we're... is this the point of what I consider our miscommunication. Jan W. Baran: Okay. Speaker: I have not specified something. You're turning your answers on the fact that you can't earmark the, the circuitous route, and so for my assumptions to be correct, I have to be assuming a fact that's debatable, and that is that the tally system works approximately similar to earmarking, but on my assumption that that's factually true, we get to my questions, but on the assumption it's not factually true, then your answers are... is that the point of disagreement? Jan W. Baran: I believe that is true. Speaker: Thank you. Jan W. Baran: I do think that is an assumption of a fact that I believe the record does not support. Speaker: Well, of course, unless there's earmarking, I suppose the opportunity of corruption is very little greater under what the regime would be without this prohibition than it is what the regime would be with it. I suppose any candidate would feel sympathetic to someone who was agreed to give $80,000 to the State party, which he knows will be used to support him even though not in coordination with him. Isn't there... don't you think your candidates generally feel sympathetic to people who give a lot of money to the State committee, even under the current regime? Jan W. Baran: Yes, that they are-- Speaker: Knowing that the State regime will spend a lot of money to help them in one way or another, coordinated or not? Jan W. Baran: --Well, the record reflects that many candidates, primarily incumbent office holders, are very active in raising money for their parties. The record also shows that political parties are the only source of financial support in our system that do not primarily support incumbents. In fact, this past election we have experienced the phenomenon that more money is being donated to political parties from excess funds of incumbents who face virtually no competition in their reelection efforts than the amount of money that is actually being spent by political parties to support other incumbents who are in danger of losing reelection. So we have a possibility here that the people that candidates should really be indebted to are incumbents who are relinquishing large sums of their own money to help their party elect challengers and open-seat candidates to join incumbents in the House or the Senate. And that is what this record shows. This record also shows that the money, the hard money that's being spent is being spent on party speech. Over 90 percent of the money that's subject to these spending limits is for direct mail and television and radio. Now, that's as of 1997. I believe that percentage has increased since we took all of those facts back in 1997. The record also shows that the political parties like to control how they are going to spend their money. They don't like to just give a pot of money over to the candidates. The record shows in the testimony of Donald Dane, Colorado Republican Chairman, that we don't want to do that. We don't know how our money is going to be spent. We have so much difficulty raising this money, why would we want to do that. We want to decide how it's going to be spent, for what purpose and whether or not this was a good use of our limited resources, and that is actually what the practical effect is of striking down this spending limit is, I think there is a misconception-- Speaker: What is the practical effect of striking it down? Is it significant or not? I'm trying to figure it out. Jan W. Baran: --I think it is significant in the following two respects, Justice O'Connor. Number one, it takes away from the Government and places back to the political parties the discretion as to how best to use these limited resources in the form of hard money. It doesn't do a party any good to have a right to spend $3 million under this limit in California if there isn't a competitive race there for the Senate and at the same time, there might be an extremely competitive race in the State of Colorado where the limit is 200 or $300,000, depending on the formula, so the party has whatever money has been voluntarily contributed to it under all of those other restrictions. It's hard money. They decide well, we want to spend perhaps $500,000 in Colorado, or we want to spend a greater amount of money in California if we did have a competitive race. Speaker: You can do it as long as it's not coordinated. What is the... why does the restriction on coordination give you a problem? Jan W. Baran: Well, the record that we developed after this Court's consideration in 1996 deals with the exercise of political parties of making independent expenditures in the '96 election, and what they experienced were occasions where, by spending their money without consultation with their own candidates, they made some mistakes, political mistakes. They contradicted their candidates. They may have mischaracterized their position, and the result is, that in order for them to exercise their full First Amendment rights by spending their money independently and ripping themselves away from their indispensable candidates, they actually run the risk of harming the candidates who are so important to their own electoral success. Now, with respect to any other independent expenditure, of course, the jurisprudence here says that that's a risk that any individual or political committee runs by-- Speaker: I'm not sure how important this is, but what you just said suggests this to me, that there sometimes is a difference of approach to an election between the candidate and the party and if you allow this statute to be held unconstitutional, you would allow the party to exercise its influence to cause the candidate to shift its views to accept those of the party. Isn't that one of the... one of the factors that's involved here? Jan W. Baran: --Well, there is a fundamental, a fundamental question of what is the right of a political party in terms of placing conditions on how they are going to spend their money or support candidates. There is no reason why a party could not say we will only financially support candidates who agree with our party platform to cut taxes. And if they decide not to support a candidate who doesn't adhere to that platform plank, then presumably that is their right to do so. It's not corrupt. Speaker: Mr. Baran, you were going to give two responses to Justice O'Connor. You said there were two reasons. I was waiting for the second one but just before we get too far away from it, what was the second? Jan W. Baran: The practical effect of striking down these limits in addition to giving parties their discretion as to how best to spend their limited resources is that I believe the other practical effect is that it will provide an incentive for political parties to raise more hard money, which is presumably the beneficial money that we have in our process. Right now, there is actually a perverse effect of these limits, rather than preventing corruption, arguably, they are promoting corruption because the limits tell a party chairman or fund-raiser it really doesn't matter how much hard money you raise. You are not going to be able to spend more than this amount to promote your candidates. So a party leader says, well, why should I devote my limited resources and time and energy on raising more hard money that I cannot spend, as opposed to going out and raising more of the soft money, which cannot be spent for perhaps the same purposes, and can't be as politically effective, but I'm going to raise more soft money and the statistics that are in the record show that soft money has increased at triple digit rates from '92 to '96, '96 to 2000, and yet hard money fund-raising has essentially plateaued. Speaker: Okay but that's, I mean, that may be a very good argument to Congress, maybe a dangerous argument because the soft money opponents may find something to run with there, but I'm not sure that it's an argument, and I realize you were asked to get into this, but I'm not sure that it's an argument that's going to help us decide this case. Jan W. Baran: No. Speaker: I take it so much of the... the other side's position here depends on the relationship between the coordinated expenditures and the individual contribution limits to the candidates themselves. Do you, do you contest the, I guess, intuitive assumption that if a candidate had the choice of retaining the present limits on contributions directly to that candidate, and on the other hand, having a system in which there were no contribution limits, he could accept any amount from anybody, do you, do you contest the intuitive judgment that he would probably accept the latter system and say, sure, let me accept any amount of money? Jan W. Baran: From anybody. Speaker: Yes. Jan W. Baran: In lieu of what? I'm sorry. Speaker: In lieu of the current system of limitations on contributions to make. Jan W. Baran: I don't know the answer to that because it requires me to try and read the minds of many, many politicians. I believe that there would be a division of opinion. On the one hand, there would be politicians who would say, yes, I would like to scrap this system and be able to take unlimited amounts of money from individuals or political committees and I'm prepared to hold myself accountable to the public and the voters for that decision. On the other hand, I think there would be politicians and incumbents who say, no, I really don't want that because I think it would present a political problem or it may open the doors to some undue influence and pressures from large-- Speaker: Won't the first group, the group that says, yes, I would like to replace the present system and be able to take as much as anyone wants to give me, wouldn't that first group prefer a system in which there was no limitation upon coordinated expenditures by the party because that first group could achieve very much the same result in that way, isn't that so? Jan W. Baran: --No. I believe that there is a very substantive and historical difference. One of the distinguishing features of the legislative record going back to Congress' consideration of campaign finance reform in the early 1970s is that while there is a great deal of concern expressed regarding individuals and political committees supporting candidates of political parties, the utterances from Congress regarding political parties are uniformly laudatory. I mean, they say, well, this is important institutions, they're unique. We've got to give them lots of room to operate. Speaker: Well, sure. But now we're, now we're... what I'm positing is a system in which the political party, which everybody esteems for different reasons, perhaps, but everybody supports, now, on your theory the political party can simply be given another useful task and the useful task, in effect, would be to eliminate the need of the candidate to be scrambling for the $100 contributions if it could accept, in effect, through the party, contributions in the amounts that Justice Breyer was talking about in his hypo a while ago. Jan W. Baran: But I believe Congress has perceived that to be a benefit, not only to them, but to the entire democratic process. Speaker: Well, if it perceives it as a benefit, why does it have the restriction on coordinated expenditures? Apparently, it does not perceive it as a total benefit? Jan W. Baran: Well, there is a very interesting reason for that, which goes back to when Congress devised the campaign finance system that this Court reviewed in the Buckley decision. And the genesis of this particular limit was introduced in the United States Senate back in 1973 or 1974 at a time they were considering a bill which provided for no private contributions in general elections for the Senate or the House and that there was going to be completely publicly-financed and when they got to this public financing proposition, somebody got up and said, well, what about the parties? I mean, we have got to let them operate and they said, well, that's great, we're going to let them operate, but of course, our principal concern in addition to corruption is we want to equalize resources and we want to make sure that there is not excessive spending so we're going to devise this formula, which is more generous than we are providing to anyone. In fact, it's generous exponentially because we're telling individuals and political committees they cannot contribute to these candidates at all, and that's the genesis of this limitation. We discussed that in 1996 before this Court that shows that historically this was a limit imposed to prevent excessive spending. This court noted it in the decision of FEC vs. Democratic Senatorial Campaign Committee and the plurality decision noted that congressional purpose. Speaker: Well, that is certainly a rationale that supports spending limits generally, but I don't know that it is, it is or was meant to be the exhaustive rationale for a distinction between coordinated and uncoordinated because if that were the only issue there wouldn't have been any distinction. Jan W. Baran: Well-- Speaker: A spending limit is a spending limit. And if you're distinguishing between coordinated and uncoordinated, presumably you have a different policy in mind, and I presume, and I haven't heard anything to the contrary, that the policy is exactly the intuitive judgment that was behind the original hypo of Justice Breyer's. Jan W. Baran: --I believe that if that were the policy surely one Senator or one Congressman, at some point, in the consideration of campaign finance over a period of literally decades would have gotten up and said you know what-- Speaker: Did they do it for no reason at all? Jan W. Baran: --Surely one Senator or one Congressman at some point in the consideration of campaign finance over a period of literally decades would have gotten up and said, you know what-- Speaker: Did they do it for no reason at all? Jan W. Baran: --No. They did it to limit spending. Speaker: They don't need to distinguish between coordinated and uncoordinated if that's what they're concerned with? Jan W. Baran: No. Because, and this may explain a little bit of that dichotomy in the statute today that we have that contribution limit of $5,000 to candidates from a political party and yet we have this special provision in Section 441a(d). Well, back when they introduced this original statute, there weren't going to be any contributions by anybody to candidates for the Senate and the House in general elections. Speaker: Now there are. Are you saying that the rationale for what happened here was just inadvertence. Nobody thought about it? Nobody went back and said, hey, we don't need this now? Jan W. Baran: I believe that the rationale for this provision today is the original rationale, the entire statute, this provision was transferred verbatim after this Court's decision in Buckley from the criminal code of Title 18 into the existing statutory provision of Title 2. And other than the report language that was noted in the Government's brief regarding the effect of this provision after Buckley, there is no other congressional utterance that I'm aware of regarding the purpose of the statute. This really is a relic from Congress' effort to basically control spending in the entire political process. There is one final point I would like to bring to the Court's attention. There has been discussion about Congress' treatment of family members and there is an intimation that perhaps there was no record or legislative record regarding Congress' actions in that regard. We noted in our reply brief in 1996 that there is legislative record of concern back in 1974 about wealthy family individuals contributing to candidates of their family. There was even the example noted of concern that Nelson Rockefeller's mother had contributed one and a half million dollars to his campaign in 1968, and there are some floor statements by legislators as well. So it is not accurate to say that Congress did not have any expression of concern about family members, as opposed to political parties, and that record was presented to this Court in Buckley when it considered all of those statutes at that time. I would also like to address the question about what is the definition of coordination. That is in the statute, Section 441A. It does prohibit or it does turn an expenditure into a contribution if there has been a request or a suggestion, if there has been consultation with the candidate and I don't believe it's at all clear whether the Government would not restrict a political party's spending if they simply went to a candidate as suggested by Justice Scalia and said, well, will this help you or will this hurt you? There is some history of FEC enforcement that suggests that at least as far as the commission is concerned that would constitute coordination and therefore would be either subject to our limit or somehow barred under the contribution limits. If there are no further questions, I have covered everything I intended to cover. Speaker: Thank you, Mr. Baran. General Underwood, you have four minutes remaining. Barbara D. Underwood: Thank you. I just want to make a few points. The rationale for the party expenditure provision has always been a conduit theory. The structure of the statute has changed, and so just exactly how the party could act as a conduit to evade whatever limits existed has changed, but right from the beginning, the concern was that the party could act to enable another donor to evade the limits by-- Speaker: Well, you just said there is nothing in the legislative history, not one Senator, not one Congressman ever said anything like that. Barbara D. Underwood: --Well, at pages 28 and 29 of our brief, we quote some legislative history. I think my colleague discounts it because it was at a time when the structure of the statute was somewhat different so the evasion and the conduit that was possible was somewhat different but it was nevertheless then, and is now, aimed at preventing parties from enabling individuals to avoid their limits. I mean, at page 28, Senator Matthias says that the point of this is to prevent an indirect contribution by a candidate... by a contributor to a candidate going through the party. That was why the provision was in the statute. The coordinated expenditures are like contributions and it was the premise of Buckley, over some objection to be sure, that they have a greater potential for corruption than independent expenditures. That's true for parties and for political action committees, as well as for individuals, and it's true for fat cat contributors, as well as for small contributors, so the right that's being claimed here, the constitutional right here to unlimited coordinated expenditures is, in effect, a claim of right to unlimited contributions. The Colorado Republican Party isn't making that argument, but it seems to follow from their argument because parties... and the reason why, although parties are different from other kinds of actors in the system, they nevertheless need to be subjected to some limits, is precisely because, as intermediaries, they can serve to defeat the other limits of the statute. A party has no more... that was a judgment Congress was entitled to make, not compelled to make, but entitled to make. It solves a part of the problem but not the whole problem. Political parties, though, have no more a constitutional right to exemption from limits on contributions than do political action committees and, in fact, Congress gave them much higher limits. William H. Rehnquist: Thank you, General Underwood. The case is submitted.

William H. Rehnquist: We'll hear argument now in Number 95-386, Jason Richards v. Jefferson County. Mr. Baxley. William J. Baxley: Mr. Chief Justice, may it please the Court: This is a res judicata due process question that we're here on today. To lead in, I'd like to give a short quote out of a case of Chase National Bank v. Norwalk. Justice Brandeis said, unless duly summoned to appear in a legal proceeding, a person not a privy may rest assured that a judgment recovered therein will not affect his legal rights. That quote was also cited by Mr. Chief Justice in the Martin v. Wilks case and quoted along with some other quotes from Justice Brandeis in that case. The second little lead in quote I'd like to give... because it was cited, the case was cited by the respondent. It's a Fifth Circuit case, Southwest Airlines v. Texas International, and they quoted Judge Widdeson as saying, quote, denial of the opportunity to bring a suit raises serious due process questions. Further in the opinion, they quote, again, Judge Widdeson, because res judicata denies a nonparty his day in court, the Due Process Clause prevents preclusion when the relationship between the party and the nonparty becomes too attenuated. In this instance, it's not only a attenuated relationship, there's a nonexistent relationship. There's absolutely-- Sandra Day O'Connor: Well, Mr. Baxley, there... your opponents cite a string of cases, many of them State cases, in which some kind of claim preclusion doctrine, or res judicata, if you will, has been applied despite a change in the identity of the plaintiff taxpayer in suits by citizens challenging tax laws in State court. Now, there is that body of authority, and how do you deal with that, and what's the extent of it? William J. Baxley: --All of those cases that they cited in that footnote, only two or three of them do I think really have application that they should have to be arguable. All of them are State cases. I believe all of them are State cases. I don't believe there's a single case from this Court or even a circuit court that they cited in that footnote. I think common sense is the best answer. These are cases that I think that the law, especially when you're dealing with a constitutional right to have your case litigated-- Sandra Day O'Connor: Well, you take the position that there is no doctrine of claim preclusion in these citizen taxpayer suits in State court? William J. Baxley: --I think the position that we would take is... was enunciated in your dissent, in Justice O'Connor's dissent in the Harper v. Virginia case which is-- Sandra Day O'Connor: But remember, that was a dissent. William J. Baxley: --But it did not conflict with the majority, either-- Sandra Day O'Connor: It didn't carry the day. William J. Baxley: --and you quoted United States v. L.A. Tucker Trucking Company and Webster v. Fall, and I think your quote there was something to the effect that questions which are merely lurk in the record have no basis of precedent in-- Sandra Day O'Connor: Well, what if the court in the Bedingfield case here had actually decided the issue that you're raising now, would you be here? William J. Baxley: --It would be a closer question. I think that-- Sandra Day O'Connor: And what is your answer? Would you then be precluded, a new taxpayer, from bringing the same challenge? William J. Baxley: --I think you could make a good argument that you would not, because of nonprivity under the law as set out by this Court, but I think that... certainly I think that candidly the respondent would have a stronger case, because here this argument, a major constitutional right, has never, ever been decided by any court at any time. It's never been argued. It was mentioned in one amicus brief at the Alabama supreme court level, just mentioned in passing. You've got a trial court that wrote a five or six page opinion that never touched on this major right. Ruth Bader Ginsburg: Mr. Baxley, just to be clear on what's at issue, if, in fact, the matter had been decided in the prior suit, raised, litigated, and decided, then really it wouldn't be too significant whether you put a preclusion, it wouldn't be a plain preclusion, an issue preclusion label on it, because you'd have precedent from the highest court in your State. You'd be bound by stare decisis, so it wouldn't... if they actually decided the question, if the Alabama supreme court actually decided the question in the Bedingfield case, then wouldn't you realistically be out of court in your suit? William J. Baxley: I think common sensewise, yes. I think you could argue that the claim... I don't think technically under the law that either res judicata or collateral estoppel would apply. Ruth Bader Ginsburg: But how about stare decisis? William J. Baxley: Stare decisis I think would be... would be enough to where it would make your burden almost unable... you couldn't overcome it, but I... we don't have that-- Ruth Bader Ginsburg: So your case really depends on this issue not having been fully litigated and decided. William J. Baxley: --Not having been litigated in any way, and I think that's the law from this Court, repeatedly. William H. Rehnquist: Well, what if the State of Alabama decides to authorize taxpayer suits not in the sense of people who are being subject to a tax, but in the sense of challenging expenditure of public money? In other words, any person in the State who pays taxes may challenge the... and I think many States have this. Do you think a State has to allow more than one of those suits? William J. Baxley: No, sir, I don't think they have to-- William H. Rehnquist: Where there really isn't any personal property interest at stake. William J. Baxley: --I think my answer there would be that you pretty well hit it on the head in Martin v. Wilks in your opinion, where you said it's really, the burden is on the parties, on the parties that are litigating it to determine what the issues are going to be. When this issue was litigated in Bedingfield, if the county had really wanted to come in and have the due process... I mean, and the due process rights provided and the equal protection matter settled once and for all, they could have brought it up. They know-- William H. Rehnquist: That... I don't believe that's responsive to my question. Listen, please. My question was, if the State says, we're going to authorize taxpayer suits, any taxpayer can come in and claim that the public moneys are being misspent, and A comes in and brings a taxpayer suit saying that you... this is a violation, say, of the First Amendment, the religion clause, for the State to spend money this way, and then that's... the highest court in the State decides that case against that taxpayer. And then taxpayer B, who wasn't a party to that suit at all, comes in and says, now, I wasn't a party to that suit, I'm bringing a taxpayer's action to challenge that same expenditure of money under the same provision of the Constitution. Now, can a State say, we're just not going to do that, this is a special kind of suit? William J. Baxley: --I think for the same reason, the principle of stare decisis that Justice Ginsburg-- William H. Rehnquist: I'm not talking about stare decisis. I'm talking about, maybe it's a brand new supreme court of Alabama now, and maybe the supreme court of Alabama might be inclined to depart from its earlier ruling, but can the State simply say, we're not going to entertain this action? William J. Baxley: --I don't think they could and get by a due process test if they preclude... now, if... in your... and what... your example, if somebody came back and raised... you gave the First Amendment, raised the First Amendment, it had already been decided, yes, I think a statute that set that out would preclude others from doing it. But if then they, somebody came in and said, now, wait a minute, this has not been decided on another constitutional ground, then I don't think that a... I think a State statute-- William H. Rehnquist: What if the law of Alabama is that anything that was... might have... was raised in the first taxpayer's action might have been raised is just, it's all over, there isn't going to be another suit, does that violate some provision of the Federal Constitution? William J. Baxley: --Yes. I think it violates due process. William H. Rehnquist: Why? William J. Baxley: Because this Court has held basically that and the Alabama supreme court has held that over and over, repeatedly. William H. Rehnquist: Well, held... are you talking... you say, held that. You suggest that the Alabama supreme court and this Court has held that in the hypothetical example I've given you it violates due process? William J. Baxley: If you deny someone the right to fully and totally litigate a constitutional issue, however you cut him off, whether by case law or by a statute, then it would not meet the test of this Court, that this Court says the due process rights transcend and, so to speak, would overcome... whether it be case law at the State level or a State statute-- Ruth Bader Ginsburg: Mr. Baxley, but in many of these instances, these so called taxpayer suits, you wouldn't even have any right at all to be in court were it not for the grace of the State that allows you to be kind of a private Attorney General. I would think... your taxpayer is someone who is paying tax and doesn't want to. These taxpayer suits, where the taxpayer emerges to represent the public, are quite a different animal, are they not? William J. Baxley: --Well, I think-- Ruth Bader Ginsburg: Do you have any due process right to bring a case that, if you were in the Federal court, they'd probably say you don't even have standing? William J. Baxley: --I think that you always have standing if you've got a major constitutional right that you say is being infringed upon. Antonin Scalia: That's not... certainly not true. I mean, let's assume that you have a... I mean, we have cases where the Constitution contains a statement of accounts clause, and we have held that a private citizen cannot sue, has no standing to sue to compel the expenditures of the CIA to be disclosed under that provision. We say, maybe it violates the Constitution, maybe it doesn't, but no individual has standing because it's a generalized interest. Now, we have that doctrine at the Federal level because of separation of powers concerns, because we have a distinctive Federal doctrine of separation of powers. The States don't have to follow our separation of powers doctrine, and if they choose to allow a suit in that situation, why is it a denial of due process for them to say, we're going to allow the suit, but only one, whereas we don't allow the suit at all? How can they be in worse shape constitutionally than we are? William J. Baxley: I think the best answer there is a case of this Court of Waters v. St. Louis, and it's so parallel to the situation we have here. The legislature of Missouri passed a law that said cities of over 700,000 people can impose an occupational tax on businesses and individuals, but they said that on businesses and on proprietors that ran their own businesses they could do it on the net and deduct their taxes. Before the tax actually went into effect, a taxpayer in Missouri filed suit on constitutional grounds. It got to this Court, and I believe it was Justice Jackson who wrote the majority opinion-- Antonin Scalia: But you very carefully and quite appropriately pick a case in which there would have been standing in Federal courts. All that has been suggested by the Chief Justice and by Justice Ginsburg, and I'm suggesting the same thing, is that you're casting your net too widely, that there are certain... you have... there are certainly some actions in which the State allows a citizen to proceed with a suit where we don't. The construction of a bridge. If someone says that the construction of a bridge is contrary to law... the person is not harmed at all. He just says, I don't like Federal money being spent for something it shouldn't be spent for. Could he bring suit in Federal court? No. He can bring suit in many States simply on the ground that this money shouldn't be expended by the county, or whoever it is. Now, your position is that although it's perfectly okay to deny the suit to anybody, the State cannot say, well, we'll allow the suit, but only once, that the latter violates due process of law, but the former does not. That is not a very appealing proposition. William J. Baxley: --I think that the State does not have the right to, by statute or any other way, cut off someone's right to litigate a constitutional issue-- Ruth Bader Ginsburg: But if you have no right to begin with under the Federal Constitution... you have a taxpayer, an actual taxpayer who doesn't want to pay tax out of his pocket. Isn't that quite a different case from what is labeled, taxpayer suit, and what that note in the brief is of... the other side is filled with what we call taxpayer suits, where someone emerges as champion of the public in general, but is no more affected than the public in general. William J. Baxley: --Yes, Your Honor. Ruth Bader Ginsburg: But we are talking about real taxpayers, and that's a little different, isn't it? William J. Baxley: We're talking about real taxpayers, and in the Hansberry v. Lee, this Court said that the State is free to call these actions whatever they want to. They can call them virtual representation, they can call them class actions, if they call them class actions they can set certain rules, but the State cannot... whatever they call them, they cannot deny someone's due process rights and-- Sandra Day O'Connor: Wait, do you say that a State can't even authorize a class action and have the result of that class action binding on members of the class? William J. Baxley: --I think they absolutely can, but I also think you go back to the decision of this Court 3 weeks ago, roughly, in the Matsushita case, where... and your dissent, you say... I'm sorry, Justice Ginsburg dissent says that a State... you can have these class actions. I don't think this part of it conflicted with the majority. You still, even in a consent settlement you've got to make sure that due process rights of the, and adequate representation and things of that nature, that they still have got to be fulfilled. You can't cut that off in any way. William H. Rehnquist: What was the name of your Missouri case, Mr. Baxley? William J. Baxley: Waters v. St. Louis, and there's-- William H. Rehnquist: Where is it... I don't see it in the index to your brief. William J. Baxley: --Your Honor, it's in our... I know that it's in our... oh, the amicus... the amicus found this case for us, the amicus of the counties found that case and had that in their green brief, and then we, I think, cited it in our reply brief. William H. Rehnquist: Thank you. William J. Baxley: But that was Water v. St. Louis, and there is a concurring opinion, two sentences, one paragraph, by Justice Douglas, joined in by Justice Black, where Justice Douglas says that I'll go with the rest of the Court on the reading that the Missouri supreme court has not considered this scheme right now so it's not right, but when it comes up again and is considered, this case... but I bow to their reading of the record, saving for a future day the serious and substantial question on the Equal Protection Clause raised by the regulations which grant employers deductions for taxes paid the Federal Government, yet do not allow employees a deduction for the same tax. Now, when this first case came-- William H. Rehnquist: Well, that sounds like a case in which the employees and the employers all had some property interest that was being taken away from them by the tax. I mean, they were being able... they were being required to pay the tax. William J. Baxley: --That's what we have here, Your Honor. William H. Rehnquist: I know it is, but the questions we have been propounding to you are... which you simply haven't responded to, at least so far as I can tell, are the other situations, where, as Justice Ginsburg puts it, you have a taxpayer's action where the taxpayer is really a private Attorney General saying, we don't like... we think this money is being spent in violation of the Constitution, even though they suffer no particularized injury, and the question is whether that kind of a case isn't perhaps different. William J. Baxley: I think it is different. I think it's very different. Antonin Scalia: Well then, in order to agree with you, we don't have to go as far as you initially urged us, to say that in every case where a State allows suit it has to allow that a later plaintiff can bring the same suit. Let me put the question more specifically. Do you believe that your client would have had standing under Federal law to challenge what was done here if it had been done by the Federal Government? William J. Baxley: I think at the time of the first action our client didn't have any standing, period, because the scheme had not gone into effect yet. Antonin Scalia: No, but let's assume this scheme is in effect and it's a Federal scheme rather than a State or county scheme. It's a Federal scheme. Would there have been standing under our Federal law of standing to sue? William J. Baxley: Yes. Yes, Your Honor. Antonin Scalia: Well, it seems to me that that's the only point you need sustain, that in the type of a lawsuit where there would be standing under the Federal law of standing, in that type of lawsuit, at least, you cannot preclude a plaintiff who was not actually bound by the first judgment. William J. Baxley: I agree. Antonin Scalia: Can I agree with that more limited proposition and perhaps find for you on that basis? William J. Baxley: Your Honor, you can find for us on any basis. [Laughter] Yes, sir, I would concur totally. I think that there are really four cases. There's another case that I think is very much in point about bringing this up again, when it involves a basic constitutional right, and this was a case that, again, they found for us. Respondents cited it. It's Quong Wing v. Kirkpatrick, I believe, the Montana case, and they cited it I suppose because it looked like it was a horrible case for us on the equal protection issue, but when I read that case, lo and behold, Justice Holmes... it was a case where the State of Montana had imposed a what looked like blatantly discriminatory tax aimed at the Chinese laundries. And Justice Holmes mentioned in the opinion that in oral argument he tried to ask the counsel that was arguing about the equal protection issue and counsel wouldn't respond, denied it, might have been asleep like I was when Justice Scalia was asking me. But Justice Holmes said in his opinion, he said that we brought this up, this is going to come up again, and when it does come up again, and laws are frequently attacked by... that the lawyers don't give the Court anything to sustain them and we don't want to sustain them, but when this issue comes up again, when it's properly attacked, because it's a constitutional issue, that if it comes up again we're going to rule with them. So I would think that Justice Holmes would be wondering... if he thought that that opinion would be cited in later days by people in the position of respondents, saying that this opinion does not allow the same party to attack it on the constitutional issue... he said they could. How horrified he would be if they said that that opinion by Justice Holmes prevented every future American of Chinese ancestry to not attack a ruling on that basis because the issue could have been raised and wasn't. John Paul Stevens: But here... isn't it true that in this case, although it wasn't litigated, it was raised in the complaint, wasn't it, in the earlier case? William J. Baxley: It was raised... it was alluded to in the complaint-- John Paul Stevens: Well, they quote... the allegation is that the statute violates the equal Protection Clause. It's not just alluded to, it was alleged in the-- William J. Baxley: --It was alleged-- John Paul Stevens: --But not passed on by the-- William J. Baxley: --It was not passed on by any court, and I would cite there-- John Paul Stevens: --But it is clear that it could have been raised in that case-- William J. Baxley: --Yes. John Paul Stevens: --because it was before the court. William J. Baxley: In fact, I think-- John Paul Stevens: What if they had... what if they had actually litigated it? Would you then take the same position? Say they'd offered evidence on the... and the trial judge had said, no, I don't think there's any merit to it, and then the plaintiffs had said, well, we don't think this is our strongest point, as a matter of tactics we won't appeal the trial court's ruling, we'll just accept the trial court's ruling-- William J. Baxley: --I don't think that our position would... we might take that position, but I don't think our... we would succeed. David H. Souter: --Well, wouldn't you still claim that there was no privity? William J. Baxley: Yes. John Paul Stevens: So on that-- --But the key to your case is not privity, then. William J. Baxley: Not privity. John Paul Stevens: No. William J. Baxley: We've got... if you look at what... issue preclusion, or collateral estoppel doesn't apply here. We say res judicata doesn't apply. In fact, I think this thing gets back to Justice O'Connor's thing... quote in that Harper case about it lurking in the record. It lurked in the record here, but it was never addressed. John Paul Stevens: Well, it lurked in the complaint... it didn't lurk, it was there in plain English. Mr. Baxley, is... you said that privity is not the key to your case. I thought it was one of the keys to it. I thought that was one of the prongs of your argument, and if you won on that you would, on your view, be entitled to win the case. William J. Baxley: Yes, Your Honor. Ruth Bader Ginsburg: The absence of privity. William J. Baxley: Yes, Your Honor. Ruth Bader Ginsburg: Yes. William J. Baxley: The absence of privity is certainly one of our strong arguments, and in every... almost every case that's cited in their briefs that in any way is contrary to us is... where you did have-- John Paul Stevens: But I... but the... Justice O'Connor raised it earlier. Aren't there a lot of statutes out there and a lot of procedures in State courts where they allow one challenge only to some kind of a public expenditure of funds, or a new taxing statute? They just simply don't allow a second. William J. Baxley: --I'm sure there are, but this is not-- John Paul Stevens: But they're all unconstitutional? William J. Baxley: --what we're talking about here. No, sir. No, sir, not at all. William H. Rehnquist: Typically it would be a statute allowing a challenge to the issue of municipal bonds, or something-- --Sure. --where the bonds are going to be sold, and they need a declaratory judgment in advance. William J. Baxley: A validation suit. William H. Rehnquist: Yes. William J. Baxley: Bond validation type suits. Your Honor, I've thought about that, and I think it would be appropriate here. I think certainly you could have one challenge, but however, I think you've got to look at what Hansberry v. Lee says, and the danger of collusion, that you don't want to okay in advance one challenge where there's possible collusion, a friendly type suit to validate-- David H. Souter: --That's not alleged here, is it? You don't have to get into that, do you? William J. Baxley: No. David H. Souter: You're not-- --All you have to worry about is the suit by the taxpayer who is actually paying the tax-- William J. Baxley: That's right. David H. Souter: --and that's what you've got, and you're claiming that in those cases-- William J. Baxley: That's right. David H. Souter: --you've got to have some privity for a... issue or claim preclusion. William J. Baxley: Yes, sir. Ruth Bader Ginsburg: And we just finished discussing that whole taxpayer suit category, and now we're into taxpayer who says, I got this tax bill and I've paid it and I want a refund, or the situation that you're in. There's an occupational tax, and your client says, it's not fair to make me pay that tax, so... but why isn't it fair for the State to say, it's good enough to have in this category, too, one taxpayer with a good lawyer fight out the case so we're going to apply in this taxpayer as taxpayer area the same thing we apply in the municipal bondholder's suit, and the people who want to challenge the annexation of a county, or Mrs. Frothingham who wants to challenge how public money is spent. We're going to apply the same doctrine to all of them. You get a good lawyer in suit number 1 and fight it out, and that's it. William J. Baxley: Because the... I don't think you can cut off someone's right to litigate a constitutional issue that's affecting them, and... but we don't have that situation here. This is not an action that was allowed by statute. It just came on a declaratory judgment. And also, one important thing, and it goes back to the question Justice Stevens asked, the complaint in Bedingfield, the first action here, never at any time was there any attack made on the exemption scheme. It had not even gone into effect yet. Probably most people didn't even understand it at the time, because the tax hadn't started taking effect yet, and so no one ever, even though it was in the complaint with the equal protection part, nobody has ever attacked the exemption scheme until the instant case right here, and we submit there are some possibilities that perhaps it would have been premature at the time Bedingfield came on, since the tax was not being collected. It indicates that in Justice Jackson's opinion in the St. Louis case. It might have been premature to have attacked the exemption scheme as early as they did. Justice Jackson mentions-- John Paul Stevens: I don't understand that at all. If it would be... they didn't rule... dismiss the case as a whole because it was premature, did they? Didn't they rule on the merits of what the... the issues that were raised? I don't know why the exemption issue would be any more premature than any other issue. William J. Baxley: --Nobody had been collecting it from them yet. John Paul Stevens: Yes, but they... that's true of the whole case, wasn't it? William J. Baxley: Yes. John Paul Stevens: And the court nevertheless went ahead and adjudicated the merits of the issues that it thought important. William J. Baxley: Yes, sir. John Paul Stevens: I don't understand your prematurity argument. William J. Baxley: That was just mentioned in the St. Louis case, and the exemption scheme was definitely never even attacked. If I could be permitted to reserve the remainder of my time. William H. Rehnquist: Very well, Mr. Baxley. Mr. Slaughter, we'll hear from you. William M. Slaughter: Mr. Chief Justice, and may it please the Court: I do not think it would be an exaggeration to say that if this Court were to adopt the petitioners' truncated view of the Due Process Clause with respect to representational suits, that they would overturn several hundred years of equitable development of class actions as culminating in Rule 23 of the Federal Rules of Civil Procedure. David H. Souter: Well, he claims that he's not attacking class actions. William M. Slaughter: Justice Souter, I believe that by trying to rest this case on the authority, among others, of Martin v. Wilks, totally ignoring footnote number 2, in which the Chief Justice reserved from the implications of that case the whole panoply of representational suits, first of all as typified by Hansberry v. Lee, and also the second cite in the footnote was Rule 23 of the Federal Rules of Civil Procedure-- David H. Souter: But I think his point is that there is no legitimate sense in which this can be called a representational suit. William M. Slaughter: --Well, I think he-- David H. Souter: He is claiming that his clients want to sue simply as taxpayers. They were not in privity with any other taxpayers who were sued and, in fact, they want to sue on an issue which was not litigated, and he is saying that in no sense can you call a prior action a representational suit as to my clients. I think that's as far as his argument goes. William M. Slaughter: --That may be his argument, but it is both historically and factually incorrect. The laws of Alabama have historically allowed, like the laws of other States, declaratory actions in which private citizens act as Attorney Generals to challenge public law-- Ruth Bader Ginsburg: But that is not... we've just been all around that. Let's concentrate on the case of a taxpayer, a true taxpayer. This is not somebody who's coming forward as a private Attorney General. This is someone that the State of Alabama is saying, you owe an occupational tax. All right, that's standing in the Federal court, and it's certainly standing in the Federal court, so let's forget about the taxpayer suits of the kind where you wouldn't have standing in Federal court, where you're just one of everybody in the public, and nobody is hitting you in your own pocket. Let's concentrate on those. Now, I do not know of legions of precedent that say, you can have a virtual class action without notice to anybody in the class. That's what we're dealing with, and that's what I'd like you to address. William M. Slaughter: --Well, class actions under (b)(1) and (b)(2), which he is trying to certify in the petitioners' case, is exactly that kind of case. (b)(1) is the class action which in the advisory opinion was deemed suitable to test taxpayers' questions on the bond issue-- Ruth Bader Ginsburg: That's usually an injunction case. William M. Slaughter: --No. No... I beg your pardon, Your Honor, (b)(1), not (b)(2). Ruth Bader Ginsburg: Give me an example of a money relief case, a case involving money, where people can be cut out without any notice. William M. Slaughter: (b)(1) is an appropriate vehicle-- Sandra Day O'Connor: (b)(1) of what? What are you talking about? William M. Slaughter: --Rule 23 of the Federal Rules of Civil Procedure, as well as Rule 23 of the Alabama Rules of Civil Procedure, which are exactly identical. Your Honor, if I may, this suit, the Bedingfield case represents a stepping stone along the evolution of English bills of peace, Justice Story's equity class actions in the 19th Century-- Sandra Day O'Connor: Well, Bedingfield was not a class action, was it? William M. Slaughter: --Yes, it was. Sandra Day O'Connor: I thought it was brought by-- William M. Slaughter: It was-- Sandra Day O'Connor: --It was two actions brought by individuals in the City of Birmingham. William M. Slaughter: --That is the important distinction here, Your Honor, if I may make that. There is essentially no difference whatsoever between the Bedingfield case and if this had been a class action brought and certified under Alabama Rule 23, paragraph (b)(1), and there are-- Sandra Day O'Connor: Bedingfield was not... let's clarify this, if we may. William M. Slaughter: --But it was a class action. Sandra Day O'Connor: Was it brought-- William M. Slaughter: In the name-- Sandra Day O'Connor: --expressly as a class action-- William M. Slaughter: --No. Sandra Day O'Connor: --and allowed as such? William M. Slaughter: No, but it did not need to be in order to be so treated for due process purposes, and that's the precise point. If we can go through and compare the cases-- Ruth Bader Ginsburg: Mr. Slaughter, how does your argument stand against an important precedent in this Court, a case called Mullane v. Hanover Bank, where the Court explained if someone's interest is being affected there has to be an effort to tell that person, not the best service that money could buy, but some notice? William M. Slaughter: --The distinction between due process and Mullane v. Central Hanover Bank is that the holders of the trust, common trust interest in that case were not represented by anybody. The issue in this case is whether you have-- Ruth Bader Ginsburg: Why weren't they represented by the people who were there? There were some of the beneficiaries there. William M. Slaughter: --And that element to some degree was used by the court as a justification for not requiring a stricter standard of notice. The idea that some of the people would in fact, local people in New York received the notice, but nonetheless they felt that due process required going the extra distance in that case. Stephen G. Breyer: Why, if... assuming that... I mean, you may... I think you may be right that (b)(2) is implicated here, but I thought there's a mistake the State court seemed to have made. They thought that this taxpayer action was like the private Attorney General taxpayer action, which is where these cases originated, but that isn't this. This is a case, isn't it, like a bunch of 10,000 people living in a city, and the city puts up some noxious fumes, and all 10,000 people breathe them, so they want to proceed against a nuisance, or there's a giant accident, and it happens to kill or hurt 10,000 people, and there you would have, let's say, a (b)(2) action for nuisance. But very well, I didn't find any contrary authority to the proposition that if you have a class action of that kind, you have to give notice to the other people. At least you should give notice. If Joe Smith is going to be the first person to run in and sue the city for the nuisance, or the first person to collect, Jones and 14,000 other people should at least have notice of what's going on and a chance to talk to the judge before they can be bound in res judicata. At least, I don't know why that shouldn't be so. William M. Slaughter: Justice Breyer, neither under (b)(1) or (b)(2) of Rule 23 is notice required. Stephen G. Breyer: I know it does not say that in the rule. That's the basis of my question. What I want to know is, I couldn't find any authority that explained to me why there is not notice in (b)(2), why there shouldn't be notice, how those class actions work, or what conceivable thing was going through the rulemaker's mind in not saying you should have notice, given the precedent in the Supreme Court that you can't take a person's action away from them without notice. That's my question. William M. Slaughter: The explanation of that is to be found in the history of Rule 23 and the version that existed from 1938 to 1966. That version was, in fact, merely a codification of the kind of historic equity class action that had been governed by this Court's Rule 48 and then Rule 38. It did not require any kind of certification for a class, nor did it require any kind of notice. The nature of the class was defined by the jural relationships between the members, by their common identity, if you will, in terms of their interests which were to be adjudicated. Stephen G. Breyer: Did they bind? I mean, I would have thought-- William M. Slaughter: And it was binding. Stephen G. Breyer: --Why, because normally you'd think, in a situation where you're proceeding against an injunction, for example, for a nuisance, you would have thought the first person to sue is going to win or lose, and then stare decisis will take care of the rest. But I was rather surprised that in such suits that first person's suit could bind other people who suffered from the nuisance on issues that were not litigated. Now, if, in fact, that did happen under (b)(2) or this historic practice in equity, I'd like to know why it happened, because it happening without notice would seem, (a) very unfair, and (b) contrary to the precedents of the Court that say you can't take a person's action away from him without notice. William M. Slaughter: The notice provisions of current Federal Rule 23 and all of the-- Stephen G. Breyer: Do not relate to (b)(2), you're right-- William M. Slaughter: --Neither to (b)-- Stephen G. Breyer: --and I'm asking why. William M. Slaughter: --Neither to (b)(1) nor (b)(2). Your Honor, my-- Ruth Bader Ginsburg: Mr. Slaughter, that's not quite right, is it? There isn't mandatory notice because there is such a variety of cases that come under (b)(1) and (b)(2), but look at (d)(3), which instructs the court to require for the protection of the members of the class or otherwise for the fair conduct of the action that notice be given in such manner as the court may direct. I assume from that provision that in a case comparable to the Mullane situation a district court, if we were operating under the Federal rules and in Alabama, since they have virtually the same rules, would say in this kind of action you have to give notice. You don't have to hire a process server, but you have to put a summons and complaint in the mail, or-- William M. Slaughter: --I think that provision of the rule is a very useful admonition and a very cautionary one, and a very valuable tool in the management of class actions, but I do not think it is mandatory for due process analysis where you have plaintiffs, representative parties who truly represent the class in a public and impersonal question of the kind implicated in this case, namely, just the constitutional validity of this tax. Antonin Scalia: --Well, why isn't that... why isn't that not a (b)(1) or (b)(2) kind of suit, but, rather, a (b)(3) suit? I mean, you're almost quoting (b)(3), the court finds the question of law or fact common to the members of the class predominate over any questions affecting only individual members. I mean, you're talking-- William M. Slaughter: I submit, Justice Scalia, and I believe the historical precedent for this kind of suit is on my side, that in this kind of case there is really only a pure public question in a purely legal sense. Not in terms of the economic consequences of the tax, or the differences in burden that may result from its application, but for purposes of the litigation of the pure legal question, there are no private rights involved, and therefore-- Sandra Day O'Connor: --Well, why isn't... why isn't this a property right here? William M. Slaughter: --I beg your pardon? Sandra Day O'Connor: Why isn't there a property right here being asserted by the plaintiffs in the present action, a right of action created by section 1983 authorizing individuals to sue for violation of their individual, equal protection rights? Now, why isn't it that kind of claim being made here? William M. Slaughter: Well, the fact-- Sandra Day O'Connor: Isn't it? William M. Slaughter: --Well, I agree, Your Honor, it is a kind of-- Sandra Day O'Connor: And in order for a prior suit to somehow take away that property right and that cause of action, wouldn't we think due process would require some kind of notice, and wouldn't we also think it would require some kind of adequate representation of these plaintiffs in the prior suit? William M. Slaughter: --Absolutely, Your Honor. Sandra Day O'Connor: Has there been any determination of adequate representation in Bedingfield of these plaintiffs and their suit? William M. Slaughter: You have put your finger on the essential due process issue in this whole case, and the one that we would submit, if it is due for remand, that would be the first question that would be appropriate for the Court to determine, namely the adequacy of the representation in Bedingfield. With regard to-- Antonin Scalia: So long as the Court satisfies itself that counsel is an adequate counsel, other people who don't want to be represented by this counsel must be held to whatever he achieves, is that the principle you're urging for? I mean-- William M. Slaughter: --Yes-- Antonin Scalia: --I thought if I had a cause of action, even if it involves a legal issue that's common to causes of action that other people have, I'm entitled to hire my own counsel and go litigate that myself. You say that we can dispense with that, and we can say, so long as we satisfy ourselves we have a good lawyer in front of us, and that this lawyer is going to do as good a job as any other, we can tell the other people go away, you must be represented by this person. The State can do that? William M. Slaughter: --To a limited extent in this kind of case, Your Honor, and-- Antonin Scalia: What kind of case is that? What is different-- William M. Slaughter: --And-- Antonin Scalia: --about this kind of case from the cases that-- William M. Slaughter: --The litigation-- Antonin Scalia: --Justice Breyer was asking about? William M. Slaughter: --The litigation of purely public questions that are necessary to the operation of State and local government with some degree of reliability and finality. I understand-- William H. Rehnquist: What is the purely public question, in your view? William M. Slaughter: --Many, Your Honor. You mentioned several earlier. For example, the validity of the process by which bonds are issued, the validity by which a tax is levied and collected. William H. Rehnquist: The validity of any State statute? William M. Slaughter: Many, but-- William H. Rehnquist: Well-- William M. Slaughter: --more so with regard to those that govern the nature of State and local government, and I can't give you an ironclad rule to sort them out, but-- William H. Rehnquist: --Well, why does a county occupation tax govern the nature of government? William M. Slaughter: --It does not govern the nature of government, Your Honor. It is merely a kind of issue that... the levy of a tax is totally useless to a local government if it can be challenged in endless litigation. Now, admittedly, stare decisis after a certain point may provide relief, but it has been the historic Anglo American practice to use res judicata in this context rather than stare decisis. Antonin Scalia: When you say historic-- --Can you think of anything more governmental than the criminal law? Is it really your position that when one individual challenges the constitutionality of a particular criminal law provision and loses, and maybe even chooses not to appeal, that everybody else is bound by the decision that that criminal law provision is constitutional? You say, well, you had a fair run at it. This person represented you. William M. Slaughter: No, that's... absolutely not. Antonin Scalia: Why is that any different? I don't understand that. William M. Slaughter: Because of the nature of the representational suit, whether it be formally, structurally certified as a class so that the representative proceeds under those rules, or whether it proceeds in the manner represented by Hansberry v. Lee, and which was prior to the adoption of State rules-- Ruth Bader Ginsburg: Mr. Slaughter, why do we bother having class actions at all? I mean, it's so much easier just to say, champion, come forward, get yourself a good lawyer, forget notice, it's much more efficient. If you are right, then there's no need for a class action. Why would anybody want to bother to go through all that business of getting it certified, if all you have to do is get somebody who is similarly situated, that person gets a decent lawyer, and that's the end of it? The case is decided once and for all for everybody. William M. Slaughter: --Those who verge on the... on legal anarchy I think would advocate that, and there is a strong-- Ruth Bader Ginsburg: But you are... are you saying that there are... sometimes you do need a class action with the court to certify the class and notice to the members. Can you distinguish for me the cases where you do need a class action, if that is your position, and those where you don't? William M. Slaughter: --I cannot distinguish all, but I can tell you that the very class of case that we're talking about today, cases which need to determine with some degree of finality and reliability State and local government issues do need the possibility of class adjudication, whether it be in the traditional form which I say the Bedingfield case was, or certified as a (b)(1) or (b)(2) class, as the petitioners seek to do in this case. In either case, it would constitute a final litigation of the matter, and would enable government to proceed without the constitutional cloud of uncertainty hanging over its head. In that respect, I think class actions are very useful, though they do conflict with this tradition in a free society that Justice Scalia was talking about. John Paul Stevens: But isn't it true that in the governmental context, normally the government feels comfortable proceeding with all the risks, reliance on the doctrine of stare decisis? Once they've got a... the supreme court of a State has ruled on and passed on most of the issues, they figure things are okay. And something... somebody can always come up with some new idea, but to say they have to have claim preclusion to give the government authority sufficient confidence to go ahead with their project seems to me carrying it a little farther than you really have to. William M. Slaughter: Well, as I mentioned in our brief, Justice Stevens, we are not going to insist on claim preclusion in this case. I think an adequate argument can be made for issue preclusion on the equal protection case. And admittedly... admittedly, there are a number of cases where, if a matter in question, for example, the proper procedure for a bond issue had not been followed and the prior test case only dealt with the legality of its purpose, then clearly the second case would not be blocked. But in this case, the county, bond attorneys, everyone relied upon the fact that the equal protection argument had been raised in the earlier case, and assuming that it was a class action that had the same preclusive effect as a (b)(1) class action, it was deemed to be res judicata with regard to that-- Ruth Bader Ginsburg: Mr. Slaughter-- --But don't you-- --I'm a little confused. You just said you were not insisting on claim preclusion. Instead, you said issue preclusion, but issue preclusion, or what some people call collateral estoppel, requires not merely the issue be raised, but that it be actually litigated, and decided, and essential to the decision, and it's those two things, actually litigated and decided and is central to the decision, that you don't have with respect to the equal protection claim. William M. Slaughter: --With all due respect, Your Honor, I think it is present in this case. First of all, the customary rule with regard to judgments is that if an issue was raised by the litigants, whether or not the evidence was sufficient, or whether or not the Court specifically addressed it, if it was consistent with the judgment and a contrary position would have negated the judgment, then the decision of that issue is merged in the judgment. David H. Souter: But that only goes to res judicata. That does not apply in a claim preclusion situation. I mean, Justice Ginsburg's very question is, I think, that if you are going to insist on the position that they are cut off on an issue which was not, in fact, litigated, even though it may have been raised, then you've got to rest your case on res judicata, not on issue preclusion. William M. Slaughter: Your Honor, what I am trying to say in that argument, and for that purpose we cited Grubb v. Public Service Commission of Ohio, was that as a rule of decision, not... having nothing to do with res judicata, just what first of all was decided, before we get to whether or not that decision precluded anything, the proper rule is that the equal protection question was decided in the case. Now, whether it should then have preclusive effect either on a res judicata or on an issue preclusion basis was a different question. David H. Souter: Right, and that's the reason for Justice Ginsburg's question and my question. If you are saying, as I thought you were saying, that you didn't insist on res judicata, that you were satisfied to rely on issue preclusion, then you lose, it seems to me, on any claim of issue preclusion on the res judicata point, because it was not, in fact, litigated. It was merely raised. William M. Slaughter: You're absolutely-- David H. Souter: It may have cut off the parties to the first case, but it is not going to cut off anyone else. William M. Slaughter: --On that point, you are correct, Your Honor. If we cannot persuade this Court that the appropriate rule of decision was that the equal protection question was, in fact, decided by Bedingfield, then we may indeed be vulnerable, unless the representational nature of the class action of the suit is sufficient to invoke the broader standard of claim preclusion. Stephen G. Breyer: Well, on that, could you go back to Justice Stevens' and Justice O'Connor's question for just a second, because it seemed to me that on... there are two equal protection claims, I think, that were raised. One was 500,000, and they might have litigated that one, I don't know, but the other one is the licensed professionals versus the other, and that was stated in the claim and then abandoned, all right, I guess, or they never got to it, so think of the second one, all right? Now, I take it no notice... is there... you were talking about tradition, the tradition of these class actions. Did you find any case... because I couldn't find one, but did you find a case which, going back as long as you want in tradition, would say, take, e.g., a nuisance run by the city that hurts 10,000 people, not a taxpayer action that is a private Attorney General action... that's out of this case. This is more like a nuisance, or an accident that hurts 10,000 people in their cars. Did you find any case where the first person to bring the nuisance suit would bind later people who did not have notice on an issue that wasn't litigated? That's the tradition that I think would be relevant here, and I'm not saying there is or there isn't. I'm saying I couldn't find such a thing, and I do see the possibility of such a thing falling under (b)(2), and maybe the appropriate action order thing that Justice Ginsburg takes care of it, but did you find any such case? William M. Slaughter: No, I did not, Your Honor, and that is precisely the reason why in the brief I said that perhaps the Alabama supreme court painted too broadly with the claim preclusion brush for purposes of due process, and that it might be more... a kinder and gentler due process application if, in fact, it were limited to issue preclusion. Stephen G. Breyer: And if that were so, then I guess it wasn't just that there was no finding that the representation was adequate. What concerns me more than that is the fact that there was not even any notice. William M. Slaughter: Well, Your Honor, with regard to this notice, I can answer nothing, other than usage that has been sanctioned for many years as a settled practice meets the requirements of due process, because in fact, if you examine the history of this kind of representational suit in equity, the precursor of Rule 23 between 1938 and 1966 and its present operation with regard to (b)(1) and (b)(2) classes, which are the suitable vehicle for this kind of public issue, notice is not required in order to establish a class that is binding on all of the members of that class, provided that there has been fair and adequate representation of the class interest. And that was the issue in Hansberry v. Lee, which I submit governs this case completely. First of all-- Ruth Bader Ginsburg: Mr. Slaughter, you mentioned that you case is a little shaky on the claim preclusion part, but you say it's solid on issue preclusion, and since you do have a decision of the highest court of your State, is there, in fact, any difference between stare decisis and issue preclusion with respect to these issues, the ones that were actually litigated and decided all the way up the line in Alabama? Is there any significant difference between those two labels? William M. Slaughter: --Just the necessity of going through the relitigation of this particular case again, Your Honor, and the fact that if someone doesn't like the opinion of the Alabama supreme court in that case, yet another plaintiff may bring the public law equivalent of a strike suit. Ruth Bader Ginsburg: But you can always bring a suit, and in both cases it seems to me the other side would move for summary judgment and one case would say, issue preclusion, and the other case would say, stare decisis. William M. Slaughter: But, Your Honor, I think you would acknowledge that there is always a little bit more of a chink to get through the opening provided by stare decisis than there is with res judicata, because the law evolves, and that is taken into account with stare decisis. Ruth Bader Ginsburg: There's a little more wriggle room. William M. Slaughter: More wriggle room, because you have more cases. It is not the authority of the single prior case, but all of the cases that may be of a similar nature that are to be taken into account for stare decisis. John Paul Stevens: May I ask you one question on the distinction of stare decisis and preclusion? Can you cite me any case in which a plaintiff was found to be barred by res judicata, estoppel, whatever it might be, not stare decisis, but a judgment in a case in which he was neither a party nor a privity to a party? William M. Slaughter: If he was represented adequately in the class, yes. John Paul Stevens: I'm saying no... not class action, because Bedingfield was not a class action. William M. Slaughter: Well, the most-- John Paul Stevens: Can you give me a case that-- William M. Slaughter: --Yes. I think the Southwest Airlines case versus the Texas International case is very much on point in that regard, Justice Stevens, because the privity, if you will, was created in that case by the identity of interest in the single, narrow legal issue that was presented, which was the litigation of the validity of a Dallas ordinance prohibiting the use of Love Field, and it had been decided earlier that that ordinance violated Texas law. All of the airlines who wanted to exclude Southwest from Love Field had a tremendous economic interest, but the court held that they were precluded from further litigating that question because their legal as opposed to their economic interest was indistinguishable from that of the City of Dallas and others who had litigated the same public question before, and that is a case, I think, that meets your criteria. Now, they had notice, though, in the sense of actual notice, because of all the publicity attending the case, but not necessarily legal notice within the procedural requirements of Rule 23. As I said earlier, I believe that this case is really governed by Hansberry v. Lee, which stood for several very fundamental points. One, I agree with the petitioners that it said the States are free, subject to Federal due process, to devise any kind of procedural vehicle for representational suits they desire. Secondly, those representational suits will bind the members of the class who are represented. Thirdly, it is a violation of due process if the representative of the class has a conflict of interest or does not adequately represent the members of the class, and that was a specific holding in Hansberry v. Lee, and finally, Hansberry v. Lee stands for the proposition that the question of adequate and fair representation in this kind of suit is a matter for retroactive examination by the courts when res judicata becomes a question. And in that regard, it is consistent with the principle of Rule 23 that the certification of a class does not establish its preclusive effect for the future. William H. Rehnquist: --Thank you, Mr. Slaughter. William M. Slaughter: Thank you. William H. Rehnquist: Mr. Baxley, you have 3 minutes remaining. William J. Baxley: No question, Bedingfield was not a class. Nobody ever considered it one, and contrast the lack of notice there with what was deemed not sufficient in Martin v. Wilks, where there, you had the Birmingham Firefighters Association that appeared, these later plaintiffs were members of the association, the court ordered that notice be published in both Birmingham newspapers for, I think, 30 days or so, they solicited opinions, asked everybody to come in, these organizations represented these people, you had much, much more notice type in the Martin v. Wilks than you had here, where you had none, zero. Secondly, it could have been a class. The county, if they had wanted it to barr everything forever, they could have come in... the Rules of Civil Procedure were in effect in Alabama for class actions 10 or 12 years before Bedingfield. The county didn't want to do that. They didn't want to make it a class. They hoped nobody would ever raise legal protection. They didn't want to litigate it then, they don't want to litigate it today, they don't wan to litigate it tomorrow, but that's the party that should have made it that way by your dicta, or your ruling of both parties are the ones that best know. And lastly, in the Southwest Airlines case that he mentioned just then, that was a very different situation that the Fifth Circuit ruled in that instance. The attorneys for the parties that were "nonparties" also filed amicus briefs. They attended the... they sat through the actual first proceeding, there was a lot of different fact situations different in the Southwest Airlines case than here, where you had absolutely no relationship-- John Paul Stevens: Of course, that was a Fifth Circuit case, wasn't it? William J. Baxley: --Yes. Yes, Your Honor. Thank you. William H. Rehnquist: Thank you, Mr. Baxley. The case is submitted.

Warren E. Burger: We will hear arguments next in 6289, Moore v. City of East Cleveland. Mr. Stege, you may proceed whenever you are ready. Edward R. Stege, Jr.: Mr. Chief Justice, and may it please the Court. This is an appeal from a criminal conviction of Mrs. Iñez Moore in East Cleveland, Ohio Municipal Court. Mrs. Moore is a grandmother. She was convicted under a city ordinance for living in her own home with her own two sons and her two grandsons. She appealed the conviction to the Ohio County Court of Appeals, which affirmed with one judge dissenting. Her conviction was further appealed to the Ohio Supreme Court which dismissed the appeal for want of a substantial constitutional question and the case was further appealed here. Warren E. Burger: Has she had to serve any of that five-day prison sentence? Edward R. Stege, Jr.: She has not. That five-day prison sentence was suspended on the condition that she, by July 1st , 1974, which was roughly 45 days after the conviction was handed down, that she put her grandson, John Jr., out of her home. She has failed to do that, pending the appeal to this Court. It is the appellant's position in this case that the East Cleveland ordinance, which prevents many family members from living together with their families in the city of East Cleveland, substantially interferes with fundamental rights of privacy and association in matters of family life. This ordinance is both over-broad and violated of the Equal Protection Clause of the Fourteenth Amendment. And the justifications offered by the city in support of this ordinance simply do not support the substantial interference of constitutional rights. Speaker: Are you suggesting that there is an over-breadth test applicable when you get outside of the area of the First Amendment? Edward R. Stege, Jr.: That is correct. Speaker: And what do you rely on for that? Edward R. Stege, Jr.: Well, I am suggesting that all the cases such as, for example, such as Row v. Wade, the abortion decisions, when a State passes a statute that interferes, I think the Danford case of last term, which interferes too seriously with a fundamental right such as, in that case, the right of privacy, the right to control the decision to terminate one’s pregnancy, that in a sense if the statute interferes too deeply with that fundamental right, it is truly over-broad. The term over-broad— Speaker: It is one thing to say that the statute violates the right in question, and therefore, it cannot stand. It is another thing to say, as I think of the term “over-breadth” to me, that it covers areas that it should not cover so that even though it does not violate any right in this case, we are not going to let it apply because it may infringe on rights in other cases. Which meaning do you adopt? Edward R. Stege, Jr.: The former, your Honor. Warren E. Burger: I take it the fundamental right you are talking about are perhaps, at least you raised in that is the right of a person to give a home to a near relative who is in need, that is, the grandchildren here. Where do you place that fundamental right? Do you seem to rule out the First Amendment rather quickly? Edward R. Stege, Jr.: It was not my intention, Mr. Chief Justice, to rule out the 1st Amendment. Warren E. Burger: Would that be broad enough? The right of association? If you can find that in the First Amendment, in this context, would that be broad enough to reach having a grandmother give a home to her grandchildren? Edward R. Stege, Jr.: I think so. I think the fundamental right here does not arise from any one single point in the Constitution. It arises from several different influences in the Constitution. First of all, it arises from the line of cases beginning with Skinner v. Oklahoma, which discuss and afford protection to the right to procreate, the right to create a family, the right to determine the extent of one’s own family. That is one clearly defined source of constitutional protection. The second line of cases is that line beginning with Myron v. Nebraska and continuing on through the Yoda case, the school education case, which gives parents and which gives persons within the family the rights to control the very upbringing of the members of the family, particularly the minor children, to make decisions about the rearing of those children, the secular, the moral education of those children. Thirdly, we have the associational interest involved, which had been recognized most specifically in the Meryl context in Griswold and Eisenstead, which I think also extend to the relationships among family members. Speaker: When you say family members, how broad does that term sweep? Edward R. Stege, Jr.: It sweeps, it encompasses ties of blood, marriage and adoption. Speaker: So it would include presumably cousins? Edward R. Stege, Jr.: It would include cousins, yes. Speaker: Suppose this ordinance merely said that anyone not related within the third degree shall not be regarded as a member of the family, do you think this would be valid? Just that. Edward R. Stege, Jr.: I think that begins to approach an area in which the legislative body might step in and determine a cut-off point. But the purpose of a cut-off point is completely different. It is a matter to resolve controversies. It is a matter to decide perhaps, the third cousin is too close. But perhaps the fourth and fifth— Speaker: So you are conceding there is a cut-off point? Edward R. Stege, Jr.: I am conceding that there could be a cut-off point but for a very different purpose than this ordinance is designed. The purpose would only be to determine at what very attenuated point in the family blood lines, do family members who are related to the thirty-second degree, let us say, stand in effect as strangers to one another. That would be the sole function of that kind of limitation. I would emphasize that I do not think that that kind of examples has a lot of practical significance for a city like East Cleveland. Those problems simply do not come up, and for example, in the Veltiere (ph) case, the ordinance there said family members related by blood, marriage or adoption. And State Courts— Speaker: --this ordinance. Edward R. Stege, Jr.: It is not this ordinance. Speaker: Your first two categories, you spoke of children. This ordinance does not cut against children, does it? If your client could have 13 children, she would not be - as to them or sidewise with the ordinance, would she? Edward R. Stege, Jr.: Well, as long as they were minor children, as long as they have no children of their own, as long as they are not married. Speaker: I am assuming all that? Edward R. Stege, Jr.: That is correct. The final threat, I mentioned three – Speaker: It was not your position at an answer to my brother Blackmun that, if a family decided to, well we are going to be a tribal organization in our particular family – the Jones family or the Smith family – we are going to be tribal rather than think of ourselves as organized in a nuclear family or anything close to it, that the State would be constitutionally required to recognize that. Edward R. Stege, Jr.: I am not sure, to be honest about it, I am not sure what you are getting at by the term “tribal family”. Speaker: Everybody related at all, like most of the population in the hills of Kentucky, for example. Edward R. Stege, Jr.: It seems to me that, well, using that example the answer is clearly no. My response to that is – Speaker: Why? If they asserted that this is the kind of family we want to belong to, and these are associations that we are constitutionally entitled to maintain, then the State of Ohio and the City of Cleveland has no constitutional right to invade our constitutional right of association as a tribal organization. Edward R. Stege, Jr.: My response is that if we examine the prior decisions of the court, they build on blood relationships. Speaker: well, is there anything in the constitution about that? Edward R. Stege, Jr.: There is nothing specifically in the Constitution. On the other hand, there is nothing specifically in the Constitution that creates a fundamental right of a parent to raise his child. It has been recognized. And there is nothing specifically in the Constitution that talks about procreation, yet it has been recognized. And I focus on certain areas of decisions, and identify three of them and the third, I think, relates to the protection that has been accorded to the family home. And from that, we assert a right to privacy and freedom of association in matters of family life. What good is it to have a right to control the upbringing of your child, if you cannot even live with that child? In the Prince case— Speaker: Nobody is being denied the right to live with their child here, unless you are talking about the grandmother’s right to live with her grandchildren. Edward R. Stege, Jr.: That is correct. Speaker: In a particular single house, in a single dwelling. Edward R. Stege, Jr.: In the family home. Speaker: Well, but the application of this statute, of this ordinance, has quite an effect upon the father living with his children in the home of the grandmother. It cuts across that, does it not? Edward R. Stege, Jr.: The application of the statute by its terms should preclude the father as well from living in the home. But as a matter of fact, John Moore Jr., who is now age ten and was seven at the time of the prosecution, was singled out as the “illegal occupant” in the home. He is the one who was being asked to leave. It was based on his presence in the home that – Speaker: If you and your opposition, would have get together as to where John Moore, Sr. lived, was he in the home or was he not in the home? As I read your brief, you have opposite polls on this. Edward R. Stege, Jr.: Mr. John Moore Sr. was in home at the time of trial, he is in the home now and he has been there ever since trial. The composition of the family home at the time of trial was Mrs. Moore, her two sons John Sr. and Dale Sr., and their two respective sons John Jr. and Dale Jr. Now that family composition has remained intact in exactly the same way, and those family members have continued to live in the home to this date. Speaker: It is an awfully small point, but is there any reason why John Jr. rather than Dale Jr. is the villain in the picture? Edward R. Stege, Jr.: It is beyond me. I cannot explain that. Speaker: Did the judge suggest why? Edward R. Stege, Jr.: I did not try the case below. The housing code singled out John Jr. as I say, the notice of violation -- Speaker: (Inaudible) schools or something? Is that suggested in the record? Edward R. Stege, Jr.: There was a coincidence time-wise, a peculiar coincidence time-wise with John Jr.’s entry in the first grade. I would emphasize this ordinance interferes in the most substantial and direct way with matters of family life. For example, it applies to all dwelling units in the entire city of East Cleveland, Ohio. It applies to single family units, it applies to two-family units and multiple dwelling units and there is no place in the entire city of East Cleveland that Mrs. Moore can live together with her family. Speaker: Even in an apartment? Edward R. Stege, Jr.: Even in an apartment. East Cleveland is a city of roughly 40,000 people and it is encompassed within about a 3 square mile area. And the criminal sanctions are severe as well. It is six months in jail for every day that a violation is allowed to continue. Speaker: Do you think the City of East Cleveland could pass an ordinance that said there shall be no more than three people per room permanently residing in any single family dwelling? Edward R. Stege, Jr.: In a sense it has done that, although not in those terms. Its past two ordinances, one which sets an occupancy limit. For example, based on- Speaker: Do you think it can— Edward R. Stege, Jr.: Yes, I do. The answer is yes. Speaker: That, but such an ordinance though, it would certainly have a fairly sharp impact on even a nuclear family. Wouldn’t they have wanted to have a lot of children? Edward R. Stege, Jr.: It could conceivably have an impact, although that is clearly not the purpose of the ordinance. Let me use the example that East Cleveland has already, well the ordinance that they have already passed. They determined in a mathematical way how many people ought to live -- how many square feet of space are required to support an individual, two individuals, etc. Speaker: And would that be valid? Edward R. Stege, Jr.: Yes, I believe that is valid. In this case for example, Mrs. Moore is entitled by virtue of the square footage in her home, and by virtue of the number of bedrooms, to have seven people there. She has always had less than seven in her home. It seems to me that that kind of ordinance has the very precision that this ordinance lacks. The problem that that ordinance is addressing is the problem of density. Speaker: But could you not attack that ordinance on the grounds that it could conceivably interfere with the decision as to a nuclear family – mother, father, children – as who want to have a lot of children and say, instead of passing that kind of ordinance, they ought to pass the kind of ordinance that you are attacking here that does not have any effect on the nuclear family but just cuts it off at the nuclear family. Edward R. Stege, Jr.: It seems to me that what this court focuses on - and this is particularly true in the First Amendment over-breadth cases, but I think it should be equally true here - is on the substantiality and the degree of impact that the ordinance has on the particular fundamental right involved. And that ordinance would have a very minimal impact, generally speaking, on families. If it is properly tailored, if indeed the legislature sits down as the legislative body did, for example, in Young v. American Mini Theaters and decides that this particular measure is key to the problem. The impact on families would be very incidental and would be slight. I can see that in a particular situation there might be a rather severe impact, but that overall, it would be minimal. And I think that the other key distinguishing factor between that kind of ordinance and this ordinance is its very precision. There is nothing precise about this ordinance. If this is an anti-overcrowding ordinance, where is the relationship if you cut out -- apparently under some circumstances, one sub-group of grandchildren may live in the home provided that the child of the grandparent is dependent upon the grandparent. Now that sub-set might have several children, whereas the next sub-set, the married adult child who is separated from his wife and returns to the home, that child is automatically out. There is no precision, there is no logical relationship between this particular ordinance and the control of density. I think the relationship, if it exists, is purely accidental. I think that that is the distinction between the two kinds of ordinances and I would emphasize that East Cleveland has on the books here a per-person occupancy limit ordinance. Speaker: Is there anything that prevents this if this fellow, a young man that is in trouble, if he goes out does he go on home relief or something? On welfare? Edward R. Stege, Jr.: He goes on presumably— Speaker: Well, I guess that is what the city wants. Edward R. Stege, Jr.: Presumably what happens is that if— Speaker: Well I assume that a seven-year old child cannot take care of himself. Edward R. Stege, Jr.: I think if John Moore, Jr. is forced to leave, I think his father will go with him and What happens? Then the relationship between the grandmother and her own son is disrupted and severed. Speaker: Well, there is nothing in the record that shows that he has an independent income. Edward R. Stege, Jr.: That is correct. Speaker: There is nothing about income at all. Edward R. Stege, Jr.: About income, either way. Speaker: That is what I meant. Speaker: Would that be relevant to this issue? Edward R. Stege, Jr.: I do not believe it would be. It is only relevant in so far as the statue is applied to -- , in so far as the dependency question is involved in the application of the statute. Speaker: You mean that if they do not have any money at all, then the child may be thrown out in the street? Is that it? Edward R. Stege, Jr.: That is absolutely correct in this instance. Let me emphasize that the application of this ordinance here would not only sever and disrupt the relationship between Mrs. Moore and her own son, but it would disrupt the relationship that is established between young John and young Dale which is, in essence, a sibling type relationship. And it would most importantly disrupt the relationship between young John and his grandmother, which is the only maternal influence that he has had during his entire life. So the interference here, to go back to Mr. Justice Rehnquist's question, is very substantial. Speaker: On that argument, would the case be any different if the grandfather had, say had his first wife die and remarried someone who was not actually the maternal grandmother but ye brought up the children? Would it be really a different case? Is it really dependent on the blood relationship or just the fact that these five individuals happen to live together? Edward R. Stege, Jr.: I think that there is something, perhaps sacred is going too far, something very, very significant in our society and in history about blood ties. The notion of kinship, the notion of sometimes it is a religious obligation to look out for your own kin. That is what is at work here. Speaker: You would say that would be a different case, in other words. Edward R. Stege, Jr.: Yes, I would. I concede that in a given situation, the reality of the situation might approximate the same kinds of blood relationship. But it really is different and I am not asking this Court to reach that -- Speaker: But would this be different if John Sr. was the adopted son of the grandmother and John Jr. was in turn the adopted son of John Sr.? I am puzzled by why you put so much on the blood relationship once the legal relationship is established. Edward R. Stege, Jr.: I am sorry. By emphasizing the blood ties, I did not mean to exclude ties of marriage and ties of adoption. Speaker: Adopted children, for almost every purpose that I can conceive of, are treated the same as natural issue, are they not? Edward R. Stege, Jr.: Exactly, and there is very clear state policy along those lines. If this ordinance were tailored the way the Veltiere ordinance was tailored, obviously we would not be here. But also I would have no constitutional objections to that ordinance. It says: all persons related by blood, adoption or marriage. And then it is up to the family members to decide within their family how they want to live. Speaker: Then to prevent the overcrowding you say that the municipality may put a density, a space requirement. But that you would accept because presumably it relates to health and safety. Edward R. Stege, Jr.: Yes, and in fact such a per-space requirement has been passed in this case. It is quoted in part on page 3 of the appellant’s brief. Speaker: Counsel, does this ordinance have any provision for individual variances? Is there any procedure by which you could have applied on behalf of the family for a tolerance or something? Edward R. Stege, Jr.: Yes, there is a procedure. Within ten days after a citation by the housing code official, there is a right to appeal for a variance. The standards, but I would emphasize— Speaker: Does the record show whether that was done in this case? Edward R. Stege, Jr.: The record does not show either way, but the fact is that no appeal was taken. I would emphasize that that particular ordinance is reproduced in the appendix to the appellee’s brief. As a matter of fact, in the appellee’s brief, there is a statement that had, and I am quoting, had Mrs. Moore sought a variance, it “probably” would have been granted “possibly with some stipulations”. And I think that those three qualifiers in the statement by the appellee are born out by any examination of the particular variance provision. The provision permits variances provided that the granting of the variance will not be inconsistent with the overall purposes of the ordinance in question. It seems to me that it is very difficult to expect East Cleveland on the one hand to grant a variance for Mrs. Moore if it is saying that the presence of John Moore, Jr. in the home is in fact inconsistent with the very purpose of the legislation. Speaker: I do not follow it. Any variance, by definition, assumes, there's a violation of the literal general application of the ordinance, doesn’t it? Edward R. Stege, Jr.: But there is also a provision in the variance section that provides that if it is to be granted, it must be granted on the condition that it is consistent with the overall purposes of the ordinance. And I think what East Cleveland does in granting these things is that they give you an extension. Six months, a year and then you have to leave. We will give you a variance but we will give it to you temporarily for six months or a year and then you have to go. I would emphasize— Speaker: Does the record support that or is that just sort of a -- ? Edward R. Stege, Jr.: That is not in the record. That is based on my own examination of the minutes of the zoning, the appellate review unit that makes these decisions. I would emphasize that it is correct, Mrs. Moore did not seek a variance in this case. But we contend that that is constitutionally irrelevant. In essence, the appellee’s argument is that there was some requirement of exhaustion of the administrative avenue here. It is our position that in a criminal case, it is not a precondition to asserting an offense based on the unconstitutionality of the ordinance, that one need a exhausted variant sort of administrative appellate procedure. Speaker: Is there a legislative history which tells us the purpose of this ordinance? Edward R. Stege, Jr.: There is a legislative history but it does not illuminate the purpose of this ordinance. This ordinance was passed in 1961. Its predecessor was passed in 1961 at the time a Housing Code was adopted for the City of East Cleveland. And what the appellee has done in his brief, is cite the prefatory language to the Housing Code which talks about upgrading property, control of density and there is no provision that zeroes in on, by way of explanation, this particular provision. Speaker: Because this is a suggestion that, in addition to the specific density provision or ordinance, this also has a purpose related to density? Edward R. Stege, Jr.: That is the position as I understand. Speaker: And yet I think you told us the seven-room house , or rather the house in any event, could within the density ordinance, accommodate seven people. Is that right? Edward R. Stege, Jr.: That is correct. Speaker: And yet there are only six here. Edward R. Stege, Jr.: Five. Speaker: Is there any law in Ohio that says if you are charged with violation of the zoning code, you cannot after that time be given a variance? Does that prevent you from getting – Edward R. Stege, Jr.: By the terms of the variance ordinance, you must file an appeal within ten days. Speaker: From the time— Edward R. Stege, Jr.: From the time of the citation. The citation occurred in January 1973, roughly a year or so prior to the prosecution. I would point out in further response to Mr. Justice Steven’s question that in Starr v. City of Baxley, 355 US 313, this Court considered the question of whether, reached the constitutional validity of a municipal ordinance that precluded persons from engaging in certain kinds of organizational activity without first seeking a permit. The fact was that the individual challenged the ordinance did not seek a permit in that instance and this Court addressed the very specific question whether or not the individual somehow lost his right to raise the question before this Court by failure to seek a permit. The Court rejected that decision. Speaker: Was it not the holding in Starr that the very statute that required the permit was bad? Edward R. Stege, Jr.: That is correct, but that was not material to the exhaustion argument. The exhaustion argument was that, look this whole case could have been avoided - if you simply would have sought a permit, it might have been granted. And that point was specifically addressed by the Court and rejected. In fact, the very language of standing, somehow the appellant had no standing and that case is adopted by the appellee in his brief. Speaker: If the municipality has no authority to put this kind of a limitation based on other than density, then the variance falls in the same category. Edward R. Stege, Jr.: Exactly. At this time, I would like to conclude by saying that this Court is presented with an ordinance which, on the one hand exhibits no rational methodology whatsoever, but on the other, cuts ever so deeply into the fabric of family life. We urge that Mrs. Moore’s conviction be reversed, that she be allowed to live together with her sons and grandsons in East Cleveland, unmolested by this ordinance. I would like to reserve my remaining few minutes. Warren E. Burger: Very well. Mr. Young. Leonard Young: Mr. Chief Justice, may it please the Court. This time, the appellee would like to point out that with respect to John Moore, Sr., the Housing Code file of the City of East Cleveland shows that at the time of the citation, John Moore, Sr. was living on Central Avenue in the city of Cleveland. He was not living in the premises in question. Further, we would like to point out again from the Appendix of appellee’s brief that the initial citation occurred in January 1973. From that point until April 1974, the Housing Department of the City of East Cleveland worked with the appellant in trying to resolve this question of occupancy. It was not until April 1974 that this matter was taken to Court. Warren E. Burger: When you say resolve, in what respect? Did you help them go somewhere else, get a variance, or do what? Leonard Young: No. Your Honor, the procedure with respect to Code citations are to notify the party involved, either ask them to call the Housing Department to set up a conferences with them to find out what can be done to correct the situation, including conferences. There is nothing in the record but I can only make this point. In a usual situation like this, the housing inspector, if there is a possibility of a variance, would make a verbal response to that person involved in that situation. But again, there is nothing in the record to reflect that and I could not find anything in the record of the Housing Code. Warren E. Burger: I am a little puzzled yet. What solution could they work out? Leonard Young: If I may go to that, Your Honor. When you look at this situation, you have to look at the entire Housing Code. One of the things that I focus on at this point is that under the Housing Code, there is the sub-tenant (ph) group. They are, for example, and I take exception with regards to hardships. With regards to a variance, a showing of hardship is made if it can be done in harmony with the ordinance, that is, to maintain the safety, the welfare of the community, variances are granted. In this situation, the record does not reflect it and to my knowledge there was no showing of any need or any hardship as to why the grandson should remain in the premises. Again, I go back. If these arguments made on behalf of the appellant were made by John Moore, Sr. involving personal rights, I think you would have a different situation. But here, you have the appellant, a grandmother making these arguments of personal rights in which there is no guardianship, no adoption on her part of John Moore, Jr. Therefore, these are the types of things that John Moore, Sr., as a natural parent, has a right to determine. William J. Brennan, Jr.: Mr. Young, why John Jr. and not Dale Jr.? Leonard Young: Thank you, Mr. Brennan. If we go back again to the citation, I mean the ordinance in question. The nominal head of the household, in this case would be the appellant - she is listed as the owner of the premises, can have one unmarried child with her. Also, in the situation says he had a son, Dale Sr. was there and Dale Jr. was there. Looking at the total situation, the premises could accommodate the three individuals that the Housing Department would not give a citation on that type situation. When you bring in John Jr. who is there at that point, you have exhausted the ordinance which allows the unmarried son to be there. You are bringing on another family. In addition to that— Speaker: Both sons were married. Leonard Young: At the time of -- right. I do not know that. Speaker: Is John Sr. unmarried? Leonard Young: I do not know that. Possibly, he is. But again, I go back to the time of the citation. As far as we can determine, John Sr. was not in the home. Now, in addition to this, John Jr. was in the process of, as counsel for appellant pointed out, starting to school. One of the things in the public school system in East Cleveland, there must be some parent or person who stands in the position of the parent to whom the school can look to, if there is a need, for example the child is injured, a need to give consent for treatment. Without the appellant having a guardianship, this meant that they cannot turn to them. Speaker: A grandmother cannot do that— Leonard Young: Unless she is a parent. Speaker: I am a grandparent. I would like to think I could. Leonard Young: Under the situation where— Speaker: So your answer is, they could not. Leonard Young: Not on the, in my understanding they could not, particularly since the natural father is alive and had not given his consent to the grandmother in that respect. Speaker: Of course, the city is not the School District, is it? Leonard Young: No, it is not. Speaker: Where do you want this young man to go? The only complaint is one boy, right? Is that the complaint? Leonard Young: At the time of the citation, second family is – Speaker: As of now, what is the complaint? Leonard Young: As of now, there is a second family. John Moore, Sr. and John Moore, Jr. live there. Speaker: One person? One person, too many? Leonard Young: Two. The father and the son. They are there now. Thurgood Marshall: They are both wrong? I thought it was only one. Leonard Young: Well, your question, Mr. Justice Marshall was as of now. Thurgood Marshall: I want to know how this family can conform to the Code. Minimum conflict. Leonard Young: With the minimum conflict- Thurgood Marshall: Yes. Leonard Young: Mrs. Moore, under room and house license, could apply for additional roomers. Thurgood Marshall: But this woman stands convicted of something. Now what has she done? What is she convicted of? Leonard Young: She is convicted, your Honor, the conviction is for having more than one family in the premises in question. Thurgood Marshall: Who is that “more than one family” as to person? Leonard Young: As to person at the time of the citation would be John Moore, Jr. As of now, since currently John Moore, Sr. is there, it would be John Moore, Sr. and John Moore, Jr. Thurgood Marshall: Well, as of the time of conviction? Leonard Young: As of the time of conviction, based upon the stipulation by the appellant, John Moore, Sr. was there also. So it would be the two of them. Thurgood Marshall: I thought you said a minute ago, it was – Leonard Young: Citation is different, your Honor, between conviction. Thurgood Marshall: Well, with citation, the only way that it could conform would be to throw this kid out on the street? Leonard Young: No, no, Your Honor. Thurgood Marshall: Well, how else? Leonard Young: One, the father, since he was living elsewhere, Your Honor, could take the child himself. Thurgood Marshall: Well, I am not talking about it, could John B Rockefeller could give him million dollars. Leonard Young: May I continue? Thurgood Marshall: But so far as the city is concerned, he could go out in the streets. Leonard Young: I would not go to that extent, Your Honor. Second thing is a point in the brief is that if the appellant, the grandmother had a guardianship, John Moore, Jr. would be part of her immediate family— Thurgood Marshall: Did anybody tell her that she could do that? Leonard Young: The record does not reflect this, Your Honor. I can assume that, my thoughts would be that the normal procedure here is that they are told. Thurgood Marshall: I cannot assume that. Leonard Young: Your Honor, my point – Thurgood Marshall: Unless you test— did you testify at the trial? Leonard Young: At the trial in question, I was present. After the conviction, this question was discussed with the counsel who represented appellant at the trial level. This was discussed in my presence with members of the Housing Department. Thurgood Marshall: As it is in the record in this case? Leonard Young: No, it was not, Your Honor. Thurgood Marshall: Well, I am not interested. I might as well go to the record. Leonard Young: I understand. Thurgood Marshall: And so far as the record is concerned, this young chuck could go on home relief, or welfare or something. Leonard Young: I would like to expand on the question that was raised when the appellant was present. At this point in time, and even after the conviction, for the appellant to make good application for variance, I think that question was raised and I would have to submit that it is possible even after the conviction for the application for variance to be made. Speaker: Of course, on his constitutional plan, your friend’s position is that the municipality has no right to require them to ask for a variance, that this right exists independent of that. Leonard Young: I might address myself to that. First of all, with regards to the fundamental rights issues, if we look at all of those cases dealing with that matter, if you look very closely, they are dealing with personal rights. The right, for example, of a person to vote, this is personal. The right of the female to determine whether she will procreate - again, personal rights. There is no law that counsel knows of in the State of Ohio that gives a grandmother a personal right to decide if her grandson can live with her. Speaker: What is the Right Of Association? Is that personal? Leonard Young: The Right Of Association in line of case, is dealing with there, again I would focus on the point that they deal primarily with relationship between what we call the nuclear family. Again, personal rights. The right to associate in this respect, the appellant is not being refrained from allowing her son, grandson to stay on weekends. Or even she - under the two systems I suggested – the hardship or guardianship – to actually assume full responsibility for him. I might point out that under the equal protection argument that was suggested by counsel, that in equal protection situations, the ordinance in question must be of a suspect character. There has not even been any argument to this effect or raised in the briefs in this instance. The Procedural Due Process, no proper notice was given, conferences were held, in this respect to try to determine how best to resolve this matter. William H. Rehnquist: You suggest, Counsel, we have never held a grandmothers were a suspect classification? Leonard Young: No, what I am saying is in a suspect classification Mr. Justice Rehnquist is that-- Speaker: Mr. Young, before you say it, I would like to hear you talk about what State interests are served by this ordinance? What legitimate state interests or purposes does this ordinance promote? Leonard Young: With regards to the state interest, Your Honor, we are talking here of overcrowded conditions. That is only one. There is the problem of traffic, tax burdens with respect to, not only to the city services. Warren E. Burger: Doesn’t the density provision take care of the overcrowded aspect, the health condition? Speaker: You have a separate ordinance on density, don’t you? Leonard Young: Yes we do, Your Honor. The density ordinance, with respect to square footage and density, partly covers our problem. If I may go back for a moment, the ordinance sequence was passed initially in 1961 defining family, redefined in 1964. It would appear that this legislative body at that point, found that they needed something additional, the two ordinances together from cooperating, working in complementary to deal with these three, actually four problems: overcrowding, traffic congestions and the tax burden so that the safety and the welfare of the city is handled within the income that the city is producing. Speaker: Is there any legislative history that indicates what the council had in mind when it devised an ordinance that prevents a grandmother from living with her children and grandchildren? Leonard Young: To my knowledge, your Honor, there is no legislative history in this— Warren E. Burger: There was in fact, an historical fact that brought a rather dramatic change in the nature of the population of East Cleveland, wasn’t there? Just about the time this ordinance was passed? Leonard Young: ’66, that would be the beginning of it, yes, Your Honor. Speaker: Mr. Young, is it conceivable that the city council might have been willing to allow more people per square foot in a house if it was a nuclear family than if it was not? Leonard Young: Yes, certainly Your Honor. In fact, we would suggest rather I would suggest that it is the nuclear family that the city commissioners had contemplated in passing of this ordinance. I might point out that, under the provisions or the definition of family, that under proper circumstances, other members of the family might be allowed to live in a given city, a given home. Speaker: Mr. Young, let met be sure about this. Another solution to the dilemma here would have been for Dale Sr. and Dale Jr. to move out. Leonard Young: Yes, that was a choice that the appellant could have made, yes. Speaker: The grandmother could move out or would have to -- Leonard Young: No, I would not say the grandmother could move out. She was the owner of the premises. Speaker: (Inaudible) Leonard Young: No, as long as she is the owner, I would not think it would be – Speaker: On your traffic congestion, you said only one kid did not have a license. Leonard Young: Your Honor, I would agree with that. However, I might point out that based on what has been before the Court at this time, you have Dale, Sr. and John, Sr., the appellant, who are adults. There are three automobiles there. This is a two-family, at least two adults on the other side. Speaker: If they are all legitimate, there is nothing wrong with that. Leonard Young: One of you asked me a question with respect to traffic. What I am pointing at is that, in a home where there is a two-car garage, you might have as many as five automobiles at this home. And I am focusing on the fact that the ordinance was aimed at more than just a question of overcrowdedness. Speaker: I take it that neither Dale, Sr. nor John, Sr. had these two boys, Dale, Jr. and John, Jr. There would be no problem even though each, the grandmother and the sons each had a car. Leonard Young: No, I would not – Speaker: There would be no violation of the ordinance if just the appellant and her two sons lived in the house, would there? Leonard Young: She can only have one unmarried son under the ordinance. Speaker: Even though neither had any children? Leonard Young: That is right. Speaker: The mother could have only one of her children to live with her, is that it? Leonard Young: She could have -- one unmarried son is being considered part of --may I expand that? One unmarried son is considered the family. The second son, since this is a two-family, would be there as what we call under the ordinance an unlicensed roomer. Speaker: What if they are both unmarried and neither has a child, aren’t they alright? Can they not stay with their mother? As I read the definition of family in 134108--- Leonard Young: I am sorry, you are correct in that. Speaker: Get back to my -- question. And if neither Dale Jr. nor John Jr. had been born, and John Sr. and Dale Sr. lived with their mother and each had an automobile, there would be no violation of the ordinance notwithstanding the traffic problem that it might have created, would it? Leonard Young: I would have to, under that factual situation – Speaker: It is only because these two seven-year old grandchildren are there. And the three automobiles become a traffic hazard. Leonard Young: In this case, that might be the situation, Your Honor. I believe that the younger grandson is not seven, it was— Speaker: Whatever it is, it does not, as Justice Marshall suggested, it is sill not a license (Inaudible) or is he? Leonard Young: No, he has not. Speaker: A mother with six children would be okay. Speaker: Well suppose -- Leonard Young: -- was the appellant—yes. Speaker: There would be no problem there. How about more than 12? Leonard Young: There would be a problem there under the square footage ordinance. Speaker: That would depend on the size of the building. Leonard Young: Well, if the appellant is a mother of 12 children -- Speaker: If one had 12 children in a 14-room house, it would be fine, right? Leonard Young: If under the ordinance of square footage, it would be fine, yes. Speaker: So the reason is to cut down the density and the traffic problem. Oh, incidentally, could all those children have a car? Leonard Young: I suppose if they are at the proper age, they could. Speaker: Could each one of them have a Volkswagen bus? In the same way, what about a truck? Leonard Young: With regards to a Volkswagen bus, I would have to answer this on the basis of whether it is classified as a truck or not. There might be some problem with regards to where it would be parked. Trucks are not allowed to be parked in the residential areas. Speaker: Certainly Mr. Young, you are trying to charge them with just “a” factor, is it not? It is not “the” factor. Leonard Young: In the Estin (ph) case, it is “a” factor, it is not “the” factor. Again, I would like to go back with regards to the, again, the tax situation. This is with respect to the income generated to provide services for the city, the normal services, fire, police and so forth. If we have an overcrowded condition on the basis of the city’s limited income, of course, you are going to reduce the ability of the city to properly provide services for all of the citizens of the community. I might point out that with regards to – Speaker: I am sorry, I do not think I followed it. How does this, I gather the way this would work is one father and son would have to leave in order to satisfy the ordinance, is that right? Or I suppose one of the grandchildren would have to leave this house in order to satisfy the ordinance. How does that alleviate the tax burden? Leonard Young: Your Honor, I am talking about taking the situation with the case we have at hand. In effect, again I realize it is not in the record, but in effect multiplying the situation that you get continued overcrowded situations throughout the City of East Cleveland. Speaker: As I understand it, if there were nothing but a density problem here, there would be no overcrowding. Is that right? Leonard Young: If there was nothing but a density problem, there would be no problem. Speaker: Yes, and in this house, there would be no overcrowding. But now the way it is, with the two grandchildren and there is an overcrowding and this somehow increases the cost of police, fire and other services? Is that it? Leonard Young: With regards to this, I would have to submit that that is the situation because again I have to go back. John Sr. initially was living elsewhere and, assuming he was employed, he was paying his taxes to another municipality. Yet his son is being educated in the East Cleveland School District. In the situation before the Court, the appellant is challenging the state interest with respect to the passing of these ordinances. However, it is submitted on behalf of the City of East Cleveland that these ordinance rather was passed on the proper exercise of the police power, that it is rationally related to the purposes for which it was enacted. Therefore, in order to raise the challenge, the appellant has the obligation, has the burden to show by clear evidence that there is an infringement on the appellant. And I submit that the record below does not show any evidence on the part of the appellant that this is the situation, that the ordinance is not rationally related to its purpose. In fact, this is a point that is mentioned by the Ohio Court of Appeals in affirming the decision of the trial court. In summation, the appellee submits that the issue before this court is whether, when a city can properly pass a municipal ordinance on its police power in the interest of the welfare, safety of its community provides in that ordinance means by which the appellant, if it felt harshly could have gotten a variance, and the appellant does not make an effort to apply to the appellate route, then the appellant has first of all no standing before this Court. Secondly, since there is no record to show that the appellant presented a clear evidence that this ordinance is arbitrary, the Court should sustain the judgment of the Ohio State Appellant District affirmed by the Ohio Supreme Court and we respectfully submit that this Court affirm the decision below. Speaker: Mr. Young, before you sit down, you made a point and I asked the question before about the availability of an appeal to the other side, that she could have asked for a variance. Does that not work both ways? Why couldn’t the City of East Cleveland, when they found out the facts that do not seem to be very extreme, why couldn’t they have simply withheld prosecution here? Why should the burden be on them when you have a situation like this, trying to get a seven-year old boy out of the house? Leonard Young: With regards to, first of all, I do not know the facts available to the housing inspector at the time of the citation. Speaker: But they surely were at the time of trial, weren’t they? Leonard Young: At the time of the trial, Your Honor, the appellant simply stipulated that these five individuals were living there and filed a motion to dismiss on constitutional grounds. Speaker: There is no evidence taken at the trial? Leonard Young: No, but after they made that stipulation, there was no further evidence taken. And since there was no application to the Board of Zoning Appeals, I do not know whether, there was no application made, there might have been a denial or it may have been granted. I really do not know in this instance because there was no application made to the Board of Zoning Appeals in this respect. Speaker: Of course, if you express, you are sure it would be good. Or did I read you wrong? Leonard Young: I said possibly. This is what, it said possibly would be granted with probably some limitations. Speaker: Probably. Possibly, you say. But you said it would probably be granted. Well would it, or would it not? Leonard Young: I really do not know. Speaker: You really do not know? Leonard Young: I do not know at this point until the facts are presented to the Zoning Appeal. Speaker: As of now, you do not know. Leonard Young: No, I cannot get a minimum guarantee, no. Thank you very much. Warren E. Burger: Thank you Mr. Young. You have anything further? Edward R. Stege, Jr.: I have nothing further at this time. Thank you. Warren E. Burger: Thank you gentlemen. The case is submitted.

William H. Rehnquist: We'll hear argument now in No. 02-857, Household Credit Services v. Sharon R. Pfennig. Mr. Waxman. Seth P. Waxman: Mr. Chief Justice, and may it please the Court: This case involves a regulation promulgated by the Federal Reserve Board to govern the disclosure of fees imposed for exceeding a credit limit. It does not involve any challenge to the fees themselves or any contention that the fees were not disclosed. Unquestionably they were. This case concerns only how such fees should be characterized when they are disclosed. Sandra Day O'Connor: Would you enlighten us on just how this transaction gets authorized in the ordinary course of events and in this event? Is there any special call made, or is the credit card just submitted to the store and the store processes it and if it's not rejected, it goes through? What happens? Seth P. Waxman: Well, as the Solicitor General has explained in his brief for the Federal Reserve Board, ordinarily the arrangement between banks... that is, the banks that issue the cards and the banks that do the corresponding relationship with the merchants... have an agreement between the merchants and the banks where the merchant will be liable for fraudulent use of the card or the other unless it obtains authorization to process the charge. And so in the ordinary practice, the board has explained, a merchant may or may not, is not required to, but may well call in the charge or submit the account number to the issuing bank via the correspondent bank and get an approval, yes or no, to process the charge. Now, the board has explained that when the issuing bank authorizes the merchant to process the charge, that two important things don't happen. One, it does not in any way represent a renegotiation between the consumer and the issuing bank, and it says nothing about the overall credit limit. And two, the issuing bank often will have no idea whether the charge being authorized will or will not trigger a credit limit of the consumer for a variety of reasons, not the least of which is that, as the board explains, credits and payments aren't instantly reflected, merchants often don't put the true amount of the charge in. They may, as hotels and... and rental car companies do... often block very large amounts because they don't know what the ultimate charge will be. And there is also a recognition in the industry, the board explains, of a certain tolerance. That is, the merchant... the credit card company won't always want to cut somebody off whenever it has a suspicion that they may have hit their credit limit because the merchant has a relationship with the customer. And since the system of information is so imperfect, the issuing bank also has a relationship with its consumer and doesn't want to embarrass the consumer. So the short answer to that... the short version of the very long answer is in the ordinary course, merchants have an incentive to seek authorization, but they're not required to, and the authorization that's given doesn't reflect knowledge by the issuer that a credit limit will be exceeded. John Paul Stevens: But, Mr. Waxman, is it not true that there are many occasions on which the credit limit will, in fact, be exceeded and there will, nevertheless, come back an approval, and that the customer in those cases may or may not know that his... that, A, his limit was exceeded, and B, that he's going to be charged for it? Seth P. Waxman: Well, the creditor... the consumer may or may not know that his or her credit limit was exceeded, but of course, that information is entirely within the knowledge of the... the potential knowledge of the consumer because the consumer does know what or... what charges he or she has made and what payments he or she has made. John Paul Stevens: Well, not necessarily. You can have a card owned by two or three people in the same family and maybe the husband spent some money that the wife didn't know about while this was going on. So it's at least possible that they would exceed the credit limit without the credit cardholder knowing it, their not being aware of it, not keeping track of it. Seth P. Waxman: Well, the-- John Paul Stevens: And... and I'm just asking you, is it not true that it is possible that he will receive an affirmative answer to using the card without knowing whether or not he exceeded the limit and therefore is going to be... be charged for it? Seth P. Waxman: --It's possible either because he doesn't keep good track or he doesn't... he's not accurate or he's allowed a child or a spouse to use the card and isn't keeping track or control of that. But one thing that you said, Your Honor, that is not true is the issuing... the credit card issuer is not giving permission directly to the consumer to do anything, and most particularly if-- John Paul Stevens: Well, but I'm not sure that's right. If the... if the credit card issuer is informed of the overcharge, that it's over the limit, and decides this is a good customer, well, let's not charge him for it or let's okay it anyway, he gives that information to the merchant and the merchant may not tell the customer anything about it. Seth P. Waxman: --The merchant-- John Paul Stevens: Isn't that true? Seth P. Waxman: --The merchant won't know. The merchant isn't going to tell the customer anything. John Paul Stevens: No. Seth P. Waxman: And the credit card issuer may not know. John Paul Stevens: But he may know. Seth P. Waxman: But you're positing-- John Paul Stevens: That's my point. Seth P. Waxman: --Yes. John Paul Stevens: The credit company may know and he will not pass that information on to the consumer. Seth P. Waxman: There is a credit... there is an agreement that must be accepted-- John Paul Stevens: Well, am I correct on my facts? Seth P. Waxman: --You're-- John Paul Stevens: Is it not possible? Seth P. Waxman: --You are correct that it is possible that the consumer won't realize it and the issuer may know. And in that instance, the issuer, which has no relationship directly with the consumer, doesn't tell the merchant to tell the consumer. John Paul Stevens: Correct. Seth P. Waxman: But, Justice Stevens-- John Paul Stevens: And so the consumer may end up paying a charge that he didn't realize he'd incurred. Seth P. Waxman: --Well, the-- John Paul Stevens: Is that correct or not? Seth P. Waxman: --That is only partially correct. It's correct factually given the hypothetical that you've articulated. It's incorrect legally because the credit agreement... it must-- John Paul Stevens: If he has... if he knows two things. He knows the fine print on the credit agreement and, two, he knows the status of his balance. Seth P. Waxman: --I-- John Paul Stevens: But if he doesn't have either of those in mind, it could occur... it could occur that he would run an overcharge and be charged $15 or $20 or whatever it is without realizing he's incurred the charge. Seth P. Waxman: --It is true with the following caveats. I'm not trying to fight the hypothetical. I just want to make sure-- John Paul Stevens: It seems to me you're unwilling to give me a categorical yes answer when the answer is yes. Seth P. Waxman: --And I can't, and here's why, Justice Stevens. I... I mean no disrespect. But many, many credit card issuers do not imply an over-limit fee on a transactional basis. They apply it, for example, if at the end of the month the balance exceeds the limit as opposed to whether a particular transaction sort of spikes it over the limit one time. And so I'm just trying to be completely accurate. Now, the term... I think it's very important-- John Paul Stevens: Well, you've given me lots of examples where the charge would not be incurred. I'm merely trying to get you to acknowledge there will be some cases in which a person who is not fully familiar with the... with the balance in his account doesn't realize he's gone over the amount and is being charged for an extra credit charge. Seth P. Waxman: --I think that must... there must be instances in which that is true. But the term, credit limit, Your Honor, is a term of art that is recognized in the industry, that is reflected in the Federal Reserve Board regulations, and it draws an important distinction between increasing a credit limit, an established credit limit, upon an application and authorizing a point-of-sale transaction. William H. Rehnquist: Well, now, Mr. Waxman, exactly what happens when a point-of-sale transaction is authorized? The merchant is then off the hook? Seth P. Waxman: The merchant has a safe harbor, Your Honor. The merchant is told, if you pay this charge and it turns out not to be collectible for any reason, we will hold you harmless. And that's the reason that this business... contractual relationship is established between issuers and merchants, as a way to encourage merchants to allow use of the card. Now-- William H. Rehnquist: Mr. Waxman, is... I'm sorry. Seth P. Waxman: --No. David H. Souter: Is the... is the event of exceeding the... the limit defined in these agreements characteristically as an event that can occur at any time during the billing period, or is it an event that is defined as... as occurring only at the end of the billing period when all the credits and... and all the debits are... are accounted for? Seth P. Waxman: My understanding, Justice Souter, is it varies depending on issuer and card, but that is, some... some cards will... all... all... well, there are some credit cards and charge cards that don't have limits, but when they have a limit, the limit is required to be explicated in the initial disclosures. And in the solicitation, the disclosure, and all periodic statements, the lender, the credit card issuer, is required to identify the credit limit and specify that fees that are charged for exceeding a credit limit will be the following amount. Ruth Bader Ginsburg: Mr. Waxman, will you explain what the consequence is? It's... this is not a question of disclosure or not because either it will be part of the finance charge and disclosed as such or the... whatever you call OCL. What difference does it make? It's not notice. If it goes... if it's part of the finance charge, how is the consumer benefitted? Seth P. Waxman: Well, I don't... I will explain what difference it makes. No one has yet explained, neither the respondent in this case nor the Sixth Circuit, how the consumer is benefitted by the rule that she's advocating or the Sixth Circuit's rule, but here's how it works. In the open-end credit relationship, the credit card or charge card relationship, there are three relevant events. One is the solicitation or advertisement to invite someone to enter into a relationship. That's called the solicitation. The-- William H. Rehnquist: Are you talking about solicitation for a purchase of a credit card or for purchase of merchandise? Seth P. Waxman: --For a purchase of a credit card. You get a letter in the mail saying buy a... open a Citibank card, and there are certain disclosures that are required in those solicitations. If you send back something that says, yes, I want to have a... I want one of your credit cards, the act and the regulations require that certain disclosures be made at that point, and that's called the initial disclosure. And then the third event is the periodic statement, when you get your statement every month or so. Now, with respect to the solicitation and the initial disclosure, the consequences of calling this a finance charge or a component of the finance charge versus an other charge are zero. That is, in both of those instances, the lender, the issuer, must disclose that there will be charges paid... fees assessed for exceeding a credit limit and how much it is. And they're not characterized there as part of the finance charge or otherwise. The... on the... those documents require a statement of what the APR, the annualized percentage rate, is, but the APR in those statements refers only to the periodic rate, the interest rate that's going to be charged to all... applied to all charges. In the-- David H. Souter: That's the only thing it could occur to. Seth P. Waxman: --Yes. David H. Souter: Yes. Seth P. Waxman: Because you don't know whether there will be late charges or over-limit charges. David H. Souter: Is... is it a consequence of... of the other position that they would somehow have to try to do the impossible? Seth P. Waxman: Not at those two stages, but at the third stage, that is, the periodic statement, when you get your bill every month, there is a difference there. In both instances, there will be a specification of over-limit charge, but if the Sixth Circuit is right, in those instances in which the issuer actually knew that the charge it authorized the merchant to process resulted in the consequence of an over-limit charge, it would be called over-limit charge finance charge. That is, there would be a line item that specifies what it is, just like any other charge or any other purchase or payment, and the amount. But it would affect the annual percentage rate, what's called the historical annual percentage rate, in the periodic statement. David H. Souter: Are there any other... other instances in the act where the APR, calculated retroactively on the monthly statement, is higher than what was the APR that was disclosed? Seth P. Waxman: Yes, there... yes, there are, Justice Stevens, because there are certain types of charges that may or may not occur. For example, if you use your card to get cash at the cash machine or something that will be... will... that are charged in the finance... that are part of the finance charge and will, therefore, affect the APR on the monthly statement, but won't be disclosed to the-- Anthony M. Kennedy: So... so then the respondent's theory could... and that's consistent with the act, I take it. So then respondent's theory could work. My concern was that respondent's theory couldn't work because you had... couldn't hypothetically calculate an annual percentage rate not knowing whether charge would be made. Seth P. Waxman: --Well-- Anthony M. Kennedy: But if you can and... and do have an adjustment of the APR that's permitted under the act, on the disclosure statement, then her theory at least can work. Seth P. Waxman: --Well, her... I'm not saying that her theory or the Sixth Circuit's rule couldn't work. It would require a great deal of additional rulemaking by the Federal Reserve Board because the APR is a... is a fraction, is a percentage, the numerator of which is the component of all the individual charges and the denominator is something that, in the context of an over-limit fee, is unclear. Does it apply to the transaction that it was applied to? Is it the average monthly balance? Is it for the whole month or part of the month? It's not impossible. But what it... what it is is directly contrary to the two objectives of TILA. The purpose of TILA is to come up with bright line classifications that are readily complied with by issuers and that help consumers compare competing costs of credit. That is manifest in Congress' purpose, and a rule that requires the treatment month to month, charge to charge depend on what the issuer knew at the time it authorized some charge that may later be determined to have triggered at... the... allowing the borrower to exceed the credit limit would cause these monthly APR's to vary widely and, it seems to me, can only create confusion and inability to say, well, gee, I just got an application or a... a thing in the mail from, you know, Citibank saying 17.3 percent, but I just looked at my statement and it's 79 percent. Ruth Bader Ginsburg: Mr. Waxman, I don't think you finished the answer to the question I asked, and what I wanted to know is if it's labeled a finance charge, then there won't be interest on it; whereas, if it's treated as a debit like any purchase, then the interest would run on it in the future. So could... it could be a difference for the consumer, could it not? Seth P. Waxman: Well, yes, in the month in which it has occurred because, with respect to the next month, whatever finance charge was applied and... and continues as a balance will also have applied to it the finance charge, that is, the interest rate that would apply. So, but with... there is a consequence in the month in which it is applied; that is, for whatever days it's outstanding, up until the... the end of the... the card's grace period, a finance charge could be applied to that other charge. Ruth Bader Ginsburg: So it could be... it could be-- --Why isn't it carried over from month to month? In other words, I... I get a late... this... this special charge, but I just pay the minimum, so I'm really carrying part of the special charge over to the next month. I pay interest on that too, I take it. Seth P. Waxman: These cards typically have a grace period in which you can pay off your balance and you don't have to pay any finance charge, but if you don't, whatever charges are carried forward, whether they derive from purchases or over-limit charges or late fee charges or... or finance charges in the previous month, something is charged against it. May I reserve the balance of my time? Seth P. Waxman: Very well, Mr. Waxman. Ms. McDowell, we'll hear from you. Barbara B. McDowell: Mr. Chief Justice, and may it please the Court: Congress has given the Federal Reserve Board broad authority to implement the Truth in Lending Act. The regulation at issue here is the permissible exercise of that authority. The board has addressed the disclosure of fees for exceeding a credit limit with a clear bright line rule which requires all such fees to be disclosed clearly and conspicuously but separately from the finance charge and APR. To use the Court's own terminology, that approach is neither obviously repugnant to the statute nor demonstrably irrational. To the contrary, the rule is a sensible one that, in the view of the expert agency, provides meaningful disclosure to consumers and clear guidance to creditors. There's no merit to the court of appeals' and respondent's contrary approach which would only impose exorbitant compliance costs on creditors without any meaningful benefit in terms of disclosure to consumers. The board's rule is not foreclosed by the statutory text. The act does not speak expressly to whether over-the-limit fees are or are not finance charges. Nor is that question resolved by the act's generally phrased definition of finance charges as charges imposed as an incident to the extension of credit. That phrase is ambiguous as to whether it encompasses charges that are imposed not as the cost of the credit that the creditor has contractually obligated itself to provide, but instead as a penalty for the consumer's obtaining some additional credit that she had no contractual right to obtain. The board's rule is rational. As the board recognized over-the-limit fees-- Sandra Day O'Connor: Ms. McDowell? Barbara B. McDowell: --Yes. Sandra Day O'Connor: Would you... as I understand the respondent's brief, it asks us to draw a line between the over-the-limit fees that are imposed for acts of default and those that are imposed for extension of the credit limit and says that Regulation Z draws such a distinction. Would you comment on that argument? Barbara B. McDowell: That argument is incorrect, Your Honor. The relevant provision of Regulation Z, which is at page 2 of the petitioners' brief, contains no limit of that sort. It speaks of charges for actual unanticipated late payment for exceeding a credit limit and for delinquency, default, or similar occurrences. It thus speaks in a categorical manner of charges for exceeding a credit limit. It doesn't condition them on whether it was unanticipated or whether it's tantamount to a default. The board has acknowledged that there are hypothetical situations at least in which a... a charge might be labeled an over-the-limit charge when it actually is not, when there actually, for example, is no contractual credit limit and... and a charge is simply, in that context, labeled inaccurately an over-the-limit fee. However, when a charge is, in fact, imposed by the creditor as a consequence of the consumer's exceeding the contractual credit limit, it is validly within this regulation. Ruth Bader Ginsburg: Was this an account that carried a finance charge? Because the regulations describe something called charge card that doesn't have finance charge, but could have an over-the-limit charge. Barbara B. McDowell: That's... the particular account at issue in this case was a credit card. Ruth Bader Ginsburg: Which did have a finance charge, or you don't know? Barbara B. McDowell: Yes, it does impose a periodic charge if charges that are run up during a particular month are not paid within the grace period. John Paul Stevens: If I understand the other side, they make kind of a plain language argument. They... they talk to the merchant. The merchant sends in... they want approve a $200 purchase and they get back, well, it'll go over the limit and is it okay. And they say, yes, let them go over the limit, and so they've extended additional credit. And... and they, if they're going to charge them $15 to do it, that would be a finance charge... I mean, that would be a charge for an extension of credit. Why doesn't it fit the plain language? Barbara B. McDowell: We don't disagree with you, Justice Stevens, that it is, at some general level, a charge imposed incident to the extension of credit. There was necessarily an extension of credit here. John Paul Stevens: In... in exchange for the higher credit limit, yes. Barbara B. McDowell: The... but... but the term, incident to the extension of credit, is an ambiguous one. The Court construed similar language in the Holly Farms case and recognized it to be ambiguous. It doesn't address precisely the nature or... or the extent to which a particular charge has to be connected to an extension of credit. And here, the board has reasonably viewed over-the-limit fees like late payment fees and other default fees as being imposed for a violation of the terms of the credit agreement rather than as-- John Paul Stevens: And then the... but wouldn't the customer say, well, I didn't violate anything? You told me I could do it. Why is it a violation? Barbara B. McDowell: --In the first place, there was no communication in this case, and there typically is no communication when we're speaking only of the authorization process. John Paul Stevens: But what if there were... what if there had been a communication? Would it be different? Would it be a different case if the merchant put the bank officer on the phone and said, you're over your limit, and the... and the customer said, is it okay for me to pay the extra 15 bucks for this... go over the limit $15? He says, yes, we'll... we'll okay it. And then they hang up. At the end of the month, he gets a $15 charge for that. Would that be... that would not be an extension of credit in your view if they talked on the phone and agreed to it instead of having to just go through these anonymous communications. Barbara B. McDowell: It would look more like an extension of credit, I... I might grant you, but the board is still entitled to draft categorical rules by virtue of its authority under section 1604(a) to make classification adjustments and exceptions. John Paul Stevens: There's no duty on the... on the part of the bank to say, of course, if we okay it, you have to pay an extra 15 bucks. Barbara B. McDowell: Well, Your Honor, you're raising a policy question that Congress or the board could address whether additional disclosures are required at the point of purchase. Here we're talking about disclosures that occurred later, days or weeks later, when the customer receives her periodic statement. John Paul Stevens: Just a bill that said, you didn't realize it, but you just earned a... you just... you owe us $15 that you should have realized. Barbara B. McDowell: Well, and whether it's imposed as a finance charge or... or as an other charge, the consumer is still going to have the... the kind of surprise that you referred to. And in the board's view, it doesn't make any meaningful difference whether, at that point when the customer receives her periodic statement, it is identified as one or the other. Indeed, it could confuse the consumer to have the over-the-limit fee included in the historic or actual APR on her periodic statement. If she were, for example, comparing that statement with a solicitation that she received by direct mail, she might be inclined to think that... that the solicitation offered better terms when it really did not. Ruth Bader Ginsburg: Would you agree that... that it would be to the consumer's advantage to have this categorized as a finance charge because then she wouldn't have to pay interest on that in... in future charges? Barbara B. McDowell: No, Your Honor. She would still have to pay interest on it. Whether it's labeled a finance charge or not makes no difference in that regard. It only has to do with how it's labeled and whether it's included in the actual APR on the... the customer's periodic statement. Even if it's labeled a finance charge, in other words, she can be charged additional interest. The periodic rate can be applied to it. So, in fact, the board has concluded that... that there's no benefit to consumers to treating over-the-limit fees generally as finance charges, and the Sixth Circuit's rule, in particular, would make no sense because it would depend on the creditor's subjective knowledge whether a particular charge was or was not included in the APR in the particular month. That would impose significant compliance costs on creditors and would not tell consumers anything that's particularly meaningful to them. When the board revised Regulation Z in the 1980-81 period, after the TILA Simplification Act, the board sought to focus on legally enforceable relationships, not on unenforceable understandings that a consumer might have as a result of a course of dealings with the credit card company. And understanding this particular provision, consistent with its plain terms, as applying to all charges imposed or exceeding a credit limit is consistent with that approach. It provides the meaningful disclosure and it avoids imposing unwarranted compliance costs. If there are no further questions-- William H. Rehnquist: Thank you, Ms. McDowell. Ms. Goldsmith, we'll hear from you. Sylvia Antalis Goldsmith: Mr. Chief Justice, and may it please the Court: This case has come full circle. It started 4-and-a-half years ago with the filing of a complaint, a complaint that says if you authorize the request of a consumer to have more credit and you tie a fee for that authorization, that fee is a finance charge. The question presented here is whether or not the Sixth Circuit has the right or should have invalidated a provision of Regulation Z with respect to the exclusion of certain over-limit fees, and we believe that resolution of that question brings us back to the complaint. What does the complaint say in that regard? William H. Rehnquist: Are... are you fully defending the decision of the Sixth Circuit, Ms. Goldsmith? Sylvia Antalis Goldsmith: We... yes. We believe that the Sixth Circuit's decision is that this fee, the fee in this case, is a finance charge, and we stand behind that decision 100 percent. We have stated in our complaint that this fee... and... and it's important to remember that-- Ruth Bader Ginsburg: Ms. Goldsmith, before you continue, the Sixth Circuit said a portion of Regulation Z is invalid because it's incompatible with the statute. Are you defending that invalidation? Sylvia Antalis Goldsmith: --In theory, yes. We... we feel that-- Ruth Bader Ginsburg: How about in practice? [Laughter] Sylvia Antalis Goldsmith: --We feel that perhaps the court did not need to go there, that... in... in looking at the situation now, we... we have always-- Ruth Bader Ginsburg: But you asked... you asked the court to do that. Sylvia Antalis Goldsmith: --Yes, we did. Ruth Bader Ginsburg: When you argued the case before the Sixth Circuit, you made it very clear that you were seeking a holding that a portion of Regulation Z was incompatible with the statute. Sylvia Antalis Goldsmith: I think to the extent that Regulation Z says that anything you call an over-limit fee as excluded from the finance charge, that is incompatible with the regulation. And we stand by our lower court argument that if that is the case, then that regulation cannot stand. And... and once the Government stepped in, we realized... a significant part of their argument is that the... that the Federal Reserve Board could say that. The Federal Reserve Board could say that all over-limit fees are excluded from the finance charge and we took that as a... as a tacit concession that the... the Federal Reserve Board didn't actually do that. What they said, within the context of section 226.4(c)(2), is that fees, penalty fees, fees for unilateral acts of default, need not be disclosed as part of the finance charge. And so while we support the Sixth Circuit's decision, this is a finance charge... no matter how you get there, you have to get to that point... alternately, as an alternate basis to support the decision, we realize that the regulation is not necessarily triggered in this instance. Ruth Bader Ginsburg: But that's an argument you didn't make before the Sixth Circuit. The Sixth Circuit... you told them that this regulation was incompatible with the statute. Sylvia Antalis Goldsmith: That is correct. And I... I have to fall on the sword in that regard, that honestly, until the Government stepped in and helped clarify that issue for us, we did... we were fighting a battle we didn't need to fight. And ultimately-- Ruth Bader Ginsburg: But they clarified it in the Sixth Circuit. So why didn't you say, oh, Sixth Circuit, we've now seen the light and we... we don't want the regulation declared invalid? Sylvia Antalis Goldsmith: --I don't believe that the Government clarified that for us in the Sixth Circuit. What... what clarified it for me was the Government's brief, the merit briefing in this case, where they said, I believe 28 pages into a 30-page brief, if the Federal Reserve Board wants to exclude all over-limit fees, they could, and that's sort of when the light bulb went off. They didn't. And that... that's sort of what took us where we are. And ultimately, I think there's precedent for this Court to review the ultimate basis to support this decision based on making sure that the-- Ruth Bader Ginsburg: Well, you used the word review. We wouldn't be reviewing it. We would be taking a first view of it. Sylvia Antalis Goldsmith: --I'm sorry. Ruth Bader Ginsburg: But you didn't... you... we would not be reviewing anything that the court below determined. We would be accepting a new argument that has not been aired below, and that's not review. Sylvia Antalis Goldsmith: I think that in Connecticut v. Door, for instance, this Court acknowledged that there are circumstances that this Court wants to make sure that the right rule of law is handed down. And if the questions are intertwined, the... the issues that were raised below and an alternate argument in support of the decision is raised before this Court, if it's a matter of importance, if it's a matter that the lower courts need direction on, if it's a matter that has been-- Anthony M. Kennedy: Usually if we're asked to affirm on an alternate ground, it's a ground that the court of appeals passed on as kind of an alternate ground. Here, the court of appeals didn't pass on this at all. Sylvia Antalis Goldsmith: --I agree. And like I said, I... I believe in the Connecticut v. Door case, this Court acknowledged that alternately we cannot put form over substance, and we need to make sure that the right rule of law is passed down. And I believe Justice Scalia, as a concurring comment in U.S. v. Burke, said there's got to be play in the joints, that even if it is not something that came to the Court procedurally, if it is something that... that meets the three factors I was enumerating from Connecticut v. Door, the Court will entertain an argument. William H. Rehnquist: It isn't just a procedural point, Ms. Goldsmith. We do better if we have an opinion of the court of appeals on the subject than if we're just launching it into... for the first time ourselves. Sylvia Antalis Goldsmith: And I would agree, and... and the only defense that I have to that is that this is a matter that has been fully briefed and argued by counsel before this Court. And when... when the case got taken in by this Court, everyone said to me, you have to remember why they took it in, and... and my understanding is is because the regulation has been challenged. And-- Stephen G. Breyer: What other argument is there? I don't understand. I thought... and I'm just mixed up about this. I thought that there is a Z regulation. It's called Regulation Z. And I thought Regulation Z says the following is not part of the finance charge, a charge for exceeding a credit limit. Now, are we talking about something in this case that is not a charge for exceeding a credit limit? Sylvia Antalis Goldsmith: --I believe so. Stephen G. Breyer: What? Sylvia Antalis Goldsmith: I think that a fee denominated an over-limit fee that is actually an anticipated cost for approving an extension of credit is in fact a finance charge. Stephen G. Breyer: Does it say on the paper this is a charge for exceeding a credit limit? Sylvia Antalis Goldsmith: I believe they called it an over-limit fee assessment. Stephen G. Breyer: All right. And so it's called an over-limit fee assessment and you pay it if you exceed the credit limit. You don't pay it if you exceed the credit limit, or do you? Sylvia Antalis Goldsmith: I think that's a factual question. I... I think-- Stephen G. Breyer: Oh, okay. Well, what is the answer to the factual question? Do you pay for exceeding the credit limit or do you not pay it for exceeding the credit limit? Sylvia Antalis Goldsmith: --I believe the facts of this case... this is not a fee that was imposed for the unilateral act of exceeding a credit limit. Stephen G. Breyer: Okay. So-- --It depends, doesn't it, on-- --there's a new argument, the first time in this Court, that this is not a fee for exceeding a credit limit. Was it made below in any form? Sylvia Antalis Goldsmith: I believe the allegations of our complaint have always been clear. Stephen G. Breyer: Oh, yes, but, I mean... that may be. I'm just asking, have you ever told any court before today that this is not the... I'm not... it sounds sarcastic, but I don't mean it to be sarcastic. I want to know. Have you ever before argued in this case, told a judge and... that this is not a fee, quote, for exceeding a credit limit? End quote. Sylvia Antalis Goldsmith: No. Stephen G. Breyer: No. Ms. Goldsmith, we wouldn't resolve a whole lot in this case, however, if we didn't reach that question, would we? Sylvia Antalis Goldsmith: I don't believe we would. Antonin Scalia: We... we'd just have another case a little bit down the line, perhaps with the same parties before the Court, arguing this... this follow-on question. Right? Sylvia Antalis Goldsmith: I believe absolutely. I think that what we realized is that the arguments that we were making in the court below, which... which we stand by, were premature. Antonin Scalia: If we don't resolve it, we've essentially wasted our time. What... what... doesn't it depend upon what the regulation means by credit limit? It could mean that limit set forth in the... in the agreement with the credit card company, past which there is no obligation on the part of the company to extend you any further credit. It could... it could reasonably mean that. Indeed, that... that's what I would normally think it does mean. Or it could mean what you want it to mean, whatever limit the company later places upon your desire to... to go ahead. Now, why should we accept your interpretation of it rather than the interpretation of the agency? We usually do accept the agency's interpretation of its own regulation. Sylvia Antalis Goldsmith: I don't believe that our interpretation conflicts with that of the Federal Reserve Board. If... if we look at the plain language of the regulation-- Antonin Scalia: We wouldn't be arguing here. I mean-- Sylvia Antalis Goldsmith: --I believe what the... what the Federal Reserve Board has said is that when you have a fee for a unilateral act of default, that that fee is properly excluded from finance charge. I believe in the-- Sandra Day O'Connor: --Well, don't we have to accept the Government's position? It's representing the agency, is it not? Sylvia Antalis Goldsmith: --Absolutely. Sandra Day O'Connor: So it is the agency position. Sylvia Antalis Goldsmith: I don't believe that you will find in the Government's brief an argument that the fee alleged in this case necessarily fits within the terms of section 226.4(c)(2). In fact, I believe several times, pages 17, 18 of the Government's brief, they talk about how over-limit fees were included as a penalty fee in that portion of the regulation. That gets us back to the complaint. Was the fee charged here a penalty fee or was it a fee for an anticipated, approved extension of credit? Stephen G. Breyer: I didn't think that was the Government's argument in my... as I read it. I thought there are some words here. For exceeding a... it says, for exceeding a credit limit. And as I understood the argument... I might not have perfectly well... is... I thought that their argument is basically when you exceed a credit limit, the company doesn't want you to do it. Okay? So it says, no. And if you do it, we're not going to cancel you out, but we will charge you a penalty. Now, sometimes it's what you say. Sometimes the company would love you to do it and get the extra money. In fact, they might make profits on that. So they'd love you to do it. But trying to distinguish between those two instances is too difficult, and because it's too difficult, we are going to have a blanket rule, and the blanket rule is if you fall within these words, exceeding a credit limit, this is not a finance charge. Now, that's what I understood it to be, a typical administrative agency argument. And they say Chevron, Mead, et cetera, we win. All right. Now, suppose let me... for the purpose of answering, please assume that you do have a charge here that falls within the term, exceeding a credit limit. What is your response to the argument that I just made? Sylvia Antalis Goldsmith: I think if we assume that this fee is a fee for exceeding a credit limit, then we need to look at the nature of the fee and determine whether or not that is obviously repugnant to the statute. And I think part of... of what we have been accused of doing is creating an impossible factual distinction. Some would be disclosed as a finance charge, some would not. And I direct the Court to the regulation itself that draws that factual distinction as to late fees. The... the Federal Reserve Board went out of its way, in both the language of the regulation and the commentary, to say if this is a unilateral act of default, you have paid late or not in the amount that you were supposed to pay and we absolutely did not authorize that, that must... that would be excluded from the finance charge. But if the creditor acquiesced in that in any way, that is a finance charge. And what our position is is that a late fee-- Antonin Scalia: I mean, you say the agency said this? Where... where did the agency say that? Sylvia Antalis Goldsmith: --In both the regulation itself and the commentary. In the commentary-- Antonin Scalia: What... what portion of the regulation says that? Sylvia Antalis Goldsmith: --That's in 226.4(c)(2) in the portion that says actual unanticipated late payments. And in the commentary, the... the board has defined actual, and it's the qualification of actual unanticipated goes to the question is this a unilateral act of default or is this something that the creditor acquiesced in. So our... our point is is that if you look at-- Antonin Scalia: I suppose that depends on what... what time period unanticipated refers to. Sylvia Antalis Goldsmith: --I believe that the commentary helps explain that for us. Antonin Scalia: Okay. What does the commentary say? Sylvia Antalis Goldsmith: The commentary says if this is truly a late fee because you have paid and the creditor could do nothing about it, then that is going to be an actual unanticipated late fee. But if this is something that month after month after month you paid late every month and they could be deemed to have acquiesced in that late payment, that must be disclosed as part of the finance charge. Antonin Scalia: Where... where is that in... in your brief? Sylvia Antalis Goldsmith: The portion of the commentary... to be perfectly honest, I don't know if the... if the commentary is reprinted in the appendix. The regulation language is-- Antonin Scalia: Gee, if it's that central, I would have thought it ought to have been there. It's new to me. Where... where is it? Sylvia Antalis Goldsmith: --I don't know, Your Honor. Antonin Scalia: You don't know what you just said? Sylvia Antalis Goldsmith: I don't know where in the appendix it is is what I don't know. I know that section 226.4(c)(2)... the commentary specifically outlines the fact that there is a distinction between acts of default and... and acquiesced... oh, thank you very much. What counsel was handing me is the actual C.F.R.. I mean, the commentary that follows C.F.R. section 226.4(c)(2). What I don't believe is that is reprinted in full anywhere in the appendix or in the briefing. I thought that's what your question was. Antonin Scalia: Yes, sort of. I... I'd like to know what it is that you're... you're saying makes your case. I... I don't have the text in front of me and you say it's nowhere to be found in all of these voluminous materials that we have for this case. Sylvia Antalis Goldsmith: I was trying to give an analogy as to late fees which is somewhat tangential to the issue. What the point is is that a late fee... you have to start with what the concept of an extension of credit is. And... and we do outline this in our brief, that we're talking about each and every time a consumer seeks to make a purchase, they're essentially saying may I have an extension of credit to cover the purchase. David H. Souter: May I ask you a question about that? If... if you are correct in your analysis, why isn't the answer to the problem that you raise here is simply that they are not entitled to charge you any fee at all, no matter what you call it? Because if I understand your... and I may not, but if I understand your argument, your argument is they agreed to my charging beyond the limit in the agreement as we originally negotiated it. They said it's okay. And if that is the case, why isn't your argument and your remedy simply they can't charge me any penalty at all for that? They agreed to it. And we never even get into the question that we've got in this case. Sylvia Antalis Goldsmith: I think the answer to the question is is that this is really no different than a request to... to... a request to make a purchase below the credit limit versus a request to make a purchase above it. Either way, they could charge you a fee. I mean, that's... that's what-- David H. Souter: No. Sylvia Antalis Goldsmith: --credit is. David H. Souter: But if your point... and I think I'm not getting your point, but if your point is that they approved this in the sense that they said, yes, we will honor this... they're telling you in... in effect... we will honor this charge and that that, in effect, is a renegotiation of your credit limit with the bank, then it would follow that they can't charge you any penalty at all. The only thing they can make you do is pay what you have charged. And if that's the case, we don't need to get into this... this complicated question about Regulation Z. All you have to say is, I don't owe you a cent for exceeding the credit limit. Why isn't that the answer to your question or to your problem? Sylvia Antalis Goldsmith: I think two things. First of all, we have never claimed that this is a renegotiation of the credit limit. We have always taken the position that there is a distinction between renegotiating your credit limit and getting an extension of credit that happens to take you over your credit limit. So that... that's the first issue. The second issue is-- David H. Souter: So you're saying, yes, it violates the contract, but it's okay to violate the contract because they... they approved in advance this charge. Sylvia Antalis Goldsmith: --We do not feel that it's a violation of the contract if they allow you to do it. David H. Souter: Then if it's not a violation of the contract because they allowed you to do it, why do you concede that they can charge you any fee at all for doing that? Sylvia Antalis Goldsmith: I'm not conceding that they can charge you a penalty on top a finance charge, but what I'm saying is that anytime a creditor extends credit, they may charge a fee and-- David H. Souter: Okay. Sylvia Antalis Goldsmith: --as a credit. David H. Souter: They may, but in the original contract with you in the... the... at the... at the beginning of your relationship with the bank, they didn't spell out the particular situation that you're describing here. They said, in... if I understand it, if you go over the limit, we charge you X dollars, and... and that was the extent of it. You're fighting about whether the X dollars should be classified as a finance charge or something else, but your argument now is a different kind of argument. Your argument now is they, in some sense, approved my going over the limit. If that does not change the original agreement, then what difference does it make? If it does change the original agreement, then why isn't your remedy simply to say you can't charge me a fee at all for going over the limit? Sylvia Antalis Goldsmith: I believe what we have always said is that this extension of credit was like any other extension of credit on the card. Whether Ms. Pfennig goes in 2 weeks before her... her credit limit was exceeded and says, may I have enough credit to make this purchase, and they say, yes, and contractually we know-- David H. Souter: Yes, but your... your argument is that the extension of credit in this case is an agreement to exceed the credit limit. Isn't that your argument? Sylvia Antalis Goldsmith: --I don't think so. Antonin Scalia: I thought your argument, Ms. Goldsmith, was that the contract provides that any extension of credit over the credit limit shall be subject to the regular percentage plus the $15 penalty. Right? I mean, you acknowledge that there is an agreement at the outset as to what the finance charge will be for this added extension of credit. It'll be the regular rate plus the penalty. Sylvia Antalis Goldsmith: I don't-- Antonin Scalia: If that's not your argument, then... then I think Justice Souter has to be correct. Sylvia Antalis Goldsmith: --I think at this stage of... of the litigation, since we have not conducted any discovery, we have not seen the actual cardholder agreement to know what it says with regard to over-limit fees. So I don't think I can answer the question in that regard. Ruth Bader Ginsburg: Didn't... didn't Ms. Pfennig get a copy? I mean, the... isn't it on her monthly bill? Sylvia Antalis Goldsmith: On her bill it will tell her what her contract rate is, but the initial disclosures... I believe she had this card 7-8 years before this happened and it is not in the record. Ruth Bader Ginsburg: I thought... I thought the terms have to be disclosed monthly in addition to when the credit card is new. Sylvia Antalis Goldsmith: What has to be... and... and I believe that... that Mr. Waxman explained this, but you have your initial disclosures that come with the card when you originally get it. What has to be disclosed on a periodic basis is an itemization of each extension of credit that you've received, a total that you've received, plus your... your APR. Those types of terms of what the cost of credit is on a monthly basis are going to be on your periodic statement. I believe what... what Justice Scalia's question was is what does the credit card agreement say as to is she going to be charged a flat fee, is she going to be charged a flat fee plus the finance charge, and that is not in the record. We don't have that. David H. Souter: And if that's not in the record, how can you make the argument you're making? Because the argument you're making depends on whether, in effect, the... the agreement is Justice Scalia's suggestion or my suggestion. And if that's not in the record and you don't know, how do we get into this at all? Sylvia Antalis Goldsmith: I think the confusion is coming in because ultimately what is or is not labeled in an over-limit fee may not be a fee for exceeding a credit limit as that term has been used in the regulations. David H. Souter: And the only way we can tell that is to look at the contract, isn't it? Sylvia Antalis Goldsmith: I don't believe so. David H. Souter: No? Sylvia Antalis Goldsmith: I believe that if you look at section 1637(b)(2) that describes how each and every extension of credit needs to be itemized, we're talking about a singular event, an extension of credit. She says may I make this purchase. May I have an extension of credit to cover this purchase, and they say yes. And in everyday experience, we all know that means you're going to be charged something for that extension of credit. It's going to be charged a finance charge. William H. Rehnquist: Are you talking about just an ordinary credit card transaction where you go in and say, look, I'm buying a pair of gloves and I want to put them on my credit card? This you're describing as a request for an extension of credit? Sylvia Antalis Goldsmith: Absolutely. William H. Rehnquist: Okay. So we're starting back that simply. Then how did we get so complicated? Sylvia Antalis Goldsmith: I'm not quite sure. [Laughter] John Paul Stevens: Well, one reason it's complicated, if I understand your position, you're objecting both to the fee and to the later statements imposing an interest charge on the fee, aren't you? Sylvia Antalis Goldsmith: I think it's triple dipping, yes. I think that, as Justice Ginsburg pointed out, they... they charge you for the extension of credit. You get a finance charge on your actual extension of credit. They impose a penalty fee, and then they charge a finance charge on the penalty fee-- Antonin Scalia: If that's in the contract, so what? A deal is a deal. If you agree, I pay 10 percent up to this amount, if I go over that amount, I pay 10 percent plus $15, if that's in the contract, isn't that perfectly fair? Sylvia Antalis Goldsmith: --I think-- Antonin Scalia: And you don't know whether it's in the contract. So you can't say it's unfair. Sylvia Antalis Goldsmith: --But this is not a breach of contract case. This is a Truth in Lending Act case, and the only thing the Truth in Lending Act-- Antonin Scalia: Whether it is or not, you shouldn't call it unfair if you don't know. Sylvia Antalis Goldsmith: --I don't recall using the word unfair. I'm sorry. I... I believe that Truth in Lending is about disclosure as to whether or not they have to-- John Paul Stevens: Could I interrupt with this one question? I want to be sure I get it out before the argument is over. Would you explain to me what difference it makes, in terms of notice to the consumer, whether one calls it a... an other charge or a finance charge? In either event, doesn't the consumer get exactly the same notice? Sylvia Antalis Goldsmith: --I don't believe so because when it is charged as a flat fee as an other charge, besides the fact that there's interest charged on top of it, the consumer is in a position that they then need to compare cost of credit, one, as a dollar figure, the other as an APR. And while I believe Ms. McDowell said that the primary purpose of TILA is to create bright line rules for the credit card industry, I think there is significant support, as this Court has stated, that one of the primary objectives is making sure the consumer can understand the cost of credit. And... and Congress has said we-- John Paul Stevens: But why would the consumer understand the cost of credit any better by labeling it a finance charge rather than an other charge? That I haven't... you haven't explained to me. Sylvia Antalis Goldsmith: --Because Congress said we want that to be an apples-to-apples comparison. So Ms. Pfennig can know that the extensions of credit she received up till now were charged at 18.49 percent. She knows that the extension of credit she received over her credit limit was $29-- Stephen G. Breyer: So how does that work? I... I exceed my credit by $15. My colleague exceeds his credit by $42. Each of us is charged a $15 late fee. What's the interest rate? And, of course, there are an infinite number of possibilities. So I guess I'd get a... a statement that would be every conceivable possibility of how much I go over with interest rates ranging from like.2 percent to 48,000 percent. So, I mean, how... how is this supposed to work? Sylvia Antalis Goldsmith: --The simple answer is I don't know. Ultimately I think the Federal Reserve Board does have to offer the direction of how this will be disclosed, but I think the important thing... and I believe-- Stephen G. Breyer: I think that's why Justice Stevens might have thought it's going to confuse the consumer if you win, not help the consumer. I would think it's much more informative to the consumer to know that my interest rate for all of the things up to the... my credit limit has been this past month so much, and... and then see a separate charge, God, I got socked 15 bucks for going over my credit limit. You think you're helping the consumer by... by taking that $15 separate charge and just mushing it into the general overall credit limit so that instead of thinking he's being charged 10 percent, he thinks he's being charged 11... 11 percent, and he doesn't know anything about the late... about the... the going over his over limit fee? I don't think that helps him at all. Sylvia Antalis Goldsmith: --But I don't believe that that's necessarily how it would be done. I believe that, Justice Breyer, you had said earlier about how certain... there are instances where certain fees are disclosed differently. You can have a situation where a cash advance is calculated at a different APR than the contract rate of the finance charge. An ATM fee might be charged at a different... a different APR than something else. And those are itemized at the bottom. You wouldn't necessarily not let them know that this was a charge incident to something over the credit limit, but you would put it in apples-to-apples comparison, which I believe-- Stephen G. Breyer: But, of course, the difficulty for you is all you have to say is that the view I was taking somewhat by argument is a reasonable one, and if it's a reasonable one, I guess it's a reasonable interpretation of the statute. And therefore, Regulation Z doesn't violate it. Now... now, you haven't been able to show us how we'd get on the opposite interpretation. We didn't even know what the statement would look like. So it's very hard for me to say it's not reasonable what the... what the... that Regulation Z, isn't it? Sylvia Antalis Goldsmith: --I think that ultimately depends on... on the construction of the regulation. We... we seem to want to parse out for exceeding a credit limit without looking at the context of the regulation that these are acts of default. And what we have alleged in the complaint, which ultimately is controlling here, is not an act of default. So in that instance, the regulation is not triggered and it's premature for us to decide whether or not it was rationally based. Ruth Bader Ginsburg: The one thing that the... the board has said is we don't want these individual to make every extension of credit or what... to do this kind of thing on a case-by-case basis. That's why we're establishing these categories. And your interpretation was making the credit card company has to know and every one is going to be a knock-down, drag-out, specific facts of the case. And that's exactly, it seems to me, what the board didn't want to have happen. Sylvia Antalis Goldsmith: And I think that gets back to Justice... Justice Kennedy's question of quite some time ago. Where I was trying to go is that there is a distinction in the nature of a late fee and an over-limit fee. And the... the Federal Reserve Board went out of its way to create that factual distinction as to late fees. And late fees, by nature, are on the periphery of the cost of an extension of credit. While the total has to be disclosed and your late payment is associated with whether or not you paid toward the total, an over-limit fee by its nature is tied to a specified extension of credit. May I have this extension of credit, which happens to take me over the credit limit? Yes, you may, but we are going to charge you a fee for that. And I think that's the distinction, is that to the extent we have to get to... let's just assume the regulation controls here. Does it make sense? Is it rationally based to create a factual distinction as to late fees which are on the periphery of the cost of an extension of credit and not do so for an over-limit fee that goes to the very core of what the finance charge is supposed to disclose? Ruth Bader Ginsburg: Now you're going back to the regulation itself is no good. Sylvia Antalis Goldsmith: To the extent that it controls here, which I'm not sure it does, I think yes. And that... that decision comes down the nature of the fee and whether or not it is so integrally tied to the cost of an extension of credit that it has to be disclosed as part of the finance charge, and we think that it does. Ruth Bader Ginsburg: Ms. McDowell said that... that in dollars and cents, there's no difference to the customer using... there is a dollars and cents difference, I take it, and would you explain what it is? Sylvia Antalis Goldsmith: Yes. With all due respect, I believe she said... may I finish the question? William H. Rehnquist: I think you've answered it. Mr. Waxman, you have 3 minutes remaining. Sylvia Antalis Goldsmith: Thank you. Seth P. Waxman: The question of whether or not we disclosed this fee properly within the regulation was passed on by the lower court. It is the law of the case. The lower court held, as the second part of its ruling, that, quote, unequivocally the regulation required us to disclose this fee as an other charge. Now, Justice Scalia is correct that how you interpret the Fed's bright line regulation which says, at page 2 of our blue brief, the following charges are not finance charges. Charges for exceeding a credit limit, of course, depends on what credit limit means, and credit limit is a term of art. Everybody in the industry understands it. Even the respondent at page 1 of her brief, she says, quote, in the middle of the page, a credit limit represents the amount of credit the card issuer has preapproved the consumer to obtain. There's no possible allegation in this case that she ever asked for an extension of her credit limit or received an extension of her credit limit. And there is a reason that the board came up with an absolute bright line rule, and the reason is that before 1980, when Congress mandated classifications in order to simplify things for creditors and consumers, the Federal Reserve Board confronted... confronted questions like many of the hypotheticals that Justice Stevens and others have asked here. Well, what if... what if they knew that it was going to exceed it and what if somebody actually called and asked permission. I don't want to be embarrassed in the store. Will you authorize this? The board literally... and some of... many of these letter interpretations are cited in the briefs in this case, although not all of them. The board drove itself crazy trying to answer all of these hypotheticals and came up with a set of letter rulings, exacerbated by the Federal courts also trying to come up with their own interpretations, that made it impossible for issuers to come up with formulaic disclosures that would prevent them from being socked with huge class action awards and allowed them to present information that consumers could compare. And so Congress said in 1980 we want bright line classifications, and that's exactly what the board did. In 1980, the board said that it was amending its regulations to, quote, substitute where possible precise, easily applied rules for principles that create ambiguity and-- William H. Rehnquist: Thank you, Mr. Waxman. Seth P. Waxman: --Thank you, Your Honor. William H. Rehnquist: The case is submitted.

Warren E. Burger: We'll hear arugments next in Solem against Stumes. Mr. Attorney General. Mark V. Meierhenry: Mr. Chief Justice, and may it please the Court: This case comes to the Court from the Eighth Circuit Court of Appeals. The Eighth Circuit Court of Appeals, under the case of Edward versus Arizona, in a case collaterally attacking the conviction of Mr. Stumes, reversed the District Court. The question presented to this Court is whether Edward versus Arizona will be applied retroactively to the case of Mr. Stumes when that attack was made by a habeas corpus relief. The facts essentially on this case is in 1973 Norman Stumes killed a young lady in Sioux Falls, South Dakota. This occurred on September 17, 1973. Ten days later he was arrested in Green Bay, Wisconsin, on other charges that had been pending, not on what were originally filed as murder charges, but on perjury charges and other charges at that time. During the time that the authorities were seeking him for questioning concerning the death of Miss Hoff, his mother hired an attorney for him. And, his attorney had a conversation with the law enforcement officers in Sioux Falls, South Dakota, and that lawyer advised the law enforcement officers that if he got a hold of Mr. Stumes first, he would tell him to turn himself in for questioning. On the other hand, if the authorities found him first and arrested him first, that they would not question him until the attorney, Mr. Jorgensen, was notified, and that was done. Mr. Jorgensen was notified some time on the 27th of October 1973... or the 27th of September 1973 that Mr. Stumes had been arrested over in Green Bay. Mr. Jorgensen then, either on the 28th or the 29th of September in 1973, called Norman Stumes and told him not to talk to anybody until he was brought back to South Dakota, to exercise his right to speak with no one. Upon being arrested by the Green Bay authorities, he was given his Miranda rights which were required in 1973 and he made no statements at that time. Later on two police officers, as well as a deputy sheriff from South Dakota, went to Green Bay to transport him back and they arrived there on October 1st. They met with Mr. Stumes in Wisconsin, Brown County, Wisconsin jail at which time Mr. Stumes gave them voluntary permission to search where he had been arrested, the place where he had been arrested and his automobile. He was also given Miranda warnings at that time by the South Dakota authorities and a conversation ensued for about an hour and 45 minutes of which nothing incriminating came out of that. Later that afternoon there was another conversation between the Defendant and the authorities. He was not given his Miranda rights. The record is clear. And, the only, as found by the District Court, the only true incriminating thing is that he admitted that he had intercourse with the dead girl on the day in question and he also, in answer to a question posed to him, was this death accidental, he answered that it was. Of course, he was going to be brought back to South Dakota on these other charges, not the murder charges, and so on October 2nd, they proceeded to get an in automobile and drive the 500 miles from Green Bay, Wisconsin, back to Sioux Falls, South Dakota. When they got in the car, he was once again given his Miranda warnings. And, a conversation about the case, about the murder part of the case, took place for 20 or 30 minutes. They left about 9:00 in the morning from Green Bay, drove in a westerly direction towards Sioux Falls, South Dakota, arrived back in Sioux Falls, South Dakota about 6:45 in the evening. But, about 90 miles from Sioux Falls, Norman Stumes, and I will take his words, said... Norman Stumes, in testifying at various hearings, said, "I had a little conflict with my emotions. " and he began to sob and he made the statement to the effect, I don't understand why anybody would want to kill a young girl like Joyce. And, Detective Green, an officer of the State of South Dakota, said, Norman, it probably... Why don't you get it off your chest, at which time he made admissions that implicated him and were used against him at his trial. And, Stumes also said at that time, according to Detective Green, that I have been wanting to tell somebody about this but I didn't know how to do it or who to talk to. This conversation took place approximately 90 miles from Sioux Falls, and although the record is not clear, about 5:00 in the afternoon. Throughout that time, from 9:00 to 9:30, throughout the day, Norman Stumes himself says he was not interrogated, that there was general conversation about the Green Bay Packers, automobile racing, and other such things. Just prior to his starting to sob and make these statements... he describes the situation, the Defendant does, like this: That there had been no conversation in the car for 10 or 15 minutes. Officer Skadsen, who was sitting in the front seat of this automobile, was almost alseep, he was nodding off. The other gentleman was driving. Detective Green was looking out of the window somewhat bored. That is when he had his conflict with his emotions, began with the statement, why would anyone want to kill Joyce, began to sob. The officer said, Norman, get it off your chest, at which time he made the statement. Once they returned back to South Dakota, he was placed in the jail. The officers broke off all contact with him. They went to another part. He sent word out through a jailer, called Detective Skadsen back into the jail area, and said to Officer Skadsen, please tell them that I am not a vicious killer, that I didn't mean to do it. The Eighth Circuit held Edwards to be retroactive and held that in-- Byron R. White: What about the rest of the facts? He sent word out and then what happened? Mark V. Meierhenry: --Officer Skadsen came back into the jail area. Norman Stumes came out to him-- Byron R. White: What did he say? Did he want to talk or what, the officer? Mark V. Meierhenry: --The officer said basically what did you want, Norman, or... I can't recall the exact words, Justice, but words to that effect. Byron R. White: And then what happened? Mark V. Meierhenry: He said to Skadsen, Officer Skadsen, he said tell them that I am not a vicious killer. Byron R. White: Then what happened? Mark V. Meierhenry: Then-- Byron R. White: Were there any other admissions at that time? Mark V. Meierhenry: --No, other than he was not a vicious killer and he wanted Officer Skadsen to tell others that he was not a vicious killer. Byron R. White: What statements were admitted at his trial, the ones in the car-- Mark V. Meierhenry: Yes. Byron R. White: --And anything prior to that? Mark V. Meierhenry: Yes. Byron R. White: Any of his statements prior to that? Mark V. Meierhenry: Well, a description of his statements prior to that. The only truly incriminating statements took place in the automobile and also later. The threshold-- Byron R. White: Later when? Mark V. Meierhenry: --At the jail, the one we just alluded to. Byron R. White: Is that the only one? Mark V. Meierhenry: The only one from the prior day of October 1st in the afternoon was he admitted that he had intercourse and when asked the question, what kind of death was this, was it accidental? He said it was accidental. That was admitted as well as the conversation in general that I have alluded to in the automobile at approximately 5:00, based on driving times in the afternoon, and then the one back at the jail after he had been lodged into jail on these other charges. Byron R. White: What is your defense of the statements made the day before? Mark V. Meierhenry: Well, first of all, it is two parts. First of all, this Court will should agree, I guess you would say, to apply the retroactive effect. Speaker: Right. Mark V. Meierhenry: I don't think we get to that unless this Court decides to apply Edwards retroactively, which, of course, we would say this is like Miranda and the many other cases this Court has not applied retroactively, shouldn't be applied retroactively, because the Court has indicated to those of us whose duty it is to educate the law enforcement officers... At least in my state it falls upon the Attorney General, and when this Court makes a rule like Edwards, a new rule, one that we were not used to, certain things go into operation. As the Attorney General, my duty is to train all the law enforcement officers as well as to supervise prosecutors. So, when this Court... Within days after this Court makes a new rule like Edwards, we immediately send out in police parlance, you might say, what can occur and what cannot occur throughout our state and that is done on almost an emergency basis, because there is no reason to start a case and not follow the proper procedures. So, with that in mind, we have to decide whether this case should be retroactively applied as the Eighth Circuit did, and, of course, as indicated in the Palteire case, this is not an appropriate type of case for retroactive effect. It does not assist in any way the truth-finding portion of the trial. As a matter of fact, if we follow what the Eighth Circuit has said, and we go back and retry Norman Stumes, the truthful statements that he made to law enforcement officers will be suppressed by the exclusionary rule, whereas, those matters found to be untruthful, his version of what happened that day, and his attempt, testifying under oath before a jury to escape the culpability that he had admitted to prior, will be allowed in. In other words, we will have decided a case, apply the exclusionary rule retroactively, take the truth out of the case, and leave the Defendant-- William H. Rehnquist: But, if he takes the stand and testifies the way he did, wouldn't some of the statements that might be excluded initially under Miranda and Edwards be admissible on cross examination? Mark V. Meierhenry: --Yes, Justice, but I can't imagine a competent defense attorney would ever put him on the stand. I mean, from a practical viewpoint, it wouldn't occur. William H. Rehnquist: But then his statements in the new trial, his testimony wouldn't be presented any more than the adverse testimony. Mark V. Meierhenry: That is right. And, of course, if you look at this case, and I will not make any admissions as to what would occur later except that we are obviously committed to reprosecute if the Eighth Circuit is confirmed, but this is ten years ago. Officer Green is dead. There is obviously a different approach as to the evidence we will have to present at the second trial from the first. The removing of his admissions and confessions in most of these types of cases where the admission or confession occurred early on effectively denies the public the right to have a trial on this issue. First of all, it was not the law in 1973, when Norman Stumes went to trial, and when the Circuit Judge of our state first ruled on his admissibility or the Supreme Court of the state. So having had that direct part of the case over, we do not have at this time the resources to keep ten years of evidence for every criminal case tried in the State of South Dakota, which the Eighth Circuit seems to be saying to us that we must do. We must wait in case there is a retroactive application of a case like Edwards. Are we going to build mammoth evidence lockers in our state to keep the evidence of each and every case with the chance that it could be applied retroactively, because the state most certainly does not want Norman Stumes just turned free. We would have to make an attempt to retry him for the vicious killing that he really has never made any claim throughout the appeal that he didn't do. It isn't a question of whether this man killed a young girl for no reason in Sioux Falls, South Dakota. The question is whether we make a retroactive application of the exclusionary rule which this Court has said in different decisions is a rule to prevent, to deter those of us in law enforcement in the future, but in this case it will most certainly not do that. The day Edwards was decided and we got word in the State of South Dakota, law enforcement changed. We did it on an emergency basis, because the Edwards case-- John Paul Stevens: May I ask, would you tell me exactly what you did differently after Edwards than what you thought was required before? Mark V. Meierhenry: --Well, the way we put it out to our prosecutors and our law enforcement officers is in the context that it basically added another element of proof to any case where someone confesses or makes admissions. And, I know... I am going to answer your question not according to what the Court has described it, but the way we described it to the cop on the street that has to do this the day after your decision in Edwards. We said it is like another element of proof. It has totally changed the way we did it under Miranda. Therefore, it is up to us to prove that the individual, once he has made a claim to remain silent or for a lawyer, we have to be able to prove that not only did he waive that right, that he did so willingly and he came to you. So, what we told our officers is that is a very important... We can't even get to trial or we will never be able to use it unless you can prove that it was a knowing, willing situation. John Paul Stevens: What did you tell your officers before Edwards when a person being interrogated asked for a lawyer? What were the outstanding orders to the police at that time? Mark V. Meierhenry: We told them, just as the District Court Judge, Judge Nichol found in this case, to scrupulously observe, as was done in this case, that if he wants to talk to a lawyer, you cease questioning and give him an opportunity to do so. And, on two occasions in this very case, that was done. John Paul Stevens: Did you have a rule on whether you could start reinterrogation after any specific-- Mark V. Meierhenry: The State of South Dakota did not. We were not aware that this Court or any other federal court said that you can never talk to a criminal defendant again. John Paul Stevens: --Well, it says... I mean, the passage of Miranda they quote, until they had consulted with a lawyer. Mark V. Meierhenry: Well, first-- John Paul Stevens: Wasn't that plain in Miranda, that you weren't suppose to talk to him a second time until he talked to a lawyer in the interval? Mark V. Meierhenry: --Well, I think that was his right to exercise. He had to be given the opportunity to exercise that right. But, again-- John Paul Stevens: Was it your view that the police could just wait a couple of hours while he had an opportunity to exercise the right and then just go back in? Mark V. Meierhenry: --I think they could go back and inquire if he wished to talk. John Paul Stevens: The could initiate the second conversation? Mark V. Meierhenry: They could-- John Paul Stevens: Even though they knew he hadn't consulted a lawyer. Mark V. Meierhenry: --Well, if he willingly did so. Miranda appeared to indicate to the average policeman that those rights are to be scrupulously observed. And, if the individual says I want to talk to my lawyer... Let's take our case. He freely talked to the authorities. So, it isn't a question... He talked to them and at the point he said, when he was asked if he would take a polygraph, because others had taken a polygraph, he had made no admissions at this point. He said I think I want to talk to Steve before I do that. Steve, referring to Steve Jergensen, his lawyer back in Sioux Falls, at which time the questioning stopped. Now, they knew he had talked to him on the telephone. He was probably never prevented, although the record would not reflect that, from making a telephone call. John Paul Stevens: And you are telling me it was the policy of your office, once that is done, you can go back in and question him again any time you want to? Mark V. Meierhenry: It is no longer. John Paul Stevens: Was it before Edwards? Mark V. Meierhenry: Well, it wasn't my office, but the policy was... I was a defense lawyer at that time... that if he was given his Miranda warnings, he knew them, he understood them, and he chose to speak, he could do that. He said, I don't want to talk any more-- John Paul Stevens: So, the request for a lawyer did not deter the prosecutor or the police from reinterrogating whenever they decided to by just giving the second set of warnings. That is the way you read Miranda. I mean, your office read Miranda. Mark V. Meierhenry: --At that time, when Stumes was there, I was defending Stumes, not prosecuting him. I can't speak what the rules were prior to 1978. What we are saying is-- John Paul Stevens: But your whole case depends on there having been a change in the rules and you say you don't know what the rules were before. Mark V. Meierhenry: --No, I am not saying I don't know what the rules were before. I am saying I don't know what the Attorney General of the state had decreed. I know what the law was and the law allowed authorities to not reinterrogate, but to go back and question whether he wished to talk some more. This was nothing like in Edwards where he was told he had to talk. You have in this case-- Thurgood Marshall: Will you tell me what in Miranda says you can go back over and over again? Mark V. Meierhenry: --I don't think Miranda teaches that, but Miranda-- Thurgood Marshall: I thought you just said that. Mark V. Meierhenry: --Miranda teaches that... When you say go back over and over, there is the illusion that there is an oppressiveness about this whole conversation and I would submit from the standpoint of every state in the union that if an individual says he doesn't want to talk, he should not be pressured into talking. That does not stop the authorities from going in an seeing if he now wishes to discuss this matter, because-- Speaker: Over and over again. Mark V. Meierhenry: --Well, again, it is a matter of degree. As you looked at in some of the progency of Miranda. Thurgood Marshall: Why did they drive him instead of flying him from town to town? Did they drive him for the purpose of talking to him? Mark V. Meierhenry: No. I think I would have to explain to you about South Dakota. First of all, we are one of the few-- Speaker: Because of airline service? Mark V. Meierhenry: --Well, it does, but to transport a prisoner today on commercial airlines is very difficult. It is not done very often, number one. It wasn't done in '73. You can't wear a gun on an airliner, you can't use handcuffs on an airliner, on and on and on. So, the normal way of doing things in the midwest is to drive and get them. Secondly, that there is cost. That would be changed today because we have purchased our own airplane, but it was the normal course of transportation, not only in South Dakota, but throughout the midwest. To drive over to Green Bay, which is only 500 miles... In South Dakota, we go 170 miles to go to District Court. It is not even unusual. Speaker: Or lunch. Mark V. Meierhenry: Or to lunch, yes. [Laughter] There are cases that we have tried and we don't even have a restaurant in the town we have tried the case in. Speaker: It is still a ten-hour drive. Mark V. Meierhenry: Yes. But, it is not unusual. In fact, until the-- Thurgood Marshall: I am not talking about unusual. I am just talking about to take a lot of time when a man is just constantly telling him about his Miranda rights and all, you know. Mark V. Meierhenry: --Well, I think if you look at the facts of this case, and I think Judge Nichol, who is a good jurist in our state, he found that that is not unusual. First of all, they talked about the Green Bay Packers which has nothing to do with crime. They talked about racing. This is normal to spend great hours of time in automobiles where we come from. It is not unusual at all. And, besides that, you are talking about an individual here that willingly talked at every stage which Miranda never stopped us from listening to people who wanted to tell us they killed others. Thurgood Marshall: Well, why did you keep giving him his Miranda warnings? Mark V. Meierhenry: Because that was-- Thurgood Marshall: Wait a minute. You said he just continued to talk on and on, right? Mark V. Meierhenry: --Yes. Thurgood Marshall: Well, why give him Miranda warnings over and over again? Mark V. Meierhenry: I think out of an abundance of caution. If you go back through the records of state court trials in South Dakota, you will find people that are simply witnesses, police officers given the Miranda warnings because they don't want to make a mistake. They don't want to go too far. They don't want to arrest a person, convict them, and then at a later date have him let go on appeal because of their mistake, because they didn't give a Miranda warning when they should, because they didn't figure out who initiated it, which is the new Edwards rule, which, to us, is absolutely new, not an extension of Miranda, adds an element of proof. If we are to sustain a conviction, we must prove that if he confesses as Stumes did here. There is no question about this man's guilt. It is a question of procedure of retroactive application of a rule. And, when a case like Edwards comes down, I have learned as Attorney General, we must immediately put it into effect, otherwise we will be right back here or my predecessor will, eight or ten years, not arguing about the guilt, not arguing about the trial being fair, arguing about who initiated the statements that lead to the confession. We think that this case is just like... not just like, very similar to Oregon versus Bradshaw in the sense that in that case a majority of this Court held that first we have to see who initiated the conversation and then, secondly, we have to show by a totality of the circumstances that it was a willing and knowing waiver. In this case, the Defendant himself says I wasn't being interrogated, there was just some conversation. Then he said, and this was immediately... during the conversation that is so crucial, he said I had to tell somebody, I had to get it out, and I wanted to talk. And, I see nothing in the Constitution that prevents an individual from confessing to a law enforcement officer. That is what happened here. And, as the law was at that time, under Miranda... Judge Nichol ruled under Miranda all of this was proper, all of this was admissible. The only thing that the Eighth Circuit, and I think it is important to note the times, Judge Nichol refers to the oral argument reported in Law Week of the Edwards case, but it was decided after Judge Nichol made his ruling at the District Court level and obviously the Eighth Circuit used it in making their decision. But, the Eighth Circuit, in applying the retroactivity, never had a discussion of how in this case it would ever help the truth-finding process to make it retroactive. Miranda itself was not retroactive. How does it help the truth-finding process to eliminate truthful statements from the trial? It is the same argument we made to this Court, South Dakota did in Nebel. How does it ever help the truth-finding process to retroactively exclude the truth? Now, if we... I will assume for my argument that we agree with the exclusionary rule as authority in South Dakota. Once the rule of Edwards came into effect May 18, 1981, of course, we must scrupulously follow it, as we followed Miranda in 1973 in Mr. Stumes' case, because if we have the right person, if the jury finds him guilty, we want it to be upheld. We don't want to lose because of ignorance or misguided statements taken from other people or-- Warren E. Burger: I notice that you don't say Innis against Rhode Island. You may recall that case. There the officers sitting in the front seat of the car engaged in a conversation which, although not directed at the accused, clearly prompted him to tell them where the gun and other incriminating evidence was to be found. Mark V. Meierhenry: --I have not referred to that Innis case or others because of the one question from the Court already, the assumption that these long drives in automobiles are somehow set up. You know, either to be the Christian Burial Speech or the Innis case where some little girl would be injured by the shotgun. Here there was no such statement. There was quiet. We have a nodding-off police officer, one looking out the window, and the other one driving. Warren E. Burger: In other words, you are saying this conduct of the police here is acceptable under Innis? Mark V. Meierhenry: I most certainly think so. To refrain... When they left Green Bay, Wisconsin, there was testimony about the death of Joyce Hoff. After that, it became an automobile trip of transporting a prisoner, proper, normal, usual under all of our practices. They stopped for lunch, they stopped for gasoline, and so forth along the way. It was only as the car approached Sioux Falls, some 60 to 90 miles away, that he blurted out or he began to blurt out what had occurred. He started sobbing out of the blue, no conversation, according to the Defendant himself for 10 or 15 minutes. He said, I don't know why anyone would want to kill Joyce Hoff, and started to make the statements. The officer said, why don't you get it off your chest? And, he then proceeded to do so. His next statement was I have been wanting to tell somebody about this. That is a knowing waiver. Later on Detective Green said, Norman, we are going to want a written statement when you get back and your lawyer probably won't let you give it. And, he says, in effect, I don't give a damn, I will talk to anybody I want to. He was aware of his rights. He was aware of his Miranda warnings. And, under the facts, should you hold this to be retroactive, which we most certainly don't think is a proper case at all for retroactivity, even under the facts, the Eighth Circuit was incorrect in holding that he did not knowingly and voluntarily waive his right to have an attorney present. Byron R. White: Well, Mr. Attorney General, do you challenge any part of the Court of Appeals' version of the facts? Mark V. Meierhenry: Yes, we do. Byron R. White: Well, do you expect us to... Why shouldn't we accept those? Mark V. Meierhenry: Well, I don't know if it is proper for me to argue. That was one of our questions on our Writ of Cert. It was not granted. But-- Byron R. White: Well, if that-- Mark V. Meierhenry: --I think that the District Court is the proper place to find the facts. Byron R. White: --Because you say... In your version here, you say after they got in the car nothing really happened relative to the murder until he started sobbing and yet your opposition says that the Respondent was advised of his Miranda rights and questioning began almost immediately. The purpose of the question was to elicit further incriminating statements from Respondent. Is that false? Mark V. Meierhenry: If that is your understanding, I mistated it. I said after he was put in the car he was questioned for 20 or 30 minutes. Then the rest-- Byron R. White: Wasn't the questioning aimed at eliciting incriminating statements? Mark V. Meierhenry: --Well, it went over the same subject matters that they had discussed the prior day and he was given his Miranda warnings. Byron R. White: But, he made no incriminating statements during that 20 minutes? Mark V. Meierhenry: No, none greater than he had the prior afternoon when he admitted to having intercourse with the dead girl and that the death was accidental. Byron R. White: That he was present. Mark V. Meierhenry: That he was present, yes, which is obviously an incriminating element. I have tried to give you-- Byron R. White: Well, suppose the statements the day before weren't admissible. Were these statements made in the car admitted in evidence also? Mark V. Meierhenry: --Yes. Byron R. White: They were, during this 20 minutes? Mark V. Meierhenry: Yes. And, the District Court found that there was a knowing, voluntary waiver and the District Court put out a full factor, which is repeated in the Eighth Circuit's decision. This was an experienced criminal. He knew what he was doing. He knew fully well what he was doing. And, I say in many cases they know what appellate courts will be looking for in the way they answer questions. We would urge this Court... And have a few moments for rebuttal... urge this Court to reverse the Eighth Circuit and simply affirm Judge Nichol's District Court appeal or District Court case in effect. Warren E. Burger: Mr. McGreevy? Timothy J. Mc Greevy: Mr. Chief Justice, and may it please the Court: I would like to start out, first of all, spending a few minutes going over the facts. I think that in some respects the facts have not been stated as I would like to have them stated at this point. I think it is important to bear in mind that while this case originated in 1973, the Miranda decision of this Court was, of course, handed down seven years, a full seven years prior to the facts that give rise to this case. And, I think that we need to bear in mind that while the ten years and two months that Mr. Stumes has been in prison is a long time, the 17 years since Miranda is even longer. We have a situation in this case where on September 17, 1973, the body of the victim is found. My client, Norman Stumes, is located in Green Bay, Wisconsin, ten days later. So, it is not a situation where a suspect is found immediately following an alleged crime and immediately confesses, thereby making further independent investigation by the authorities seem pointless. There was a period of time. The fact of the matter is that by the time these detectives got to Green Bay to question and transport Norm Stumes, they already knew they had a murder case. They had a pathologist who indicated that the cause of death and the other circumstances of death were such as to make it a homicide case. Warren E. Burger: Well, they knew they had a murder case as soon as they found the body, didn't they? Timothy J. Mc Greevy: Well, I suppose one could say, Mr. Chief Justice, that just by looking at the body you couldn't necessarily tell that it was a felonious or a criminal act. But, by the time-- Warren E. Burger: Perhaps I couldn't, but a physician could and did, did he not? Timothy J. Mc Greevy: --That is correct. Warren E. Burger: So, I don't get the point of this ten days that you are talking about. Timothy J. Mc Greevy: My point is that during the course of the ten days the authorities took hair samples from the victim, from the body of the victim, and from the apartment, from the shower of the apartment, from other areas of the apartment. They attempted to take, I believe, fingerprints. They took blood samples from the body of the victim. So they did a lot of things to attempt to establish their case and to put their case together. My point then was that by the time they went to Green Bay they had a prime suspect and that appears in the record, I believe, quite clearly. They also knew, of course, that Norm's mother... Yes, sir. Warren E. Burger: Well, you lose me. The point is, of course, they wouldn't go five or six hundred miles if they didn't think they were going to fetch a suspect. Timothy J. Mc Greevy: Well, I understood the Attorney General to argue that in cases where you have a confession that is secured very quickly, and I believe he inferred that occurred here, the police, in effect, have a disincentive to put together a case that is based on other than a confession. I was pointing out that that, I don't think, is the situation here. Warren E. Burger: Do you contend that the statements made when they were 60 to 90 miles away from Sioux Falls, as it was described and is described in the record, that he became emotional and said he wanted to get it out, do you challenge that? Timothy J. Mc Greevy: Do I challenge the admissibility of those statements? Warren E. Burger: Yes. Do you challenge that it occurred first? Timothy J. Mc Greevy: I must say that Mr. Stumes at trial testified that it never happened, that that is part of the record made at the trial. For the purposes of this appeal and for the purposes of the session here today, I think we have to assume the allegations of the police to have been true. It is-- Warren E. Burger: The jury verdict would suggest that they rejected his testimony and believed the officers, does it not? Timothy J. Mc Greevy: --I would say that that is correct. I think that before we get to that conversation in the car, Mr. Chief Justice, I think we need to back up to the first session of interrogation. That is the one that took place from around 9:30 in the morning to about 11:00 in the morning in the jail in Green Bay, Wisconsin. That interrogation was conducted primarily by a single officer, Green, Detective Green, as Mr. Meierhenry has indicated is now deceased. That interrogation was preceded by full explanation of Miranda rights. During that interrogation, Norm indicated that, yes, he knew the victim, but, no, he had not been to the victim's residence, he had not been in the victim's bedroom, he had not had intercourse with the victim. Towards the end of that session, Detective Green indicates that he wants to know whether Norm is willing to take a polygraph to clear himself as so many others had done. Norm indicated that he needed to talk to Steve, that he needed to talk to Steve before he answered that question, Steve being the attorney that-- Byron R. White: This particular question about the polygraph? Timothy J. Mc Greevy: --It was broader than that in the record. Byron R. White: Well, that isn't the way you stated it and it isn't the way the Court of Appeals put it nor the District Court. He just wanted to talk to a lawyer about that question about a polygraph. Timothy J. Mc Greevy: I believe in my brief in the citations to the transcript, I believe I refer to the fact that it was a broader request than merely in response to the polygraph question. Byron R. White: On what do you base that? Timothy J. Mc Greevy: Pardon me? Byron R. White: On what do you base that statement that it was a broader question than about the polygraph? Timothy J. Mc Greevy: I believe I base it on a transcript reference and I need to check that right now. Byron R. White: What did the District Court find? Timothy J. Mc Greevy: I believe the District-- Byron R. White: The Court of Appeals purported to rely on the District Court's findings for its statements. Timothy J. Mc Greevy: --The District Court and the Eighth Circuit, I believe, Mr. Justice, referred only to a request to talk to Steve prior to answering the polygraph question. Speaker: Yes. Timothy J. Mc Greevy: That is true. Byron R. White: How are we to understand the record any other way then? Timothy J. Mc Greevy: I guess the way I would approach that is to suggest that I don't think that the District Court or the Eighth Circuit necessarily alluded to every factual element that appears in the record. Byron R. White: Let me ask you this then. We can read the record. Let me ask you this. Suppose that it was perfectly clear that all he meant to say was I want to talk to my lawyer before I answer your question about the polygraph. Suppose that was it, the questioning stopped. Then do you think Edwards would prevent the lawyers from coming back and asking him about something else besides the polygraph? Timothy J. Mc Greevy: Mr. Justice, I believe that not only would Edwards-- Byron R. White: That can be a yes or no answer, can't it? Timothy J. Mc Greevy: --I think it can be a yes answer, but when you finish I might try and explain a little further. Byron R. White: Well, you say, yes. You say, yes, they would be prevented from coming back and asking any questions. Timothy J. Mc Greevy: Yes, sir. Byron R. White: I think you have to take that position. Why? Now tell me why. Timothy J. Mc Greevy: Thank you. My theory on this case has been that one need never even get to Edwards to properly decide this case. It seems to me that what Miranda says is that if a suspect indicates that he wants to remain silent questioning must cease. Thurgood Marshall: What in this case was it that he wanted to remain silent to use your words? Timothy J. Mc Greevy: Yes, sir. Thurgood Marshall: When did he say that? Timothy J. Mc Greevy: He didn't in those words. My point is-- Thurgood Marshall: Well, what words do you say he said that? Timothy J. Mc Greevy: --When he indicated that he wanted his attorney. To me, that is-- Thurgood Marshall: Well, suppose he said I want to see my attorney to find out what time of day it is? Would that be all right? Timothy J. Mc Greevy: --I think that is an unlikely comment for him to make being interrogated regarding a homicide. But, I suppose if that is what the testimony was, then we might not be here under these circumstances, but that is not what he was getting at and that is not the way the detectives interpreted it. Thurgood Marshall: But, is there anything in the record where he said... You agree that there is nothing in the record where he said hold off until I see my lawyer. Timothy J. Mc Greevy: Oh, there certainly is. Byron R. White: There is the next day but not on that day. That is what I am talking about, that day. Is there anything in the record where he said let's hold off until I talk to my lawyer or I am not going to tell you anything until I talk to my lawyer? Timothy J. Mc Greevy: If I might... I am not sure which of the Justices I should address at the moment, but-- Thurgood Marshall: Take your pick. Timothy J. Mc Greevy: --Okay. [Laughter] Byron R. White: Address us all. Timothy J. Mc Greevy: All right. A question was raised as to whether the request was a specific request only to talk to Steve before the polygraph question was answered. In the brief, we indicate that in the preliminary hearing transcript at page 49 and 50... and understand that that testimony at the preliminary hearing doesn't come from Norm Stumes, that comes from a detective. They indicated that Green in that first interrogation asked if he was responsible for the death of Joyce Hoff and to that Norman replied he would rather not answer until he talked to Steve. A moment or two later in the same interrogation, Green says do you want to clear yourself by taking a polygraph like everybody else has? "X number of people" is the term they used. And, he said he would like to talk to Steve before answering that question. So, two times in a period of apparently a minute or two there is a request for counsel. Then, what happened-- Thurgood Marshall: You said it was two hours a minute ago. Now you say two minutes. Didn't you say they questioned him for two hours that morning? Timothy J. Mc Greevy: --The first interrogation session, I think, was about one hour and 45 minutes. Thurgood Marshall: And, he said, as to two questions in that time, he said I want my lawyer. Timothy J. Mc Greevy: Those, I believe, the record would show-- Thurgood Marshall: Is that it? Is that all you have got? Have you got some more? Timothy J. Mc Greevy: --Yes, I sure... Yes, I do, Your Honor. Those two questions that I specifically mentioned occurred at the end of the hour and 45 minutes in this isolated interrogation with Norman Stumes and Green. Byron R. White: But he still said he wanted to talk to his lawyer before answering the question about the polygraph. Timothy J. Mc Greevy: And that he wanted to talk to his attorney before he answered whether he was involved in the death. Byron R. White: Well, that isn't what-- --Mr. McGreevy? Timothy J. Mc Greevy: Yes, sir. William H. Rehnquist: To take just a hypothetical case, kind of based on the circumstances that you have been describing, supposing that you have a defendant in custody like your friend Norm, as you refer to him, and he is being interrogated by the police, and there have been no Miranada violations up to that time, and then he is asked by one of the police, will you take a polygraph test to clear yourself and he replies, before answering the question about the polygraph test, I would like to talk to my attorney, and, the police then say, okay, we won't talk any more about the polygraph test, let's talk about where you were at the scene of the crime. Now, is there any sort of a violation by that question? Timothy J. Mc Greevy: Under the way I would interpret Miranda, I think that that is a violation. William H. Rehnquist: Miranda is mostly dicta, isn't it? Timothy J. Mc Greevy: Not the way I view it, I guess. William H. Rehnquist: Do you think all of those facts were presented to the case by the situation of the Arizona imprisonment out of which it arose? Timothy J. Mc Greevy: No, I am sure that is not the case. William H. Rehnquist: Then isn't it dicta? Timothy J. Mc Greevy: Perhaps in a technical sense it is, but I think that it expressed the opinion of the court at the time the decision was handed down. William H. Rehnquist: That is true of all dicta, isn't it? Timothy J. Mc Greevy: I think so, yes, sir. I wanted to get to the point of the second interrogation, because I think that may be key to our analysis. After this first interrogation of an hour and 45 minutes where we have denials, denials, denials, ending with two requests to talk to Steve, the detectives leave or I should say Green leaves. Later in that afternoon Detectives Green and Skadsen return to once again interrogate Stumes. There is no advice given regarding the Miranda rights, the constitutional rights, no advice of those rights at all. It is during the course of that interrogation... This is an interrogation that Judge Nichol found to have violated Miranda. There is no question about that. The District Court found this interrogation to violate Miranda. Warren E. Burger: That is not before us though, is it? Timothy J. Mc Greevy: No, but I think that it provides the linchpin to explain what happened the next day, Mr. Chief Justice, in my view. During that interrogation, according to the testimony of the officers, they got Mr. Stumes to admit that he had lied in the morning. They got him, according to their testimony, to admit that, yes, I had been there at the time in question, yes, I had been in the bedroom, yes, yes, we had had intercourse, and then at the end, again, without the benefit of Miranda, they asked the question... Green asked the question, was it accidental or intentional and to that Stumes replies accidental, according to the testimony. The way I see this situation, when the police had that, in effect, they had their case. They had gotten the man to acknowledge that he had lied in his previous answers. They now had him admitting that he was there. They got him admitting involvement in the death. Yes, he is claiming that it is accidental. But, they knew that the facts, the physical facts, belied any claim that the death was accidental. Warren E. Burger: Aren't all of these preliminary questions really merged into the final statement 60 to 90 miles from Sioux Falls? In other words, suppose nothing is admissible except that final statement. On the findings of the District Court and the verdict of the jury, that is the facts that we are bound to accept. Isn't that the state of facts? Timothy J. Mc Greevy: I am not positive that I follow that question. Warren E. Burger: When he got emotionally upset. Timothy J. Mc Greevy: Yes. Warren E. Burger: And said I want to tell you about this in words to that effect. Nobody has asked him any questions at that point. Timothy J. Mc Greevy: According to the record, not at that particular point in time. I think the record does show that the detectives started the long trip with fresh Miranda warnings, that they immediately interrogated, and that the record indicates that the interrogation continued intermittently during the long trip. But, it is true, I don't believe, anything in the record that indicates that there was an outstanding question regarding the interrogation at the time that Mr. Stumes made that-- Warren E. Burger: Aren't we obliged to accept as a fact that that was a spontaneous declaration by him? Timothy J. Mc Greevy: --I don't believe so. Warren E. Burger: Sixty to 90 miles away from Sioux Falls. Why not? Timothy J. Mc Greevy: Well-- Warren E. Burger: The jury rejected his testimony on it and accepted the police testimony on it and that is consistent with all of the independent fact findings of the District Judge? Timothy J. Mc Greevy: --The approach that we take on this case, of course, is that the jury ought not to have known of the... I will use your terminology... the spontaneous declaration that was made as the neared Sioux Falls, because, of course, it is our theory of this case that had it not been for the repeated efforts by the police to interrogate absent counsel, and if it had not been for the authorities' interrogation the afternoon before without even benefit of Miranda, that we would never have reached the point where we could have this spontaneous declaration, again, to use your terms, Mr. Chief Justice, occur. So, we really fashion an argument, I think, that builds one step at a time to reach that final conclusion. Incidentally-- William H. Rehnquist: But, Mr. McGreevy, that is basically a factual conclusion, isn't it, whether something that had happened the previous afternoon did or did not motivate the Defendant in this case to make what the Chief has described as a spontaneous statement? What are the findings of the District or the Court of Appeals on that particular issue if there are any findings? We shouldn't be speculating here whether one thing, in fact, caused another. Timothy J. Mc Greevy: --I can see the problem that you would have with that. Insofar as whether either of the courts below made findings on that specific issue, I don't think directly that I can recall... the District Court, as I indicated, found the interrogation in the afternoon to have violated the principles of Miranda, but had, for reasons that I never have been able to understand, held that that was harmless. I have to analogize or contrast that, I should say, to what the Eighth Circuit did when they looked at this case. The Eighth Circuit looked not only at the interrogation in the automobile, but they also looked at the statements attributed to Mr. Stumes upon arriving at the jail in Sioux Falls. Counsel for the state has made reference to the fact that according to the detective's testimony Mr. Stumes asked the detective to come back and it is then that he is supposed to have said, tell them I am not a vicious killer. I believe the Eighth Circuit took the view, for instance, looking at that-- Byron R. White: He also said I didn't mean to kill her. Timothy J. Mc Greevy: --That is the other one you were trying to get at. I couldn't recall it either. Byron R. White: I wouldn't blame you. Timothy J. Mc Greevy: Okay. The point I was trying to make then, Justice Rehnquist, was that just as the Eighth Circuit saw that final incriminating statement as having flowed from the interrogation in the car, I think it is reasonable to presume that-- William H. Rehnquist: When you say 90 miles east of Sioux Falls were not the result of interrogation. Are you saying that the Eighth Circuit found the statement in Sioux Falls as a result of interrogation early in the morning? Timothy J. Mc Greevy: --It is my understanding that the Eighth Circuit found that the interrogation which took place in the car violated-- William H. Rehnquist: Then when did interrogation take place in the car under your view of the record. Timothy J. Mc Greevy: --Interrogation took place in the car intermittently throughout the day according to the record. It was intensive at the beginning according to the record. Then, from that point forward, maybe half an hour into the trip, according to the record it is intermittent. Now, I realize that is perhaps not the clearest record we would like to have, but that is what we have as a record, intermittent questioning. Then Mr. Stumes is alleged to have said taking a human life is so useless or words to that effect. Immediately that was followed by interrogation. There is no question about that. And, I don't believe that the state would contend otherwise. There was vigorous interrogation that then took place. William H. Rehnquist: Of course, that would quite naturally and I think properly prompt interrogation, couldn't it? If someone... a defendant out of clear blue sky said taking a human life is so useless. Timothy J. Mc Greevy: Well-- William H. Rehnquist: I mean, that is not talking about the Green Bay Packers. Timothy J. Mc Greevy: --I have difficulty accepting the terminology out of the clear blue sky, because I think this entire episode needs to be seen in the context of what it really was. I think the whole scenario was an effort to elicit incriminating statements and it lasted not just a few minutes, but it lasted really a day and a half. Byron R. White: Suppose we disagreed with you that the second interrogation on the first day was improper and, therefore, the interrogation for the first half hour of the second day was proper. Suppose that we agree to that. If there hadn't been any prior interrogation at all, no prior claim of counsel at all, the interrogation in the automobile for the first half hour would have been perfectly all right after Miranda warnings. Timothy J. Mc Greevy: The first half hour in the automobile under all of those various facts that you would suggest or assumptions, I would say, yes. But, of course-- Byron R. White: Well, I know, but suppose we disagree with you that there was nothing wrong with anything that happened on the first day? Timothy J. Mc Greevy: --All right. Byron R. White: Then I would think the first half hour of interrogation was quite proper the second day. Timothy J. Mc Greevy: Well, I don't agree, because the first day ended with a third request for counsel made that same day. Byron R. White: At the end of... At the very end. Timothy J. Mc Greevy: At the end of the second interrogation which is at the end of the first day. Byron R. White: Okay. Timothy J. Mc Greevy: This is the interrogation that had no Miranda rights. Byron R. White: All right. Timothy J. Mc Greevy: That one concludes with a very clear request. Speaker: Right. Timothy J. Mc Greevy: You will recall we mentioned earlier that according to the evidence Mr. Stumes is alleged to have said that the death was accidental. He then goes on to indicate that he is not going to talk about it any more until he sees Steve, his attorney. Lewis F. Powell, Jr.: Mr. McGreevy, have you finished answering Justice White? Timothy J. Mc Greevy: I think I have. Lewis F. Powell, Jr.: What I would like to ask is whether this Court has ever held before Edwards that once a defendant has requested the right to see counsel that the only subsequent event that would enable law enforcement to continue any discussions with him whatever was when the defendant himself initiated that discussion? Prior to Edwards have we ever held that before? Timothy J. Mc Greevy: Well, I may run into trouble with you, Mr. Justice, or perhaps one of your colleagues making a distinction between-- Lewis F. Powell, Jr.: Just cite the case. Timothy J. Mc Greevy: --Pardon me. Lewis F. Powell, Jr.: Just cite the case in which we held that. Timothy J. Mc Greevy: Well, the problem I was having was between dicta and holding and I don't believe that I can tell you or that I can refer to a holding if you wish to use that particular term. Lewis F. Powell, Jr.: Did Edwards cite any prior cases which we-- Timothy J. Mc Greevy: Well, certainly. Edwards, of course-- Lewis F. Powell, Jr.: --Did it cite any prior cases? Timothy J. Mc Greevy: --Yes. Lewis F. Powell, Jr.: Which one? Timothy J. Mc Greevy: Miranda. Lewis F. Powell, Jr.: Miranda? Timothy J. Mc Greevy: That is the key. Lewis F. Powell, Jr.: Did Miranda hold that? Timothy J. Mc Greevy: I think Miranda... My whole theory has been that we need never get to Edwards because Miranda says when counsel is requested, the police officers must stop questioning. Lewis F. Powell, Jr.: Yes. Timothy J. Mc Greevy: They even went on in Miranda to explain what the alternatives are that are available to the police. They say in Miranda you don't need to have a jailhouse lawyer available or a policehouse lawyer available because you can make a decision that you are not going to get an attorney there right away, but just remember you can't interrogate until you do it. Lewis F. Powell, Jr.: May I ask this? Did Miranda overrule Zerbst? It said you may waive almost any constitutional right. You can certainly waive the right to have counsel when you are being interrogated. And, Zerbst said that you look to all of the facts and circumstances. Was that overruled in Miranda? Timothy J. Mc Greevy: I don't believe so. I believe that Miranda still permits a waiver, but I see Miranda as saying really... I think there are two kinds of waivers or a waiver at two levels that can take place. When a suspect is advised of his rights, you have a right to have an attorney present, the suspect can at that time make a knowing, intelligent, voluntary waiver of that right and say, no, I don't want an attorney, I will talk to you. That is a waiver. You get a different waiver question, I really think, when that suspect has said I need my attorney. Then he has, in effect, said I can't deal with you without help. Lewis F. Powell, Jr.: Is there any case prior to Edwards that said that? The answer is no. You haven't been able to cite one. Timothy J. Mc Greevy: I think that Miranda does, but I don't think I can say that it is holding in the strict sense of the word. But, I think clearly-- Lewis F. Powell, Jr.: Do you think Miranda modified Zerbst? It didn't say so. Timothy J. Mc Greevy: --Well, I-- Lewis F. Powell, Jr.: Zerbst has been cited any number of times since. Timothy J. Mc Greevy: --I am not sure how to respond to that. The point that I wish to make with respect to Miranda is that... and I need to address just for a moment the retroactivity question if we ever reach that, if the Court reaches that question. It seems to me that if we view Edwards as establishing a new principle, then it seems to me it was abundantly foreshadowed by Miranda, because Miranda said when they ask for counsel you quit questioning. And, I think all Edwards did was reinforce that, give life to it, give vitality to it, and tell the authorities that you will abide, you will abide by that request. So, that is the way I view it. By way of conclusion, we do respectfully request on behalf of our client that the judgment of the Eighth Circuit in this matter be affirmed. If there are no further questions, I have concluded my argument. Thank you. Warren E. Burger: Very well, Mr. McGreevy. Do you have anything further, Mr. Meierhenry? Mark V. Meierhenry: Very briefly, Your Honor. As most courts are wont to do, most of the argument today had to do with how to apply Edwards retroactively and, of course, it is our strenuous objection, and I only rise to remind the Court that under the prior rules and teachings of this Court this is not an appropriate case to apply retroactively. And, if it is not a proper case and you agree with the state, then obviously the Eighth Circuit must be reversed because it most certainly was proper under Miranda and any other case until the new Edwards rule was adopted in 1981. John Paul Stevens: May I ask you, do you read the Edwards opinion itself as purporting to announce a new rule? I have in mind specifically the sentence quoted on page 11 of your opponent's brief. "We reconfirm these views, and to lend them substance. " we do so and so after quoting from Miranda. Mark V. Meierhenry: I believe it is a new rule. I know we-- John Paul Stevens: That isn't my question. Do you think the opinion in Edwards purported to announce a new rule? Mark V. Meierhenry: --I believe it did. John Paul Stevens: Is there language in the opinion that purports to adopt a new rule? Why would they say "we reconfirm these views"? That is purporting to announce a new rule? Mark V. Meierhenry: I believe since then that other members of the Court have looked at it... not of this Court but of other courts have looked at it as a new per se rule. It was certainly a new rule as far as those of us who must implement the decisions are concerned, absolutely new, and, therefore, I think it is a new rule and it should be given retroactive effect, because if it is not a new rule, then nothing should be reversed that happened in 1973. Thank you very much. Warren E. Burger: Thank you, gentlemen, the case is submitted.

John G. Roberts, Jr.: This morning we will hear argument in Case 19-177, United States Agency for International Development versus the Alliance for Open Society International. I note at the outset that Justice Kagan is recused in this case. Mr. Michel. Christopher G. Michel: Mr. Chief Justice, and may it please the Court: Twenty years ago, the HIV/AIDS pandemic was devastating the world. In response, President Bush proposed and Congress adopted the Leadership Act. Since reauthorized three times, the Act has committed nearly 80 billion dollars to global AIDS relief, and it has worked, saving more than 17 million lives in the most successful American foreign aid effort since the Marshall Plan. The funding condition at issue here requires recipients to have a policy opposing prostitution and sex trafficking, which Congress found are coercive practices that spread HIV/AIDS and degrade women and girls. This Court held that applying that condition to Respondents' domestic entities violates the unconstitutional conditions doctrine. But Respondents sought more, and the question now is whether the condition can still be applied to foreign grant recipients operating abroad. It can for two straightforward reasons. Foreign entities lack constitutional rights, so they cannot bring an unconstitutional conditions claim, and neither can Respondents because they are not subject to the funding condition. Thanks to their victory in this Court, Respondents can accept and use funds without any compelled speech. To be sure, Respondents can choose to affiliate with foreign entities that must comply with the policy condition, but any effect on Respondents' message is now a product of their own choice, not government compulsion. Respondents' contrary view is startling. They would allow U.S. non-profits to export constitutional rights to legally separate foreign entities abroad simply because they share similar brands. That novel theory has no basis in this Court's prior decision, it could undermine long-standing regulations of foreign speech, and it has no practical justification. For 17 years, foreign recipients have adhered to the policy condition without harming the AIDS relief program or Respondents' speech. This Court afforded Respondents all the relief they deserve. The decision below should be reversed. John G. Roberts, Jr.: Counsel, one thing that I think is not clear from the record is the precise relationship between the domestic entity and its foreign affiliates. We -- we know that there are no formal corporate ties but that these entities share the same name, the same logo, the same brand. What -- what would you require beyond that before attributing the speech of the foreign entity to the domestic one? Christopher G. Michel: Mr. Chief Justice, you're correct that the record is not particularly thorough on that issue, despite 15 years of litigation on -- on this matter. The district court ultimately entered the injunction it issued here based simply on -- on letter briefing. But our position is that the formal distinction between the two entities, the -- the U.S. entity and the foreign entity, is all that is required to attach separate legal rights. Of course, it's important to note the Respondents and the foreign entities that they claim as affiliates made the choice to be separate legal entities. That choice, of course, has certain benefits for them, such as shielding them from liability, but it also has -- John G. Roberts, Jr.: Is it -- Christopher G. Michel: -- certain perks. John G. Roberts, Jr.: -- is it reasonable to insist on formal corporate ties in this -- in this context? I gather that it's undisputed that to be effective in many of the foreign countries involved here, you have to operate through a foreign entity, that the -- the effort would not be as effective if the American entity were the one actually on the ground in the foreign country. Christopher G. Michel: Well, two points on that, Mr. Chief Justice. First, I think that that is not true as a uniform matter. Many of the Respondents, the U.S. entities do, in fact, operate in foreign countries through branch offices, and, as a result of this Court's prior decision, they always have a choice to operate in that way without compromising their speech in any way. They are, in other words, completely in charge of their own message while also accepting Leadership Act funds. And -- and to take your second point, if they make the choice to operate through a foreign entity because they decide that that is more convenient or more effective, they have to accept the bitter with the sweet, to be sure, operating through a distinct legal entity, but they're not without recourse. They can, for example, explain that the policy statement being issued by the foreign entity doesn't reflect their own views. Their free speech allows them to do that. And I -- and I would note as -- John G. Roberts, Jr.: But, presumably -- presumably, it does reflect their own views. You know, they have the same name, the same logo, the same brand. And I wonder if it makes more sense to think of the foreign entity as simply another channel for the domestic entity's speech. Christopher G. Michel: Mr. Chief Justice, with respect, I don't -- I don't think it does. And I think, you know, when that was the only option available, as it was in the Court's decision last time, I can understand, of course, why the Court decided the case the way it did. But now that Respondents have a separate choice, in fact, the very choice that they were fighting for last time, any consequences of the choice to operate as separate entities is a result of their own decisions. And -- and I -- I -- John G. Roberts, Jr.: Thank you -- Christopher G. Michel: -- wanted to note -- John G. Roberts, Jr.: -- thank you. Thank you, counsel. Justice Thomas? Clarence Thomas: Mr. Michel, the Respondent seems to argue that your guidelines on -- your affiliate guidelines actually support their argument. What do you think of that? Christopher G. Michel: Justice Thomas, I -- I don't think that they do as -- as an initial matter and, even if they did, I think that would, at most, be a basis for challenging the guidelines, not -- not the constitutionality of the statute. And to start with the first point, the guidelines, which are reproduced at -- at pages 1A through 3A of our reply brief, simply provide that an entity can affiliate with a separate entity that has a different policy on prostitution and sex trafficking if it meets certain requirements, and -- and there are five non-exhaustive requirements spelled out there. Four of those would generally be satisfied by an entity that has legal separation. So I think it would be a rare circumstance that these regulations would ever result in the denial of funding to a foreign affiliate. And -- and to make one related point, Respondents themselves are no longer subject to the policy requirement as a result of their prior decision in this case. So, if they run afoul of these regulations, which simply interpret what it means to have a policy opposing prostitution and sex trafficking, these regulations can't be a mechanism for depriving the Respondents themselves of funds. Clarence Thomas: When this case was here last, I seem to remember it was about the domestic organization. The -- what has changed since it was here? The -- there was very little talk. The only time that affiliates actually came up was as an alternative to the enforcement procedures that were being used toward the domestic organizations then. So what has changed since this case was here last? Christopher G. Michel: Well, Justice Thomas, you're exactly right. That was all that was at issue last time. And the only thing that has changed is that Respondents have asked for broader relief. And although, you know, we fully accept the Court's prior decision, we -- we -- we submit that Respondents are simply not entitled to any further relief. As you suggest, there's nothing in this Court's decision that contemplates or suggests applying the -- the prohibition on applying the policy requirement to foreign entities overseas, so I think the Court ought to simply analyze the claim under first principles. And, as I said at the outset, I think two simple principles resolve the case. Respondents themselves are not subject to a funding condition, so they can't have an unconstitutional conditions claim, and the foreign entities that are subject to the funding condition have no constitutional rights, so they can't have an unconstitutional condition claim either. We do think that what Respondents are asking for is -- is unjustifiably bootstrapping this Court's prior decision into global relief, and we simply don't think there's any basis for that. Clarence Thomas: Thank you. John G. Roberts, Jr.: Justice Ginsburg? Ruth Bader Ginsburg: Mr. Michel, I have two questions. The first is that the statute exempts certain non-domestic entities from the requirement to adopt an anti-prostitution policy, and those are the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, International AIDS Vaccine Initiative, and any U.N. agency. What is the reason for the exemption? Why are these organizations exempt and not the organizations at issue here? Christopher G. Michel: Justice Ginsburg, I think there are a few reasons for that. Those are in the main international organizations that are composed of their own separate sovereigns, and so I think it makes sense that Congress would have wanted to respect the sovereignty of the members of those organizations in a way that doesn't, of course, apply to non-profit organizations receiving funds at issue here. The -- the vaccine organization that you mentioned as well seems to be particularly unlikely to -- to bring into play the considerations that motivated Congress to require the anti-prostitution and sex trafficking pledge because they're not operating in the field. They're simply doing research on -- on vaccines. But I don't take -- Ruth Bader Ginsburg: It -- it seems to me that these organizations are doing the same thing. But let me ask you my second question, and it is: May a pledge taker -- say you're right and these foreign entities have to take the pledge -- may they nonetheless work with prostitutes to encourage the prostitutes to take preventative measures that will advance control of AIDS? Christopher G. Michel: The answer to that question -- Ruth Bader Ginsburg: Can they do that? Can they take -- they say, all right, we'll take the pledge, but we're going to work with prostitutes, make sure that they use preventative devices? Christopher G. Michel: Absolutely they can, Justice Ginsburg, and we encourage that. That goes back to a point I was going to make earlier, which is the -- the pledge that's required by the statute only requires one affirmative speech act, and that is submitting to USAID with the grant agreement a -- a policy opposing prostitution and sex trafficking. But there's no requirement that foreign entities that make that -- that make that pledge shout it from the mountaintops or get into anybody's face about it. They are completely free to, and encouraged to, work with prostitutes and victims of sex trafficking to prevent HIV/AIDS. And -- and, indeed, you know, one of the reasons for including this requirement in the statute and many other provisions of the statute dealing with prostitution and sex trafficking is that Congress recognized that women who -- who are often coerced into those practices are themselves at heightened risks of contracting the disease, of spreading the disease, and -- and, of course, of -- of losing other opportunities in their lives. So we certainly encourage groups to do that kind of work, and it's not at all in tension with the -- with the policy requirement. I would also note the -- the amicus brief filed in this Court's case last time by the Coalition Against Trafficking at Women, which made the point that many prostitutes and victims of sex trafficking are themselves opposed to prostitution and sex trafficking and so wouldn't take offense at the statement that the groups have to make. John G. Roberts, Jr.: Thank you, counsel. Christopher G. Michel: But in any event -- John G. Roberts, Jr.: Thank you, counsel. Justice Breyer? Stephen G. Breyer: Just following up on that question, some would. Some would take offense. And it's -- in the last case, you said that this -- we said, this Court said, this organization, which takes money from the government and uses it to fight AIDS, goes to prostitutes as part of their effort and says use safety. And that's one way of helping to fight And if at the same time they have to say, we're against prostitution, we don't like it, we're against it, it's terrible, well, the prostitutes will think they're hypocrites or maybe worse and will be suspicious. That was their reasoning last time. Now how does that change one iota in terms of their rights, which we said they had, the major organizations in the United States have, the right to do, how does that change one iota if, instead of sending their own worker there, they give the money to a foreign worker in India who is associated with them and that foreign worker goes and she says exactly the same thing to the prostitutes? Since the foreign workers are identified by name, mission, logo, with the domestic workers, how does it interfere one whit less if we accept your argument? They will be seen, domestic, as well as the foreign ones, as hypocrites or, worse, interfering with their mission. If we accepted that argument before, why don't we accept it now? Christopher G. Michel: Well, a couple of quick responses, Justice Breyer. I -- I don't think that the Court did base its prior decision on that particular concern. I think it based its decision on the First Amendment rights of the U.S. entities that were receiving the funds. And so the principal difference between the case last time and the case this time is not that the entities are interacting in -- with prostitutes in any different manner. It's that the entities that are now subject to the funding condition lack constitutional rights under deeply established -- you know, the deeply established principle that foreign entities abroad don't exercise constitutional rights and, therefore, can be subject to greater speech restrictions than U.S. entities at home. Now I do want to reiterate that I think the concerns you have raised, while legitimate, are -- are -- are not borne out in practice because the policy requirement, whether applied in the past to domestic groups or now to foreign groups, does not require them to tell prostitutes that they oppose prostitution or to do anything affirmative beyond agreeing to be opposed to prostitution and sex trafficking in the letter. And we're fortunate to have a 17-year track record to look at here. The foreign entities have, from the very beginning and even recently under stays of the -- of the district court's injunction in this phase of the litigation, been subject to the policy requirement throughout that period. And as Judge Straub noted in his dissent below, they have not identified even one example of -- of anybody perceiving hypocrisy in their message or of -- of setting back their -- their work to fight HIV/AIDS, which, of course, has been historically effective. John G. Roberts, Jr.: Thank you. Thank you, counsel. Justice Alito? Samuel A. Alito, Jr.: Counsel, as I understand the government's position, it depends on whether the foreign entity that ultimately gets the legal -- the Leadership Act funds is a separate legal entity or legally distinct from the U.S. entity. Is that correct? Christopher G. Michel: Yeah, it depends -- what we look at is whether the recipient of the funds, the entity subject to the condition, has First Amendment rights or not, and we think that turns on whether they're a U.S. entity or a foreign entity. Samuel A. Alito, Jr.: All right. So what do you understand to be the meaning of "legally separate" or "legally distinct"? And how would that apply where the U.S. entity is a non-profit corporation, a trust, or an unincorporated association, if there are any of those, and in the situation where the foreign entity is organized in one of those ways? Christopher G. Michel: So the sort of difficult questions about how -- how to parse incorporation have really not arisen in this case because I think Respondents and the foreign entities at issue are clearly legally separate in the way that matters for the funding program, which is to say they've applied separately for different grants. And so the easiest way to answer the question, I think, is that when a U.S. entity applies for a grant as its own entity, it's not subject to the policy requirement. When a foreign entity applies for a separate grant, distinct from any affiliation it might have with a U.S. entity, then it is subject to the policy requirement. And the foreign -- Samuel A. Alito, Jr.: So the U.S. entity gets the money and the U.S. entity wants to make a sub-grant to a foreign entity, and as I understood your -- your position, whether or not the foreign entity can be required to endorse the policy depends on whether it's legally distinct from the U.S. entity. Is that correct? Christopher G. Michel: That -- that is correct. So, in that sub-grant relationship, the condition would then attach to the foreign entity as the sub-grantee of the U.S. entity. Samuel A. Alito, Jr.: All right. Well, so, if the U.S. entity is a trust, what -- what -- what -- how would we determine what is legally separate from -- what foreign entity is legally separate from a trust, a U.S. trust? Christopher G. Michel: I have to confess, Justice Alito, we haven't confronted the trust question, so -- so I don't have a ready answer for that. I -- I think that in the 17-year history of the program, though, that there really hasn't been any difficulty in telling apart foreign -- foreign organizations from -- from domestic organizations. You know, we're happy to take a further look at the -- at the trust hypothetical, but it's one that just hasn't arisen. Samuel A. Alito, Jr.: Well, is that because, until recently, the government's test was not legal separation -- was not whether it was a legally separate entity but a multifactor test under the regulation to which Justice Thomas referred? Christopher G. Michel: No, with respect, Justice Alito, that -- that's not and -- and hasn't been our position. From -- from the outset, the government has applied the policy requirement to foreign entities abroad, and it turns out, as a result of -- of injunctions, for almost that entire period, the government has not applied the policy requirement to -- to domestic entities. The regulations -- John G. Roberts, Jr.: Thank you, counsel. Justice Sotomayor? Justice Sotomayor? Sonia Sotomayor: I'm sorry, Chief. Did it again. Mr. Michel, the long and the short of this is that a domestic agency that does not want to adopt a policy of being opposed to abortion but who is willing to not support it in a program, they can't receive funds unless they affiliate with someone who will make the statement for them, correct? Christopher G. Michel: I -- I don't think so, Justice Sotomayor. A U.S. entity that opposes prostitution and sex trafficking, which is the only requirement at issue in this case, can still receive funds as a result of this Court's prior decision, and they can use those funds abroad without contracting or -- or otherwise working through affiliates. Sonia Sotomayor: But the domestic corporation who doesn't want to speak the government's message but does want to do the program can't, unless it finds a affiliate who will speak the government's message? Christopher G. Michel: Well, with respect, Justice Sotomayor, that -- I think that was the issue in the case last time. But -- Sonia Sotomayor: Exactly. Christopher G. Michel: -- that's no longer true. Yeah. Sonia Sotomayor: Exactly. And the last time when you sought for cert before us, you said it was a facial -- it was tantamount or amounting to a facial challenge. If we read our prior decision as basically facially addressing the restriction, do you win? Christopher G. Michel: I think if you read it as truly facially invalidating the statute, then, no, we couldn't win. But for the reason -- Sonia Sotomayor: All right. Then I move on to another question. Christopher G. Michel: Of course. Sonia Sotomayor: In Hobby Lobby, we recognized that a closely held corporation at least could be viewed as expressing the religious beliefs of its owner, a person independent legally. In Hurley, we said that parade organizers could be identified by the people who marched in their parade. And, similarly, in Regan, we said that an entity could speak through an affiliate who would be recognized as itself because it could then do lobbying that Regan couldn't do under the government program. So these cases seem to suggest to me that at least in the First Amendment context, let's put aside any other context, but in the First Amendment context, we are less concerned with corporate formalities than we are with imputation or perception. And to the extent that these corporations are closely affiliated, and presuming -- I know you said before that you don't think there's enough in the record; we can deal with that separately -- but presuming that the public does perceive these entities as one, then why wouldn't the First Amendment apply to the inability of the domestic corporations to receive funds and partner with a closely affiliated foreign entity in implementing the program? Christopher G. Michel: Justice Sotomayor, a couple of points. I think Hurley and some of the other cases you cited all depend on the predicate of a forced affiliation between -- between the two groups. In Hurley, it was the parade organizers and -- and the group that wanted to join the parade. Here, however -- and this is a response, I think, to the last part of your question -- no one is forcing the domestic entity to affiliate with a foreign entity. The domestic entity has a choice to take the money and use it itself, and any hypocrisy or disturbance to its message that results is a result of its own choice to affiliate with a group that -- a foreign entity that accepts Leadership Act funds and must make the statement. So they're simply not being forced to affiliate with anyone in the way that was at issue in those cases you cited. John G. Roberts, Jr.: Thank you, counsel. Justice Gorsuch? Neil Gorsuch: Counsel, I'd like to just follow up on that for a moment. You -- you seem to rely pretty heavily on legal separation. But the First Amendment, it's not clear to me why that -- that -- that cares, as opposed to imputation and in Hurley, as Justice Sotomayor pointed out. Can you speak to that a little bit further for me, please? Christopher G. Michel: Sure. I think that the critical point, as -- as I said to file -- the reason to file a corporate separation here is that that's how the grant program is organized. And -- and this Court, you're right in Hurley where there was a forced -- a forced association, the Court held that attribution matters. But, in every one of the Court's funding condition cases, the Court has looked to the effect on the recipient of the funds itself. And, here, Respondents and the foreign entities are making a conscious choice to apply for separate grants as separate entities and to be subject to separate conditions. Neil Gorsuch: I think the argument is a little -- goes a little bit beyond the forced nature of -- of the association to the concern about chilling of speech. Can you speak to that? The First Amendment doesn't care just about protecting speech. It also is concerned about avoiding chilling of speech. Christopher G. Michel: I think that -- I think you're -- you're, of course, right about that, but I simply don't see any chilling of speech here, given that, as a result of this Court's prior decision, the domestic entities are free to take the money and -- and use it themselves in charge of their own message. And they're also free to make a different choice, which is to work through a foreign affiliate that, as a result of Respondents' own choice, will have to make the policy statement opposing prostitution and sex trafficking. But, even in that instance, Respondents are still free to use their own speech rights to explain that -- that they don't share the views of the foreign affiliate on prostitution and sex trafficking. I -- I think, ultimately, what Respondents are asking for is a sort of right to optimal message management, which is simply not what the First Amendment protects. If you look at cases like Rumsfeld versus FAIR, the Court explained that the law schools in that case might well be concerned about misattribution of their position on -- on letting military recruiters onto campus, and yet that concern alone was not a reason to find an unconstitutional conditions violation. And -- and likewise, in the Court's other funding cases, like Rust, for example, and Regan, the entities were ultimately not allowed to operate in their preferred manner. The -- the abortion providers, for instance, in Rust, you know, certainly didn't want to have to separate their speech in the way that they did, but the Court found that it was constitutionally permissible for Congress and -- and the Executive Branch to require them to separate that speech because they still had an open channel to express their First Amendment views. And after this Court's prior decision, Respondents clearly have an open channel to -- to express their views without chilling and without having to give up the money. Neil Gorsuch: Thank you. John G. Roberts, Jr.: Thank you, counsel. Justice Kavanaugh? Brett M. Kavanaugh: Thank you, Chief Justice. Good morning, Mr. Michel. I'm interested in the implications of our decision in this case. In particular, if the government were to lose this case, would any other programs or statutes be invalidated or called into question by such a decision? Christopher G. Michel: Well, Justice Kavanaugh, I think that there would be real concerns about that. Of course, I'm not here to give up any other statutes, but I do think the gravamen of Respondents' position is that they and their foreign entities that they've chosen to keep separate should somehow be treated as some kind of single global unified entity. And if that is the theory that they're operating under, I do think it would call into question a number of different statutory and administrative regulations of foreign speech that like -- that likely couldn't be applied domestically. For example, Congress has long banned campaign contributions in U.S. elections by foreign entities. But Congress, of course, could not ban such contributions by U.S. entities. Yet, if a U.S. entity were able to say that it shares or confers on a foreign affiliate its First Amendment rights, it might well claim a basis for challenging the -- that ban on -- on foreign speech. And -- and there are many other examples that we cite in our brief as well. It's, in fact, commonplace for Congress and the Executive Branch to condition foreign aid to entities abroad on certain policy objectives, such as opposing terrorism or supporting women's rights or opposing apartheid or, in the case of the Mexico City policy, taking certain positions on abortion. And those content-based/ viewpoint-based speech restrictions might not be permissible in the United States. And domestic entities who were able to confer or -- or, you know, unite with their foreign bodies, with foreign entities to challenge those, would, I think, create considerable risk of disturbing long-settled -- long-settled laws. Brett M. Kavanaugh: One other question. Has the program with respect to U.S. domestic organizations suffered any problems or been any less successful since this Court's decision in 2013 as far as you're aware? Christopher G. Michel: Not at all. The program, with respect to both domestic and foreign recipients of funds, has, as I said at the outset, truly been one of the historic successes in -- you know, in the history of U.S. foreign aid. And I think, you know, we do have sort of the controlled experiment over the last 15 years as a result of injunctions in the first case and stays of the injunction in this case that the current status quo, whereby U.S. entities are not subject to the policy requirement, but foreign entities are subject to the policy requirement, has been the background law in place for about 15 years. And that has neither set back the extraordinary success of the program, nor created, as Judge Straub noted in his -- in his powerful dissent, any actual evidence of hypocrisy or confusion of message for Respondents themselves. John G. Roberts, Jr.: Mr. Michel, take a minute to wrap up, please. Christopher G. Michel: Thank you, Mr. Chief Justice. I -- I do think this case ultimately in -- in its current iteration can be resolved on -- on a straightforward basis that Respondents themselves long accepted, and that's that the policy condition is a permissible exercise of Congress's core spending power as applied to foreign recipients that lack First Amendment rights but not as to domestic recipients that have First Amendment rights. And although Respondents have -- have broadened their position, they had it right the first time, and nothing supports the bootstrapping that they have requested. John G. Roberts, Jr.: Thank you, counsel. Mr. Bowker. David W. Bowker: Mr. Chief Justice, and may it please the Court: The undisputed record shows that the U.S. Respondents themselves suffer First Amendment harms when the policy requirement is imposed on their foreign affiliate. Respondents and their affiliates share a name, brand, logo, mission, and voice. They speak as one, make speech and policy decisions together, and are indistinguishable to the public. As a result, the First Amendment rights of U.S. Respondents are violated here in two ways: first by a speech compulsion that is attributed to them. When CARE in Kenya takes the pledge, its affirmation of belief is attributed to CARE in the United States, thus putting words in the mouth of the U.S. entity. The second violation is from a speech restriction. Under regulations that prohibit any CARE entity from contradicting the pledge, even on its own time and dime, thus making it impossible for CARE U.S. to disavow CARE Kenya's pledge without engaging in doublespeak and losing U.S. funding for its global network. The government says the burden is on Respondents to avoid such harm by applying for funding themselves, severing their connections to affiliates, or disavowing the pledge. But this has it backward. When a statute violates the First Amendment, the burden is on the government, not the speaker, to give First Amendment freedoms the necessary breathing space. Plus, the government's proposals all fail in practice. Asking Respondents to apply for funds ignores that they must work through local affiliates in places where local laws or the U.S. government's own funding criteria require it. Severing ties with affiliates would destroy their organization. Posing such a choice demonstrates how the government continues to use its vast spending power to coerce Respondents' fealty. Disclaimers also fail because, as this Court recognized in 2013, U.S. Respondents cannot credibly disavow the speech of their own clearly identified affiliates. The injunction affords Respondents complete relief from these violations and should be upheld. John G. Roberts, Jr.: Counsel, can your client compel what the foreign affiliates say on this question? David W. Bowker: We represent several different organizations here, as Your Honor knows, and I think it is correct as a factual matter that in every case, the U.S. organization effectively can veto the speech of a foreign organization on these issues. They do speak together. They make their speech choices together. But the U.S. entities here, as a practical matter, typically control that speech. John G. Roberts, Jr.: Can you give me a citation to the record where I can look to find that? Because I -- I thought that by saying that there wasn't a formal affiliation, but the organizations share the logo and the name and so forth, that there was some absence of control. And, in fact, that's what the foreign governments, for example, were insisting on. David W. Bowker: I think -- I think Your Honor is correct that there is -- as a legal matter, there may be the absence of control in some cases, but, in every case, there is practical control. I think the best citations to the record would be -- for -- for CARE, would be at J.A. 389, which talks about how the CARE entity speaks with a single global voice, and then I think, importantly, J.A. 436 through 445, which discusses CARE U.S.'s ownership of the brand and licenses on the brand, which is, in that case, legal control to dictate what occurs under that brand. John G. Roberts, Jr.: Thank -- thank you for that, counsel. You -- you used the phrase "practical control," and I just wonder precisely what your test for that would be. David W. Bowker: I think the -- the right test here is the risk of attribution. As this -- as this Court recognized in 2013, there can be a risk of attribution across corporate lines where the entities in question are so clearly identified, as they are here. I think the -- the practical control point is even stronger when those entities speak together with one voice and make their speech and policy decisions together. John G. Roberts, Jr.: Thank you, counsel. Justice Thomas? Clarence Thomas: Yes, thank you, Chief Justice. The -- did you have an opportunity in the lower courts to discuss or debate what criteria would be used to determine whether or not the two organizations merge or are close -- affiliated closely enough so that the First Amendment rights apply domestically? David W. Bowker: We did, Your Honor. Judge Marrero gave the parties an opportunity to both submit voluminous materials into the record and to explain to him the relationship between these entities. I think, here, what's important is there is no dispute about the relationship here. These entities are clearly identified with one another. There's no dispute that they share a name, brand, logo, mission, and voice. And I think critically here there was a two-year period where we worked hard to try to settle this case with the government. We provided extensive factual information to the government during that period. We also provided lists of the entities involved, and we offered to stipulate to a definition, and the government rejected that -- that effort by us. But we -- we did make a full effort in the district court and then separately with the government to come to terms on this issue. Clarence Thomas: Well, if you went that far, could you give us just -- give us a recap of what the criteria would be for that affiliation that would be close enough? David W. Bowker: Yeah, absolutely. I think, here, the test should be organizations that are part of a global network that share names, brands, logos, missions, and voices. And I -- I think the reason that that's the right test is because we're talking about attribution by the reasonable observer. As this Court has recognized in a long line of cases that Justice Sotomayor mentioned and that Justice -- Justices Alito and -- and Breyer previously discussed, a long line of cases recognized that there can be attribution across corporate lines, especially with tightly knit international organizations like these. Clarence Thomas: The -- I understand that. So the one final question, and I know you've covered this, but it would be helpful if you would give us a recap of what precisely you think your injury is. David W. Bowker: Well, I think the -- the types of injuries are twofold. The first injury is the compulsion of speech. And the problem here is that even though the pledge is being imposed on our foreign affiliate, those words are effectively put into the mouths of the U.S. Respondents because of the attribution problem. And the government says: Well, it's no harm to the U.S. organizations because, of course, they can remain neutral. But that's not right. Once those words are put into the mouths of the U.S. Respondents, they -- they -- that policy position is attributed to them and the harm is done from that compelled speech. The second nature -- the second category of harm comes from the speech restrictions imposed by the regulations. What those say is the foreign affiliate will lose its funding unless it maintains adequate separation from organizations that say or do anything inconsistent with the policy. So, when the government says that the U.S. organization can disavow the pledge, that comes at a high price, which is the loss of funding for the foreign affiliate. And so the -- the -- the categories of injuries are twofold, one from the speech compulsion and the other from the speech restriction. It's a catch 22 for these U.S. organizations. John G. Roberts, Jr.: Thank you, counsel. Justice Ginsburg? Ruth Bader Ginsburg: Counsel, I don't follow your last response, because the domestic organization is able to speak for itself, and as far as any attribution of the foreign entity to the domestic organization, AOSI can disclaim the foreign entity's pledge. It says: We don't take the pledge, and we disclaim any connection to the pledge that's made by foreign entities. It's not our pledge. So they can say, and they say, that pledge, by taking it by the foreign entity, was the price for receiving U.S. dollars. The foreign -- David W. Bowker: Justice -- Ruth Bader Ginsburg: -- organizations continue to work with prostitutes; they have just made a statement that, on the ground, means nothing. David W. Bowker: Justice Ginsburg, I think this Court had it exactly right in 2013 when it recognized that an organization cannot both avow the government's viewpoint and then turn around and assert a contrary belief or even claim neutrality without appearing hypocritical and without appearing to engage in doublespeak. And the problem here, of course, is that the entities are indistinguishable and they speak as one. And so focusing on the corporate difference is a mistake. After all, it's -- it would be odd that the international operating arms of these U.S. organizations are treated differently based on whether they operate through branch offices or through separate corporations. And, in fact, what -- what is wrong with the government's view that this is all by choice is that there are certain jurisdictions where local law and even the U.S. government's own funding criteria require these U.S. Respondents to work through local affiliates. And so we're -- we're -- we're caught unable to disavow, credibly disavow, the speech of an entity that looks just like our client and speaks as one with our client. Ruth Bader Ginsburg: Let me ask you a question, an -- an argument that you didn't make. You concede that the foreign entity has no First Amendment rights. But what about the First Amendment obligations of the U.S. -- U.S. government? For example, we can say the Eighth Amendment doesn't apply abroad, but does that mean that the U.S. government official operating abroad is free to torture people? In other words -- David W. Bowker: Justice Ginsburg -- Ruth Bader Ginsburg: -- is there a -- David W. Bowker: -- I think it's an important -- sorry. I'm sorry for interrupting. Ruth Bader Ginsburg: And I'm asking whether U.S. actors have an obligation to conform their conduct to constitutional norms? David W. Bowker: The first response is I don't want the Court to think that we're trying to export the First Amendment. That's not what we're trying to do. We're just trying to afford complete relief to U.S. organizations that have First Amendment rights here. But, to Your Honor's good question, I think, in a system with a limited government and a constitution that includes a Bill of Rights, I think there is a fair question about the extent to which the U.S. government can go beyond what it's authorized to do in the Constitution with respect to speech. I guess the other point I would add is that even these clearly identified affiliates overseas, I think the government would concede, have First Amendment rights when they act here in the United States, as they often do when they come here for meetings or to publish papers or to participate in conferences. And the problem with the pledge requirement, of course, is that it binds these organizations forever and for all purposes, both the -- John G. Roberts, Jr.: Thank you, counsel. David W. Bowker: Yes. John G. Roberts, Jr.: Justice Breyer? Stephen G. Breyer: It seems to me the government is prepared to concede that you, the CARE U.S.A., doesn't have to -- doesn't have to oppose prostitution. But they say the First Amendment doesn't prevent them from telling CARE India that it has to oppose. So why don't you simply write a grant to get all the money yourself and then you give it to CARE India? Why doesn't that work? David W. Bowker: Well, the -- the problem with that, Your Honor, is that, according to the government, the policy requirement still binds the U.S. organization in the following way: If CARE U.S. gets the money and sub-grants to CARE India, it must carry the burden of the government in the sense of imposing the policy requirement on its own affiliates and police compliance with the policy requirement, not just with respect to the speech and activities of its foreign affiliate but also with respect to itself, lest it violate the regulations which it -- Stephen G. Breyer: Where do I find in the briefs or in the record just what you said? Because it seems to me just what you said shows that this case is 100 percent about the rights of an American company, the parent, and the question is, can they forbid -- can the government require them to forbid one channel of communicating the message, can it control what they say in that channel? The channel happens to be a channel that goes abroad. I -- I don't know that there's any precedence for the policy -- the precedent that says they can. I mean, have I got that right? Is that clear? David W. Bowker: Yes. I think the best citations in the record, Justice Breyer, would be the regulations themselves, J.A. 248 to 265. And I would direct Your Honor's attention to the discussion, the commentary of 45 C.F.R. 89.3, and that's at J.A. 256 through J.A. 258, where the government makes very clear that not only do funding recipients have to demonstrate their separation from entities that speak inconsistently, but they even go so far as to say there has to be separation from entities that do not have a policy themselves, suggesting that the government's view is that the U.S. Respondent itself should have a policy. I also think another place to look in the record is at J.A. 375 and 390, where the Pathfinder organization talks about U.S. funding criteria that require them to work through local affiliates and locally incorporated entities. Stephen G. Breyer: Thank you. Thank you. John G. Roberts, Jr.: Justice Alito? Samuel A. Alito, Jr.: I agreed with your client's position when this case was before us previously. But what concerns me today is not so much the immediate impact of a decision in your favor but where it would lead. So let me ask, because I am concerned that it will force Congress either to withhold foreign aid entirely or to allow foreign aid to be used in ways that are contrary to the interests of the people of this country. So let me give you this example. Excuse me. Suppose that the -- the United States provides grants to domestic entities and allows them -- excuse me -- to make sub-grants to foreign schools for the purpose of promoting education in countries with weak educational systems. And suppose that Congress specifies that any foreign entity that gets a sub-grant must have a policy denouncing terrorist attacks against American civilians. Would that be unconstitutional? David W. Bowker: No, it wouldn't be, Your Honor, because that requirement doesn't require the affirmation of a belief and then conformity with that belief and espousing it as one's own. And that -- this requirement -- Samuel A. Alito, Jr.: Well, it does exactly. The school that gets the money must have a policy denouncing terrorist attacks against American civilians. It's compelled to speak. It doesn't want to make that speech. It is affiliated with an American entity. Why isn't the argument exactly the same in that situation? David W. Bowker: I -- I think that there's a problem with germaneness in that case. The -- the requirement there wouldn't be related to the federal program. But your -- to Your Honor's, I think, larger question, this doesn't turn on the particular ideology. I think any -- any idealogical commitment, any requirement of an idealogical commitment by grantees is problematic for the same reasons as the one here. What I will -- Samuel A. Alito, Jr.: Yeah, exactly. That's exactly right. Let me -- let me ask you one more question before my time expires. Why doesn't the logic of your argument apply to the provision of funds to totally independent foreign entities? So suppose a U.S. entity gets money. Under the Leadership Act, it wants to make a sub-grant to a non-affiliated foreign entity, but it can't do it unless the foreign entity makes -- unless the U.S. entity tells the foreign entity, you cannot use -- you must have a policy opposing prostitution. The U.S. entity is compelled to make a statement that it doesn't want to make. Why doesn't the logic of your argument apply there? David W. Bowker: Well, in that case, the entity being made to take the pledge is not clearly identified with the U.S. entity and, therefore, the pledge of the foreign entity doesn't get attributed back to the U.S. entity. And I think that's a very important difference. Here, when the U.S. entity imposes the requirement on its sub-grantee, on its clearly identified foreign affiliate, it's as if it's imposing the pledge requirement on itself, because, after all, these -- these organizations are indistinguishable and speak with one voice. I -- I do think it's important to make the point that the government still has very broad authority to control what happens with its funds, to put in place policies for its programs, and to require that grantees fulfill the requirements of the program in every respect. This particular requirement is unique. There's no other requirement like it in U.S. law. And I think a decision for Respondents can be very narrow, turning on the facts of this case and the prior ruling of this Court, which declared the policy requirement unconstitutional. John G. Roberts, Jr.: Thank you, counsel. Justice Sotomayor? Sonia Sotomayor: Counsel, there has been a long history to this case. I'm not quite sure what the relationship is of your clients to the agency now. Are your clients grant recipients who currently receive grants, who currently work through their foreign affiliates, and their foreign affiliates have not taken this pledge, or have they not received grants and want to work with their foreign affiliates? I'm -- I'm not quite sure what the status is of what the government's been doing or not doing. David W. Bowker: So these organizations are the same organizations that were before the Court in 2013 but a smaller group because the rest of the clients are too small to have global networks. We now are talking about the entities that were before the Court in 2013 that are the -- the large international entities like CARE and Save the Children and World Vision and Pathfinder that are the ones with their own clearly identified affiliates overseas. And these organizations receive money here in the United States and receive money through their locally incorporated affiliates. CARE, which is the example we've been using, the U.S. entity receives all U.S. grant money under this program and then sub-grants to its local affiliates. And so, in the case of CARE, it has done that under objection. It -- it asserts that it should be free of this policy requirement. It believed that the litigation in 2013 would have disposed of this issue. And it continues to suffer these First Amendment harms and violations that we've been discussing today. Sonia Sotomayor: I don't -- I'm not sure you've answered my question. They are receiving the funds. Are they subcontracting with affiliates or partnering with affiliates and are the affiliates making the pledge and they're complaining about the fact that they're forced to do that? Or have they not been -- and have they not been policing the foreign affiliates and the government's now threatening to take away the funding? David W. Bowker: Well, it's a little bit of both, Your Honor. Let me explain. They are receiving the funds, and they are imposing the pledge requirement under objection on their clearly identified foreign affiliates overseas. The government has said that all these years there's been no objection to this practice. I -- I don't think that's exactly right, with respect to my friend. In fact, early in the litigation, there was a -- there was a disagreement in the district court about the proper scope of the injunctive relief, and the Respondents wanted broader relief to include sub-grantees. And the government objected on the ground that those facts were not yet known. And the facts now are known. That was -- that was fully 12 years ago. The facts are known. The record is developed. The district court entered its findings. And I think there's no dispute about the nature of the relationship now. Sonia Sotomayor: And so are they threatening to take away the funding? Why? David W. Bowker: They are now saying that the policy requirement will be enforced as against the clearly identified foreign affiliates of the U.S. Respondents because, they say, those organizations have no First Amendment rights. We argue that this isn't about any rights of the foreign organizations. It's about the First Amendment right. Sonia Sotomayor: No, no, no. Counsel -- David W. Bowker: Yes. Sonia Sotomayor: -- I'm sorry for interrupting, but if the foreign affiliates have made the policy statement, what -- so they've done what the government wants. Why would the government take the funding away from you or them? David W. Bowker: We -- we object to that policy requirement. We don't want to have to impose it on our clearly identified affiliates. And it's causing the U.S. Respondents to have to engage in doublespeak. And if they do that, if they attempt to disavow that pledge, which is attributed to them, they will lose their funding for the global network. And -- John G. Roberts, Jr.: Thank you, counsel. Justice Gorsuch? Neil Gorsuch: Counsel, in -- in response to Justice Ginsburg and Justice Thomas, you indicated that the primary harm your client had suffered is the risk of attribution, mistaken attribution, of the foreign affiliate's speech to the domestic entity. That sounds a bit like an alter ego argument, that the ordinary listener will be confused and attribute the speech of a foreign affiliate to the domestic entity. Yet, at the same time, I -- I assume you -- you'd resist any effort to pierce the corporate veil from those foreign entities and impose liability on the domestic entity. So in what respect is it and when should we attribute speech or actions of foreign affiliates to the domestic entity? Why would we pierce the corporate veil sometimes but not all the time? David W. Bowker: Your Honor, we don't ask the Court to pierce the veil or to treat these entities as alter egos. Rather, we're focused on the unique nature of speech and the way speech can be attributed even when corporate formalities are observed. And I think the right line of case law here is not just this Court's decision in 2013 in AOSI but also cases like Pleasant Grove City v. Summum; Walker v. Texas Division, Sons -- Division, Sons of Confederate Veterans; Pacific Gas & Electric; and, as Justice Sotomayor mentioned, the Hurley parade case. All of those cases recognize that legally separate entities or individuals and entities can have speech attributed from one to the other without engaging in any kind of veil-piercing or alter ego analysis, which would get the Court mired into the corporate formalities, which we don't advocate. Rather, we think a more limited holding based on the nature of speech and the First Amendment would suffice. Neil Gorsuch: On -- on that score, what evidence is there that there is this risk of confusion or attribution, given that the domestic entity is free to disavow the statements of any foreign affiliates? What -- it seems to me an empirical question. Do we have any empirics? David W. Bowker: Yeah, I think the best evidence is -- is in the record in the unrebutted sworn declarations of these organizations, which talk about how they are perceived in the public health community, the price they are paying in the form of hypocrisy and the way that they lose their integrity and their reputation and their brand when they're forced to speak out of two sides of their mouth. The -- the declarations that were -- Neil Gorsuch: I -- I understand -- I understand that harm, counsel. And I'm sorry to interrupt, but I -- I understand the harm that -- that people will see the disavowal and will -- will take cognizance of it. But is that the same thing as anyone really thinking that the domestic entity abides by the government restrictions and endorses them? Does anyone really think that when they -- when they -- when they read that, or do they think that this is a statement made by a foreign entity in order to secure U.S. dollars that obviously the U.S. entity itself does not promote or agree with? Why wouldn't that be the natural reading by the -- by the average reader? David W. Bowker: Well, I think, when these public health organizations take a pledge saying that they believe something, I think people take it very seriously. When they say that they believe that HIV/AIDS is transmitted in a certain way or when they say they believe that prostitution should be dealt with in a way that stops the spread of the disease, people listen to them. The reason they're so effective in these programs -- Neil Gorsuch: I'm sorry, counsel. Counsel, I accept that, again. That's not really quite my question. Couldn't a reasonable person hold in his or her mind two things: one, the foreign entity believes X; two, the domestic entity does not believe X? David W. Bowker: Well, Your Honor, I think that falls apart when the organization speaks with one voice, as these organizations do. They -- they have a right to speak that way. They have a right to -- to join with their affiliates in having their -- their -- their common voice and their common mission. And when they're told to say one thing and then disavow it in another breath, I think it undercuts their reputation and brand and their own speech. Neil Gorsuch: Well, are -- David W. Bowker: I think Your Honor had it exactly right. Neil Gorsuch: -- are we back then, counsel, to -- to the -- the belief that people will always confuse this as one entity and it's not possible for a local chapter of an organization to have a different view than the national organization or the international organization? That people cannot hold that -- that concept in their heads? John G. Roberts, Jr.: Briefly, counsel. David W. Bowker: Yes, briefly. I think the public doesn't know that these are separate corporations. The problem is they're -- they are indistinguishable and they -- they look to the public to be exactly the same. And so it really would be more like Your Honor's case in Masterpiece Cake Shop, making the baker say one thing and then attempt to disavow it in the next breath. John G. Roberts, Jr.: Thank you. Justice Kavanaugh? Brett M. Kavanaugh: Thank you, Chief Justice. Good morning, counsel. I want to clarify, first, one thing from your colloquy with Justice Ginsburg. You agree, I assume, that unaffiliated foreign entities acting abroad have no constitutional rights under this Court's precedents? David W. Bowker: We do, Your Honor. Brett M. Kavanaugh: Okay. And then I want to pick up on Justice Alito's concern or question about the foreign policy effects of your approach, and I have a hypothetical as well. Suppose the U.S. government wants to fund foreign NGOs that support peace in the Middle East but only if the NGOs explicitly recognize Israel as a legitimate state. Are you saying the U.S. can't impose that kind of speech restriction on foreign NGOs that are affiliated with U.S. organizations? David W. Bowker: I think that's a -- a harder case, because I don't -- I don't hear that as requiring affirmation of a belief. Rather, it's in recognizing a fact that the U.S. has established a certain diplomatic relationship with -- with Israel, and the U.S. government gets to say what that relationship is for the United States. I don't think that's making the entities espouse that view as their own. And so I think that's different. I think that would be acceptable. Brett M. Kavanaugh: That would be acceptable in your view? David W. Bowker: I -- I think it would be. Brett M. Kavanaugh: Okay. And then the government says that your position would unleash foreign affiliates of U.S. corporations to pump money into the U.S. election process. And I wanted to give you a chance to respond to that claim, which was in the government's reply brief and then repeated here today. David W. Bowker: Yeah, I -- I disagree with that. That's a very different case. That is a -- that is a speech restriction. It is not speech compulsion. And that restriction doesn't apply to the U.S. organizations. And so -- and I think this Court dealt with that the right way in Citizens United and distinguished the foreign organizations from the U.S. organizations, and it's a different case. Brett M. Kavanaugh: Thank you, counsel. John G. Roberts, Jr.: One minute to wrap up, Mr. Bowker. David W. Bowker: Thank you, Your Honor. Applying the policy requirement to foreign members of these tight-knit international entities fighting HIV/AIDS overseas puts words in the mouths of the U.S. members of those entities, and the program regulations effectively prevent the U.S. members from even disavowing what the foreign members are compelled to say. The injunction should be upheld. John G. Roberts, Jr.: Thank you, counsel. Mr. Michel, three minutes for rebuttal. Christopher G. Michel: Thank you, Mr. Chief Justice. Just a few points in rebuttal. First, to respond to Justice Sotomayor's question about facial invalidity, Footnote 1 of our reply brief explains that the government's prior submission was clear that the statute was -- it was being challenged only with respect to domestic entities, and, in fact, a true facial invalidation would invalidate the statute even as applied to foreign entities that have no connection to the United States, which I take it my friend has just conceded is not his position. Second, my friend concedes -- my friend stated that the U.S. entity truly is in control. And I think that's exactly right. But that ultimately underscores that it's the U.S. entity, the holder of the First Amendment rights, that is making a choice to affiliate with a foreign entity that accepts Leadership Act funds. Unlike in this case last time and unlike in cases like Hurley and Masterpiece, the U.S. entity is not required to make that choice. The U.S. entity has a separate choice to accept Leadership Act funds itself and operate itself without -- in -- in foreign countries without any risk of hypocrisy or -- or a mixed message. As Justice Gorsuch says, you have to take the sweet with the sour when you decide to set up a separate corporate entity. Now my friend suggests that either U.S. funding conditions or foreign law somehow give an incentive for -- for U.S. entities to use foreign affiliates, but they're not challenging any U.S. funding decisions, which would, we believe, beyond -- be beyond challenge anyway. And foreign law certainly cannot change the scope of a U.S. entity's First Amendment rights. My -- my friend's position ultimately rests on what he frames as a risk of attribution test. But I think Judge Straub got it right below when he called that position startling. As Justice Kavanaugh and Justice Alito both, I think, alluded to, that test would be unworkable and it would call into question all manner of U.S. speech restrictions on foreign entities abroad. Now my friend says there's a distinction between speech restrictions and speech compulsions, but the risk of attribution test that he has outlined, where you simply compare names, logos, and brands, has nothing to do with the distinction between speech attribution and speech compulsion. And in all events, the foreign entities here are only, if the -- if the U.S. entities choose, required to make the statement in a -- in a letter to USAID, not to shout it from the mountaintops and not to say anything that will ultimately interfere with the U.S. recipient's message. Finally, I want to note Respondents never made this argument for more than a decade of the litigation. I think what happened is that, having secured rights for U.S. entities, they decided to ask for the world. But there's no basis in this Court's prior decision or any other source of law for that -- for that holding. It would invalidate a provision that Congress has adopted and reauthorized and that is working. The decision below should be reversed. John G. Roberts, Jr.: Thank you, counsel. The case is submitted.

Earl Warren: Number 12, Anthony M. Grosso versus the United States. Mr. Wright. Charles Alan Wright: Mr. Chief Justice, may it please the Court. As the issues are presented by the United States, Grosso, the case that initially seemed very unlike, they're related of course to Marchetti, has now become virtually the same case since the United States no longer relies on the distinction drawn in Kahriger and Lewis between perspective and the past acts a distinction that might have divided these two cases. Instead as I understand the Government's position at the present time it puts its reliance on the voluntariness of the choice to gamble and on the need for accommodation between the taxing power, the privilege arguments that of course have felled and is equally to the excise tax of the occupational tax. The word accommodation is a fine word and the notion that both the taxing power and the privilege are contained within the constitution and each of these are of great importance for our country and should be preserved as of course a matter in which we make common cause with the Government. Where we disagree is how you do this. At page 13 of its brief the Government talks of striking a balance between these two constitutional powers. This is -- many areas of constitutional law of course, a very controversial phrase. But I'd suppose that at least with regard to the Fifth Amendment and its privilege against self-incrimination that there was no room to balance out the constitutional protection in order to serve some other governmental aim. William J. Brennan, Jr.: You said two constitutional powers? Charles Alan Wright: One of power and one of privilege. William J. Brennan, Jr.: One who restricts? Charles Alan Wright: Yes. One of restriction on the Government. William J. Brennan, Jr.: --On the powers? Charles Alan Wright: I think the -- William J. Brennan, Jr.: On the powers? Charles Alan Wright: It's a restriction, this power as on many other powers. William J. Brennan, Jr.: I thought the bill of rights clashes with the area restriction that -- restrictions on all governmental powers, along this one? Charles Alan Wright: No, I quite agree with you sir. It seemed to me that the teaching of (Inaudible) is that you don't balance the way the privilege against self-incrimination. And that no matter how important information may be to the Government. For example, as put by Justice Harlan for the Court wasn't even information essential to national security cannot be obtained if there is a valid claim of privilege. If the Government cannot fulfill incriminating information in order to preserve itself, it's a little hard to think that in compelling incriminating information in order to get comparatively minor amounts of revenue that we're talking about here. But as the argument has going this morning, we have ranged away from the wagering taxes to talk about the implications, the decision in these cases will have -- with regard to taxes that are of the greatest importance to the exchequer discuss the income tax. I think I would like to address myself to some -- the income tax implications. It is my understanding that when I fill out schedule C, I was in my occupation as lawyer. If I were not admitted in the bar, I think I would be entitled to fill out schedule C just as I do but to claim my privilege there. This is obviously dictum in Sullivan but this apparently is the position in which the Internal Revenue Service acquiesces but does not challenge this. And Albertson of course gives a great deal of course to that. At other point, some are returned. One can list income but without specifying the source. The record in this case, unfortunately enough, the portion of our brief, it was here, I believe its at page 17 of the transcript shows that the petitioner in this case paying income tax every year and substantial sums of the money -- William J. Brennan, Jr.: But Professor, perhaps actually -- maybe the Internal Revenue Service acquiesces (Inaudible) Charles Alan Wright: I grant that. Obviously, if the -- William J. Brennan, Jr.: And the -- Charles Alan Wright: If -- William J. Brennan, Jr.: And you're claim in this case I suppose --(Inaudible) Charles Alan Wright: Not necessarily. I can distinguish the two cases. I can distinguish them on the ground that we advanced in our -- Byron R. White: Let's take the gambler now, is it saying the gambler -- Charles Alan Wright: No. Byron R. White: -- and who's (Inaudible) Charles Alan Wright: It seems to me, Mr. Justice White that one could rationally argue that that gambler is not required to fill out Form 730 or Form 11-C but that he could be required and expose the source of his income on Section 1040. Byron R. White: Do you say that (Inaudible) doesn't require the privilege (Inaudible) that despite of Sullivan and in spite of the Internal Revenue Service (Inaudible)? Charles Alan Wright: I do not think the Court has ever been asked to decide that question. I can think of good arguments against the distinction that I -- Byron R. White: But at least you'd say that -- (Inaudible) Charles Alan Wright: Yes, sir. And I think it doesn't control Mr. Justice White for this reason. It is the distinction that it was crucial on Albertson and on which we have put a great deal of weight throughout between the statute singles out someone in an area permeated with criminal activity and the statute that is general in its application. When we were here in January, I suggested to the Court that we cannot build an entire constitutional doctrine on the metaphor linked in a chain. And that it seems to me the incriminatory potential of the statement depends on the point at which it is extracted from the person who gives it. Byron R. White: Well, what this state -- schedule C when he files his income tax return and if this -- what's the nature of your business, what's the address, so on and so forth. Now, I don't know why that's any less damaging (Inaudible). Charles Alan Wright: In a particular case, it maybe damaging. Byron R. White: So, the same here with the same fellow, at the same time, he's got to file (Inaudible), one 730, one 1040. He gets the -- both forms that require about the same information. Charles Alan Wright: And the difference is that the one form is directed to this specific kind of bad activity and the other is not. It -- Byron R. White: Schedule C is -- 1040 is directed specifically at this individual proprietorship and wants to know precisely what business he's in and he may have no other income whatsoever. Charles Alan Wright: But it is not direct -- schedule C is not directed only to gamblers. Byron R. White: Oh, I agree with that but as far as he's concerned, he could care less. It applies to other people, does it apply to him, even his gambling business incriminates him just as much in Form 730 though (Inaudible)? Charles Alan Wright: Just so. And this is why in our brief on reargument after pointing out two possible ways in which Shapiro can be distinguished, we confess that neither of these is going to provide as much protection to a person as overruling Shapiro would. We didn't think this is a case in which the Court should have to decide whether it overruled Shapiro and did not urge you to do so. But we recognize that a doctrine such as Shapiro is an inroad of the Fifth Amendment and that a doctrine contrary to Sullivan, a doctrine that require your 1040 to identify your source would be an inroad. Now, the extent to which those inroads can be made is interesting here only by way of analogy, I don't think this case would control those. Abe Fortas: Did I -- perhaps I misunderstood you but I thought you just said that the Fifth Amendment -- that Form 1040 may appropriately ask for the source of income and that the Fifth Amendment would be no defense to a person engaged in illegal gambling who fail to fill in that. Is that what you said? Charles Alan Wright: If it was what I said, then I'm very sorry. I said it because that -- not be my position. Abe Fortas: Yes, I know. I wouldn't -- Byron R. White: I thought that's what you said a while ago. Charles Alan Wright: No, I had thought that an answer to the question of Mr. Justice White, I was saying that it would be rationally possible to distinguish between these two things in this ground. I would not myself make the argument. I think you can distinguish but I don't think you ought to distinguish. I think Sullivan was right, the dictum of Sullivan. Byron R. White: Because schedule C is going to be applied to the gambler applies in an area then that -- as you, permeated with illegality in Albertson said. And schedule C in that respect is (Inaudible)? Charles Alan Wright: I think this is similar sir to the defense that some of the commentators made for Shapiro that to the average food dealer keeping records of the sort, he'd ordinarily and customarily kept would not be incriminated. Now, with just bad luck for Shapiro that he sent him to jail. I don't like that. I don't like Shapiro. I don't think I have to take it on Shapiro as Lewis -- Kahriger and Lewis. The difficulty I have with the accommodations that the Government provides this. It seems to me that their first suggestion that we have a suitable accommodation in Kahriger and Lewis is an accommodation that leaves the Fifth Amendment out entirely. That it is reading into the Fifth Amendment the exception to which Mr. Justice Black worded this morning, that no one need to be a witness against himself except where a tax is involved. I can't say that anything of substance is left in the Fifth Amendment on that accommodation. The alternative, the use restriction is apparently consisted with the Fifth Amendment. Certainly Murphy says this that there is language in Stevens v. Marks in which the Court of appeared a little less sure about it. And we assume that use restriction is a constitutional form of accommodation. As we've argued in our briefs into several members of the Court has suggested, we do not think that it is an accommodation that it is for this Court to adopt in the circumstances of this case. It would be an extremely difficult accommodation. On the one hand, that -- probably would have the result of producing additional revenue for the Federal Government. On the others, we argue in our reply brief and for reasons that Mr. Justice Brennan developed it would significantly limit the prosecution of gamblers. Now, we suggest that a choice of this kind which you're more interested in, getting revenue from an excise tax on gambling or in having the states free to send gamblers to jail is the kind of a choice that Congress is better equipped to make than is this Court. Congress can determine the facts that can count the costs and resolve them as it sees fit. Speaker: They don't have a -- 6107 doesn't apply on the (Inaudible)? Charles Alan Wright: It does not sir. Speaker: Then what is the (Inaudible)? Charles Alan Wright: There is nothing that either side can find in view of the statute -- the regulations of prohibiting disclosure. The practice we are told by the Government is that in some instances, disclosure is made with regard to the excise tax and we have in our original brief cited a number of examples in which the Government had in fact given state authorities copies of the Form 730. If there is to be a use restriction then for the reasons I suggest, we think that is properly a congressional choice. And I must say I'm so much surprised that the argument the Government made is to why this is an appropriate case in -- for the Court to invent a use restriction. In the first briefs, we said that if a use restriction is something appropriately within the power of this Court to invent on its own, then a great many famous cases from Counselman and Hitchcock down to Albertson were wrongly decided because these were cases in which Congress have tried to provide immunity. It hadn't gone far enough and instead of saying, "We'll restrict the use", the Court has said, "No, the statute is unconstitutional". At page 22 I believe, his initial brief, the United States undertakes to distinguish this by saying that in the Counselman or Albertson situation, Congress has focused its attention on the Fifth Amendment problems in a particular situation. While with regard to the wagering tax it says and I think quite rightly that when the Congress adopted the wagering tax, it wasn't thinking at all about Fifth Amendment problems. Those were the days when state incrimination of course was thought not to matter. But this seems them to lead to the paradoxical position that if Congress has thought about Fifth Amendment problems and try to anticipate them and to protect people but has not used in just the right words to do it, then we strike out the congressional statutes since they have tried again but if Congress hasn't thought about it at all, the tenets for the Court to think about it. I suggest that this is -- would not be a sensible or a tenable position to take. We argued too that unlike the Government that if the Court should adopt to use restriction, the result in this case has to be reversal. Mr. Beytagh says that that character in Lewis were on the books and the defendant should had noticed of them and I'm going to assume that and even assume that for this purpose, Kahriger and Lewis would notice the excise tax not involved in any case in this Court until Grosso was valid. But if Kahriger and Lewis were on the books at the time petitioner failed to pay his tax so to was Irvine. And he would've been on notice that if he paid the tax that that evidence could be use against him in a criminal prosecution. Now, the Government says that, if we are wrong in our first view, if you adopt the use restriction, then you recognized that petitioner had a constitutional privilege not to pay the tax but because now, years later, a restriction is put on the use of it. He should have anticipated that in the teeth of Irvine and should've known, "Well, if I pay the tax, the Supreme Court someday will find the use restriction and nothing bad will happen to me". I submit that this is entirely unrealistic and to uphold a criminal conviction under a statute that refers to a willful failure in that kind of a circumstance would be pretty noble indeed. Byron R. White: Of course we didn't -- in Murphy that wasn't what happened either. Speaker: No, in Murphy, you sent the case back. And -- Byron R. White: But I take it you to suggest that if Congress impose -- that if the statute now provided for a use restriction such of the scope and the type that the Government suggest that this could satisfy the Fifth Amendment? Charles Alan Wright: We are taking that position, yes, sir. Byron R. White: Then you wouldn't say if there's -- and there's immunity required? Charles Alan Wright: No. William J. Brennan, Jr.: I don't follow then Professor -- let see if -- you suggest that if a use restriction is to be fashioned that should be congressional and not judicially done? Charles Alan Wright: Yes. William J. Brennan, Jr.: In Murphy though, it was judicially done, wasn't it? Charles Alan Wright: In Murphy it was judicially done. That is correct. William J. Brennan, Jr.: And you just say don't compound the error, is that it? Charles Alan Wright: No, I say there are two distinguishing circumstances. The first is that in Murphy, there was a legislative judgment by the New Jersey legislature insofar as it was within its power it -- one of this information badly enough that it was willing to give immunity. Now here, there has been no judgment by any legislature that once the information that badly and indeed with regard to the stamp tax declaration, we don't' want to give an immunity, sell it to the state prosecutor for a dollar per hundred words. The second distinction is that Murphy involved an extremely difficult problem in federal state relations in which there was no ideal solution. I think that the Court developed that the best solution that it could. Byron R. White: But Congress could have done it. Charles Alan Wright: The Congress could have done it. That is right. Abe Fortas: Suppose this excise tax were set up so that it worked like a real estate transfer tax that Mr. Zeldes once described in trust. I mean, this go to the post office and you buy an excess tax stamps and then you keep them in your possession so that they can be produced upon (Inaudible). Now, would that -- and your opinion be upfront the Fifth Amendment? Charles Alan Wright: I think their administrative machineries didn't permit that but perhaps would not confront the Fifth Amendment. I think our purpose -- Abe Fortas: So that the number of your difficult -- the umber of your contention here relates to the disclosures that have to be made to the Government, is that right? Charles Alan Wright: Yes, sir. Abe Fortas: And those disclosures are the name of the person stressed in the fact that he is engaged in unlawful gambling. Is that correct in this case as distinguished -- Charles Alan Wright: Yes sir. Abe Fortas: -- from Marchetti? Abe Fortas: And your position is that if those -- that if a statutory scheme were devised with what -- to avoid those infirmities that that would not run a file on the Fifth Amendment? Charles Alan Wright: That is correct, sir. In fact the Government in its brief suggested one way this could be done. In our brief, we indicated that we thought that it would be valid. The Government in the footnote at page 40 of its brief suggest the possibility of having a more general excise tax return form in which you would not be required to identify that you're paying the tax because it was on wagers. You would be able to do is -- we think you're able to do now in the income tax simply indicate that you would incur excise tax liability in this amount. Abe Fortas: So that the fact that this is -- suppose the fact that this is a particularized tax on wagers, the excise tax on wagers as distinguished from an excise tax on driving an automobile or something like that is not really the part of your position here, is it? Charles Alan Wright: I think it is the fact that you have to disclose that you've -- been engaged in the business of wagering in order to pay the tax. That isn't enough (Voice Overlap) -- Abe Fortas: Yes. But not of its -- levied as a particularized tax on wagering because unless I -- you allowed me to mislead you which I've been -- I felt like you did or would. You have just said that if this same wagering tax were levied, assessed and administered on the basis which did not require disclosure it would not qualify under the Fifth Amendment. Charles Alan Wright: That is our position, yes sir, Mr. Justice Fortas. There is one other issue in our case that's not Marchetti and I want to be sure that it is not lost cite of and make simply two comments about it. That is the issue of the private communications between the judge and the jury outside of the presence of defendant and his counsel. The United States takes the position on its brief that perhaps the rule that we proposed that this is reversible error unless the harmlessness of the communication is made affirmatively to appear would be an appropriate enough rule to adopt in the proper case but they say not here. They say defendant did not object at the right time. There were things he could've done when he learned about this third hand, 45 minutes after it happened that might have had some curative effect. I think it is significant that with all the legal scholarship that has gone into this case since the time that trial counsel was in the heat of a long trial and hadn't decided what to do or not to do. But the United States has yet to produce or cite any rule of criminal procedure that would have required Mr. McLaughlin to have followed the course of the United States now suggest. It has not produced any decision of this Court that says that this is incumbent upon him. And at that time, 1963, the law was clearly established in the Third Circuit in which he was practicing by two cases, a recent case of United States v. Neal in 320 F. 2d on an early opinion of Judge Maris in Arrington and Robinson that there is no such obligation on the counsel. And I think it would be a little hard to say that these defendants right to be present whenever anything happens in the trial against them was waived because of the failure of his very competent counsel not to take a step that even today no one can find any authority for other than the decision of the court below in this case when it finally got there on appeal. For these various reasons, may it please the Court, we believe that the conviction should be reversed. Earl Warren: Mr. Beytagh. Francis X. Beytagh, Jr.: Mr. Chief Justice and may it please the Court. As Professor Wright has pointed out this case involves as far as the Fifth Amendment claim is concerned, failure to pay the 10% excise tax on wagers as distinguished from the $50 special occupational tax that -- and the registration requirement that we're involved in Marchetti, the prior case. In the main as Professor Wright points out, the position that the Government takes in the two cases is substantially the same. I would like to discuss first, this other issue that Professor Wright refers to in passing and then come back to the Fifth Amendment problem. As we understand it, petitioner's contention is that here the trial judge's treatment of a note which he received from the jury was such that it required reversal of his convictions. Now as we developed in our brief of last term, and as Professor Wright concedes, no objection was made on this Court until after the jury's verdict was handed down even though counsel was apprised with the fact that there'd been some communication between the jury and the judge and was apprised of this not too long after the matter had occurred. Now it seems to us that the fact here that the judge plainly stated that the note that he received was one -- it was identical to a later note that is part of the record. A later note that was -- that is part of the record was a notification to the judge that the jury was deadlocked and a request for instructions. The judge's response was for them to continue to work. He stated when the matter of this first note was brought to his attention, that the first note was substantially the same, that his response had been substantially the same. It seems to us that the rule that the petitioner really contends for is that reversal is required whenever there is a communication between the judge and the jury outside of a defendant's presence unless the absence of any prejudice can be conclusively shown. Now, whatever the rule might be as to a situation where the defendant has seasonably obected and this isn't just a procedural requirement if he objects prior to the verdict, a matter can be explored at the time when it makes some difference. But if he waits until after the verdict comes down and then raises the matter, he's effectively preserved his option. He finds out what the verdict is and then he makes the objection if it goes against him. We don't' think that's required. It seems to us also that despite all the horribles that are stated in petitioner's brief that the substance of the second note here itself which is part of the record indicates that nothing very untoward could have gone on with respect to the prior communication because the notice is simply a request -- a notification that the jury is deadlocked in a request for instructions. We think therefore that the trial judge did not err in his treatment of the note under the circumstances here and that this ground provides no basis for a reversal. Now as to the Fifth Amendment claim, at an earlier point in these cases, the argument was developed that Kahriger and Lewis didn't speak to the excise tax problem. And that's true in the sense that Kahriger and Lewis both where cases involving the registration requirement in the special occupational term as distinguished from the excise tax. As I pointed out previously, one of the views of Kahriger and Lewis is that -- it was -- they were grounded on the consideration that the registration requirement was only prospective in operation. As Professor Wright directly points out, this argument cannot be made with respect to the excise tax return. We point out that we think both Kahriger and Lewis can be read not as standing solely on this perspective retrospective ground but on the question of whether there's any compelled information in the Fifth Amendment sentence. I don't want to go back through a familiar ground. We've been through that several times. But I do point out that with respect to the excise tax return, the non-taxpayer of the excise tax just like the non-registrant for the special occupational tax is free to choose whether he wants to gamble or not. Our position is that Kahriger and Lewis properly understood all that when he decides to gamble, he has made a choice to accept the federal tax conditions that are attached. Potter Stewart: Of course if that -- that argument can be made -- could be made, if it's a -- it's a good argument. It could be made -- in any cases involving the self-incrimination clause of the Fifth Amendment, couldn't it. Francis X. Beytagh, Jr.: I don't think it (Voice Overlap) -- Potter Stewart: You don't have to be a burglar. You don't have to commit a rape. You don't' have to murder somebody. Francis X. Beytagh, Jr.: Well -- Potter Stewart: But if you do you wave the privilege against self-incrimination. Francis X. Beytagh, Jr.: No, I think -- I don't think that the argument could be carried to that extreme. If it is necessary to do so then the argument makes no sense. It seems to me that as to the burglar, his situation is this. He knows that if he commits a burglary, it's against the law and he might get himself into difficulty. The gambler knows the same thing as to state law. He also knows another thing. He knows there's a federal tax. We're not saying that he waves the privilege when he decides to gamble as to the substantive offense. We're saying that Kahriger and Lewis, the rationale there is that -- as to federal tax conditions, he waives his privilege because he's accepted them so to speak as part of his decision to engage in that. Now, if you had a tax on burglars which was discussed the argument last term and which we have some question about. It seems to me that the first question would be whether this is even an appropriate exercise of the taxing power and that would be the primary issue in that comment -- context. Hugo L. Black: Well, why wouldn't it be? Francis X. Beytagh, Jr.: Why wouldn't he be what, Your Honor? Hugo L. Black: Why wouldn't it be an appropriate exercise in the taxing power, if the Government wants to tax burglary? Francis X. Beytagh, Jr.: It seems to me, Your Honor, that we've established that the taxing power does have some limitations. That the taxing power has to be used with respect to objects and subjects that are at least arguably within a proper scope for taxation like the child labor tax. Hugo L. Black: What provision of the constitution that address Congress? Francis X. Beytagh, Jr.: Well, it rest on the consideration of whether Congress is properly functioned within the constitution. Hugo L. Black: But if it found -- Francis X. Beytagh, Jr.: If it taxes some -- Hugo L. Black: This is about tax. Francis X. Beytagh, Jr.: Yes, Your Honor. But the problem is you -- it seems to me you can't simply label something a tax and say that therefore it's constitutionally justified. That their case is that I've considered this problem but that the only purport of the exercise of the power is to attach a penalty upon an activity that Congress otherwise couldn't regulate through the commerce power or some other power. And this Court has questioned whether that's an appropriate exercise of the tax power. Hugo L. Black: Taxing does implicate him. Francis X. Beytagh, Jr.: Yes, Your Honor. Hugo L. Black: So, why couldn't you tax with embezzlement? Why couldn't you tax burglary? Francis X. Beytagh, Jr.: Well, the tax on embezzlement involves the income tax and the question there is whether the -- Hugo L. Black: Either you make this an income tax? The burglar gets income (Voice Overlap) -- Francis X. Beytagh, Jr.: Well, the burglar I take it has the -- I suppose, to pay income tax on his income. I don't know how many do it but the question is whether you could -- Hugo L. Black: I thought you couldn't tax a burglar? Francis X. Beytagh, Jr.: No, whether you can single out burglary as an appropriate subject for taxation. Hugo L. Black: But if you can enact it, why couldn't you? Francis X. Beytagh, Jr.: Because the question would be whether this was inappropriate way in which Congress could exercise the tax power. It couldn't' tax child labor in the child labor tax case because the Court found that that was a subterfuge for the -- for an effort to regulate an activity that the Congress did not power to regulate. It seems to me a similar question would be raised with respect to burglary. Indeed in Kahriger, Justice Frankfurter, his opinion discussed in length, his view that this was not an appropriate exercise of the tax power because it was just an attempt to put a penalty on gambling. The majority of the Court rejected that view but that's the consideration that I speak to when I -- Hugo L. Black: Well, the Government can tax criminal in Congress, could they? Francis X. Beytagh, Jr.: Yes, Your Honor. We're speaking -- I'm speaking in the context of an excise or some other kind of special tax and not an income tax which this Court has held covers income from illegal as well as an awful sources. Hugo L. Black: Well, if you'd -- you admit it from tax burglary, the burglar has to pay tax on his income, doesn't he? Francis X. Beytagh, Jr.: Yes. Hugo L. Black: But could he be compelled to admit burglary, insist of doing the Fifth Amendment? Francis X. Beytagh, Jr.: Well, I take it the Sullivan rational and the income tax context would apply to that as well. Sullivan says that there isn't any Fifth Amendment problem, he has file a return. What he says is, I don't tell you what the source of that income was if it's unlawful. But in an excise tax context, it seems to me I have a different -- we have a different problem. We developed in our brief and the petitioner took some slaps at it, the position that gambling is a large and ongoing business in this country, well it is. We all know that. Hugo L. Black: How about burglary? Francis X. Beytagh, Jr.: Well, I don't think burglary is quite as big as gambling. But the sole intent of that development in the brief was that in response to the questions about whether this tax is a tax, that gambling is a proper subject for an excise tax. That when you tax a variety of legitimate activities with excise taxes, why shouldn't illegal activities also pay a tax? It seems to us that it's kind of a curious claim that a person should be excused from taxation because what he does is unlawful. Hugo L. Black: Well, its -- it wouldn't be as curious plan, is it? The Government was barred from turning those -- the bills of rights says, don't judge with it? Francis X. Beytagh, Jr.: No. But that's the -- it seems to be the question here Your Honor. Francis X. Beytagh, Jr.: Well -- William J. Brennan, Jr.: Well, that's what you said. Abe Fortas: Well, how do you distinguish between the burglary case in this case, you can constitutionally make a person buy -- pay an occupational tax could be a gambler, why can't you make them compare an occupational tax to be a burglar? He's got to post a stamp saying I'm engage -- in fact, I am engaged in the business of unlawful gambling or are you -- why can't you make him post the tax because I'm engaged -- the unlawful business of burglaring houses? Francis X. Beytagh, Jr.: Well, I think that kind of tax would be far more suspect with respect to whether Congress really intended to tax the activity or whether it's simply intended to put another penalty on it. Fortunately, Congress hasn't done that yet. It seems to me that -- if such thing develops, then we can -- Abe Fortas: But isn't the theory the same. Well, I'm not asking an idle question. Isn't the theory, one for theory be the same in the case of a burglars as in the case of a gambler in terms of impact of the Fifth Amendment. Both the -- Francis X. Beytagh, Jr.: I don't think that -- Abe Fortas: -- cases here -- Francis X. Beytagh, Jr.: I don't think that -- Abe Fortas: Both cases you're acquiring incidental to a tax scheme a person to disclose that he is engaged in an unlawful occupation. Whether the unlawful occupation of burglaring houses or a place or -- in the business of wagering, I suggest that yourt comment may not make any difference. Francis X. Beytagh, Jr.: Well, it's -- first, gambling is not everywhere unlawful. I take it burglary is. Second, it seems to me also that as we seek to develop gambling as a business, operates more like a business that pays excise taxes than burglary. And then your -- it seems to me that the point where the congressional judgment that was exercised to place kind of tax is one that's grounded on appropriate tax considerations. I don't know what the answer in the burglary case is but I would have a good -- more difficulty with that because of the nature of burglary. Hugo L. Black: Well, the answer is that its taxable, isn't it as income tax? Francis X. Beytagh, Jr.: But we're not -- Hugo L. Black: Income from burglars? Francis X. Beytagh, Jr.: Yes, Your Honor. We're speaking -- Justice Fortas asked about a -- Hugo L. Black: Are you talking about a different named tax? Francis X. Beytagh, Jr.: No. He asked about an occupational tax on burglars and it was in that context that I've said I thought burglars were in a different situation. Earl Warren: And your position, I take it is that gambling is a business which can or cannot be regulated by Government. It can be permitted. It can be prohibited. Therefore, it would come within the taxing power to tax that business in a reason -- in any reasonable manner. But that the Government would not have to write constitutionally to use the taxing power to give anyone a license to steal. Francis X. Beytagh, Jr.: No, I think that's right. It -- the legislative history develops -- Senator Keith Hoffer was an opponent of this legislation. And he had just previously completed his inquiry into organized crime, I take it is. And he said, this tax is an ill advice thing because the effect of it will be to -- in the mind of people give a federal license so to speak to people engaged in gambling. Well, this -- Potter Stewart: Would be an opponent of -- it was Senator (Inaudible) an opponent of both the statutes -- both was wanting the occupational stamp as well as the -- Francis X. Beytagh, Jr.: Yes. Potter Stewart: -- excise tax? Francis X. Beytagh, Jr.: Yes, Your Honor. His feeling was that what you would be doing here would be giving federal approval (Voice Overlap) -- Potter Stewart: Purporting to give a federal license to get it them -- Francis X. Beytagh, Jr.: Right. Potter Stewart: -- to gambling. Francis X. Beytagh, Jr.: Now, petitioners refer to various statutes that they say indicate Congress made a judgment not to confer any immunity here. Well, Section 4422 speaks in terms of this -- the wagering tax statute, not impairing or impinging any kind of prosecution for the substantive offense. But that was written against this background of people saying, well, you shouldn't enact this kind of tax because it will give federal sanctions so to speak to illegal activity. One point that Professor Wright makes is that he feels that while our use restriction accommodation is not a nonsensical one, he recognizes that it may flow from Murphy. That Murphy is a different situation and it's a different situation because there, there was a state immunity statute. And so the Court just had a help a little bit by putting a use restriction approach with respect to federal incrimination. Well, we all know that in the Murphy situation the state itself could not have provided immunity from federal prosecution. So, Murphy was a situation in which you had no effective immunity provided. And the Court -- Mr. Justice White develops this at length from his concurring opinion. The Court was faced with the problem having concluded that the Fifth Amendment applied both to the states and the federal government as to what to do about -- to enter jurisdictional problem. Now in Murphy, the Court concluded that this problem could be dealt with by the adoption of an exclusionary rule that would protect against any federal incrimination. Now, what we suggest here is the Court do the same thing. Professor Wright says, “No. Don't do that. Leave it up to Congress if they want to”. Well, it seems to us that if the question is whether immunity from prosecution completely, total immunity is appropriate. We submit that that's not necessary. But then maybe that is the situation in which the judgment should be left up to Congress. But as Professor Wright concedes that's not the requirement under Murphy. And if it isn't, then we suggest the Court should do the same thing it did in Murphy, adopt the use restriction rule. Byron R. White: Mr. Beytagh, how would you mechanically handle this in the tax situation in that? Would you just say that a fellow just goes ahead and files whatever forms the Government requires and then if the Government prosecutes sometime later, if the defendant claims, does the defendant have to claim that they're using some information? Francis X. Beytagh, Jr.: I don't think there'd be too much of a problem with that. I think they'd all claim -- Byron R. White: But then the Government has to claim that they haven't used any of the information on the return whether incriminatory or not? Francis X. Beytagh, Jr.: Well, I take it that what we're talking about is the information on the return that is in incriminatory. There position is that the mere filing (Voice Overlap) -- Byron R. White: You wouldn't in propounding this rule or just use restriction? You wouldn't say that the defendant -- that the fellow who wants to file should it -- that kind not to make any claim of immunity at all? Francis X. Beytagh, Jr.: No, I don't think so. Byron R. White: Oh, when you claim -- Francis X. Beytagh, Jr.: I don't think that that would result in a waiver. That was thrown out of one point. Byron R. White: But he shouldn't have to say at the outset that there are some of these questions that I don't want to answer. They're just automatically -- they just -- that information just -- right across the board wouldn't be utilized to go into criminal prosecution? The Government had its choice in between -- and of course this wouldn't take the choice away from Congress that this Court -- Francis X. Beytagh, Jr.: No. Byron R. White: -- didn't (Voice Overlap)? Francis X. Beytagh, Jr.: That was a point I was going to put it. But it seems to me that the alternative really if this is a proper view of Murphy is for the Court to either adopt the use restriction rule and if Congress doesn't like that. If it doesn't like the wagering tax being a tax measure, then they can get rid of it -- Tom C. Clark: Well, Mr. Beytagh -- Francis X. Beytagh, Jr.: Or -- William J. Brennan, Jr.: -- the use restriction rule, am I clear that we fashioned for Murphy puts the burden -- Francis X. Beytagh, Jr.: Yes. William J. Brennan, Jr.: -- on the Government or at the time of any prosecution are to affirmatively to establish that the evidence it's using did not have its source in anything that was disclosed to a grand jury? Francis X. Beytagh, Jr.: That's right. And -- William J. Brennan, Jr.: Yes, but (Voice Overlap) -- and you don't (Inaudible) any different form of exclusion -- restrict this rule, do you? Francis X. Beytagh, Jr.: Not -- no, not at all. The burden is on the Government for showing independent source and we're talking about not just the use of the form. We're talking about the fact to filing and use of that as a link or lead whatever. Thank you. Speaker: (Inaudible) Francis X. Beytagh, Jr.: Your Honor, we -- in our brief in the Grosso case last term, point out in Footnote 10, the authority and limited circumstances for the commissioner's disclosure of certain information that is not within 6107. It's Footnote 10 on page 40. Speaker: (Inaudible) Francis X. Beytagh, Jr.: The commissioner has -- Speaker: (Inaudible) Francis X. Beytagh, Jr.: What sanction is there at -- Speaker: What are the -- (Inaudible) Francis X. Beytagh, Jr.: The -- I take it that the commissioner has construed those statutes as concurring on him in a limited circumstances the authority in his discretion to do that. Speaker: (Inaudible) Francis X. Beytagh, Jr.: No. Your Honor the statutes that we referred to there. Thank you.

William H. Rehnquist: We'll hear argument first this morning in Number 02-524, Janette Price, Warden versus Duyonn Andre Vincent. Mr. Busch. Arthur A. Busch: Mr. Chief Justice, and may it please the Court: This case involves a gang-related murder in which a jury found the defendant guilty beyond a reasonable doubt. There was one trial conducted, and the defendant was sentenced to life in prison. The Sixth Circuit Court of Appeals erred in its conclusion that the Michigan Supreme Court's decision on double jeopardy was unreasonable. The AEDPA precludes habeas corpus relief where a State court makes reasonable factual determinations. The Michigan Supreme Court's decision was not only reasonable, but also correct. The Michigan Supreme Court's decision was correct for three reasons. First, this was a factual matter which was reasonably decided. Second, the trial judge's-- William H. Rehnquist: When you... when you say this was a factual matter, I got the impression that as to basic facts, there really wasn't any dispute about them. Arthur A. Busch: --Mr. Chief Justice, the Michigan Supreme Court was evaluating what exactly this trial judge said. It was ambiguous. And in trying to determine what he said, then we could understand, or they could understand what he had done and what legal import that had. William H. Rehnquist: But... but there was no... all I'm saying, there was no doubt about what... what he said. The... the legal import is... may be much more difficult to figure out. Arthur A. Busch: Your Honor, the factual question in terms of what it was that he said is... is different than what he had actually done. And therein lying... understanding what this judge had done or said, the meaning of it, then would give us some understanding of what the legal import was. Antonin Scalia: Well, I guess there are really three questions, aren't there? One is what he said, and there... as the Chief Justice says, there's no dispute on what he said. The second question is what he meant by what he said. And the third question is, once you know what he meant, at law does that constitute a... a final judgment. Arthur A. Busch: Yes, that's correct. Antonin Scalia: So there are three questions, and... and which one... is the middle one, what he meant, as opposed to what he said... is that a factual or a... or a legal one? Arthur A. Busch: That... it would be our position that it is a factual question and courts... the Court in Parker versus Dugger and Wainwright versus Goode have dealt with this issue. Where we have ambiguous rulings of a trial judge, that has been found to be a factual-- Stephen G. Breyer: I'm sure actually... your inference. I mean, it's quite a fine point, but I guess I wouldn't say necessarily that what he meant has anything to do with it. That is, he said certain things in the world, and if he had a secret meaning, we don't care nor does the law. But having said these particular things in the world, then the question would be, can the Michigan Supreme Court... does it... did it... it characterized those things, and it said as a matter of Michigan law, those things said in the world do not amount to a judgment of acquittal. So then I guess we would... if that's the way to look at it, then we would have the problem of deciding whether, even though as a matter of Michigan law, those events that took place in the world do not amount to a judgment of acquittal. Nonetheless, for purposes of the Federal Double Jeopardy Clause, do they amount to a judgment of acquittal? Those would be two legal questions. One, a State law question, and one, a Federal question, and no factual question. Arthur A. Busch: --Well-- Stephen G. Breyer: But that's something of a quibble because I don't know that leads us to a different place. Arthur A. Busch: --The Michigan court found that this trial judge's decision was, in fact, tentative. And that decision and conclusion was reasonable. The judge, at page 12 of the joint exhibit, speaks of... and if I could turn to that page. The judge starts out by saying, well, my impression is at this time-- William H. Rehnquist: What page? Arthur A. Busch: --Page 12 of the-- William H. Rehnquist: Page 12 of what? Arthur A. Busch: --At the bottom of page 12 of the joint... the joint appendix. Excuse me. The court says, nothing? Well, impression at this time is that there's not been shown. And then at page 18 of the same exhibit, the court actually schedules an 8:30 motion the following day when the prosecutor in this case... the assistant prosecutor asked the court if he could be heard. And the judge said, I'll be glad to hear you. And in fact, the court had originally scheduled the attorneys to be there at 10:00 and then changed the time for them to show up before the jury came back. And lastly I think it shows that no one who was involved in this case at the trial level actually believed that a final ruling had been made. The court says at page 34... excuse me. The defense counsel says... and I'm quoting Mr. Odette... that's correct. They don't... I'm not disputing that, but it's my firm impression that when I left the court yesterday, that there had been a ruling and that Mr. Stamos had indicated he'd like to have the matter reconsidered. And I believe the court said, whatever. And what's instructive is what the judge said next. That's right. And I... well, I said, yes, I'd be glad to listen, or words to that effect. Lastly-- Stephen G. Breyer: What about the docket entry? Was there a docket entry too? Arthur A. Busch: --There was a docket entry which was made by a clerk which was not reviewed by... and which is not reviewed by the trial judge. And in Michigan, the docket entry isn't dispositive of whether or not the judge had made a final ruling of acquittal or a judgment of acquittal. David H. Souter: May I... may I just ask you a further question to make sure that I understand the... the sort of the assumption behind your argument? And it's really the same question that Justice Breyer and Justice Scalia I think were... were raising. My understanding is that the courts, up to this point, have treated the issue here as an issue of fact. What was the judge... what did the judge think he was doing? Did he understand or could one reasonably understand that the had made a final ruling or not? It might also have been treated as an issue of law. Given what the judge did, even if he thought he had made a final ruling, he might, as a matter of law, consistent with the Double Jeopardy Clause, have been able to change his mind if he hadn't issued a formal order and if no one had acted in reliance. But I understand that legal question, the way I just put it, is not the question that people understood has been decided in this case, and that everybody is treating this as a... as an issue of the factual question and that's what you're addressing. Am I correct? Arthur A. Busch: That's correct. David H. Souter: Okay. Arthur A. Busch: The Court has also... and without conceding my case, in the alternative, if this Court was to conclude that this judge had, in fact, issued or made a judgment of acquittal, it would be the people's position or the petitioner's position that the trial court need not be able to reconsider to reach a just result because they... they rule so swiftly. In other words, the Michigan court was correct because judges, trial judges in particular, need time to reflect. They're often making these decisions without trial transcripts, in many cases without extensive legal research. William H. Rehnquist: Well, Mr. Busch, this case here come... the case comes to us under... under AEDPA; that is, that you don't have to show that the Michigan Supreme Court was correct as a matter of law in its decision. You have... your... your opponent has to show that either it was an unreasonable application of our precedents or contrary to our precedents, if it's a legal question, and if it's a factual question, that the Michigan Supreme Court made unreasonable findings of fact. Arthur A. Busch: Exactly. And also, this Court has held and the statute requires that that finding of fact be presumed to be correct. Ruth Bader Ginsburg: Mr. Busch, why wouldn't it be unreasonable if, as respondent asserts, the Michigan rules provide that a directed verdict made at the close of the evidence, that the judge may not reserve decision, must decide it, may not reserve decision. I think that's what the judge ended up doing here, is that not so? When he reconsidered, he reserved decision 'til the end of the defense case. Arthur A. Busch: Yes, and in fact, in this particular case, the judge did not come to a conclusion as to... did not enter a verdict of acquittal. In this particular matter, the court held... in that particular circumstance, it said in the opinion that it was harmless error in their opinion. However-- Ruth Bader Ginsburg: They... did they address... I didn't notice that the court had addressed the Michigan rule that said-- Arthur A. Busch: --They-- Ruth Bader Ginsburg: --you can't reserve decision. Arthur A. Busch: --The rule of the Michigan courts... that is, the Michigan Rules of Criminal Procedure at 6.419, I believe it is... requires that there be some plain statement made, essentially, that there be something clear. And that was... and it is... our position that the court-- Antonin Scalia: I don't understand what you mean. Are you addressing Justice Ginsburg's question? She's talking about the rule that says you can't reserve-- Arthur A. Busch: --Yes. Antonin Scalia: --when a motion is made at the close of all... was this motion made at the close of all the evidence? Arthur A. Busch: At these of the prosecutor's proof. Antonin Scalia: Is that what the rule applies to? At the close of the prosecutor's proof? Or does it apply to only when the whole trial has been completed? Arthur A. Busch: It... it applies when the motion is made is my understanding. Antonin Scalia: I don't understand that. William H. Rehnquist: Well, that's not really an answer. If it's just the prosecutor's case and the motion is made, is that covered by the rule, or is it required that both the prosecutor and the defense case be in? Arthur A. Busch: No. It can be made at any time and... and any point in-- William H. Rehnquist: A motion can be made, but-- Arthur A. Busch: --That is, the motion for a directed verdict of acquittal. Ruth Bader Ginsburg: --Do you have the rule, the rule of criminal procedure, so we'll know... that might give us the answer to this question. Arthur A. Busch: The-- Ruth Bader Ginsburg: The Michigan rule that says the trial judge shall not reserve decision on the defendant's motion. Does that rule apply when the motion is made at the close of the prosecutor's case? Arthur A. Busch: --The rule is 6.419(D), and it's cited at page 17 of the petitioner's brief. Antonin Scalia: Is it quoted there too? William H. Rehnquist: What does it say? Arthur A. Busch: It says... about in the middle of the page in... in bold, it says, did not substantially comply with the requirements of MCR 6.419(D), and provide that, quote, the court must state orally on the record or in a written ruling made a... a part of the record its reasons for granting or denying a motion for a directed verdict of acquittal. And my understanding of that is... that rule is that anytime the motion is made, the judge is supposed to make clear the reasons why he's granting a directed verdict. William H. Rehnquist: Well-- David H. Souter: --What is-- William H. Rehnquist: --But in ordinary trial practice certainly you... you can't... the defense counsel in a criminal case can't get up after the prosecution has called two witnesses and said, I move for... I... I move for a judgment of acquittal. I would think the first time that could be made ordinarily would be-- Arthur A. Busch: Yes. William H. Rehnquist: --after the close of the prosecution's case. Arthur A. Busch: That's correct, once the evidence is presented. David H. Souter: And what has the rule, as you just quoted it, got to do with... with reservation? In other words, the judge can say, my reasons are A, B, and C, but I'm going to sleep on it, and... and tomorrow morning I may come up with D and... and rule the other way. I mean, what's that... what's it got to do with reservation, his... his reserving his right to change the ruling at a later time? Arthur A. Busch: The rights of the judge to change his mind... our... our position is, is that he has that right until the jury would be discharged. David H. Souter: Well, does the rule address that? I mean, Justice Ginsburg asked a question going to reasonableness that depended on what she understood from the... from the briefs to be a Michigan rule saying the judge can't reserve his right to change his mind later or reserve judgment on the motion when it's made. Ruth Bader Ginsburg: In respondent's brief, it's put in quotes. And it sounds like it's quoting from a rule, 6.419(A). Quote: The court may not reserve decision on the defendant's motion. Arthur A. Busch: Yes, that-- Ruth Bader Ginsburg: Do those words appear in the rule? Arthur A. Busch: --Yes, that's the rule. Antonin Scalia: That's fine. And what motion does it refer to? A motion made at what point? At any point at all? Arthur A. Busch: That's my... I don't think it's specific, but I think the-- Antonin Scalia: Wow. Arthur A. Busch: --Chief Justice-- Antonin Scalia: So after two witnesses are called by the prosecution, the motion can be made and the judge cannot reserve? Arthur A. Busch: --Excuse me. At the close of the prosecutor's proofs, that motion would be appropriate under our rules of criminal procedure. Stephen G. Breyer: Do... do we have the full text of this rule before us? Arthur A. Busch: The rule is quoted at page 29a, note 1 of the-- William H. Rehnquist: 29 of the-- Sandra Day O'Connor: --Of what? Arthur A. Busch: --Of our brief. Ruth Bader Ginsburg: 29? Arthur A. Busch: Excuse me. Of the joint appendix. Petition's appendix-- Antonin Scalia: 29. Arthur A. Busch: --petitioner's appendix. Antonin Scalia: Petitioner's appendix? Ruth Bader Ginsburg: The cert petition. Antonin Scalia: In the cert petition. Ruth Bader Ginsburg: Yes, and footnoted. Anthony M. Kennedy: Yes. It... it says after the prosecution's case has rested. Arthur A. Busch: Yes, that's right. Stephen G. Breyer: It's a little hard to understand that. Anyway, they said it was harmless error. The... the court... the courts... the Michigan court said it's harmless error, all right. But it's a little hard to understand. It says you... you... the prosecution finishes the case. The defendant then says, judge, I move for a directed verdict. All right? Or a failure of proof, whatever the words are. Then it says the judge could give his reasons in writing... I mean, that's one way... or orally. How is the judge supposed to do this without taking some time? What does reserve there mean? Does it mean he has to pass on it before they present the... the... he has to decide it before the defense presents its case? Does it mean you can't reserve it 'til after the defense has presented the case? Does it mean you have to rule instantly? What does it mean? Arthur A. Busch: Your Honor, I-- Stephen G. Breyer: It can't mean instantly. What? Arthur A. Busch: --The... the rule means that he should decide as promptly as he can is the way I understand-- David H. Souter: Now, Mr. Busch, may I make this suggestion? It seems to me the rule distinguishes between motions made after the prosecution has rested and motions made after the entire case is in. Antonin Scalia: Yes. David H. Souter: It says in the latter case, the judge can reserve, take his time on it. Arthur A. Busch: --Yes. David H. Souter: It seems to... it strikes me, just reading the thing, that the point of the rule is that before the defense goes forward, the defense has a right to know what the ruling is. William H. Rehnquist: That's what I would think. David H. Souter: Now, in this case before the defense went forward, it knew what the ruling was because the judge had come in the next morning and said, okay, I... you know, I've... I'm going to listen to you again. I've listened to you again, and... and, in point of fact, I'm... I'm not going to grant the motion. And isn't that enough to satisfy what seems to be the point of the rule, and that is, before a defendant goes forward with a case, he's got to know whether he has to or not? Isn't... don't... isn't that a fair way of reading this thing? Arthur A. Busch: Yes, and I think that happened in this case. This defendant came prepared to try the case on a first degree murder theory, and nothing substantially changed that and he was not prejudiced in any way. David H. Souter: No. But before he... before he went forward with his evidence, the judge had changed his mind or come to a further, more final conclusion, however you want to characterize it, so that before he went forward, he knew the judge was saying, no, I'm not throwing out the first degree murder charge. And isn't that enough under the rule? Arthur A. Busch: Yes, Your Honor. David H. Souter: Okay. Ruth Bader Ginsburg: But you would say that if the-- Arthur A. Busch: May... can... can I-- Ruth Bader Ginsburg: --if the defendant was operating under the impression that the... if the defendant didn't know before he put on his case, would it be too late for the judge to change his mind at the end of the defense case? Arthur A. Busch: --Our... no. Our position would be that he can change his mind anytime up until that jury is discharged. Chief... Mr. Chief Justice, may I reserve the balance of my time for rebuttal? William H. Rehnquist: Yes, you may, Mr. Busch. We'll hear from Mr. Lamken. Jeffrey A. Lamken: Mr. Chief Justice, and may it please the Court: It's a long-established background principle that mid-trial rulings are inherently subject to reconsideration by the trial court itself until the end of trial. That is especially so where, as here, a party promptly seeks reconsideration which necessarily renders the initial ruling inconclusive. That rule reflects four important legal and practical considerations. First, trial courts often must rule swiftly without the benefit of extended briefing, argument, or deliberation or even a copy of the trial transcript. They could not operate justly absent the opportunity for reconsideration. Second, the Double Jeopardy Clause affords the government a full and fair opportunity to make its case in the first tribunal. In the context of trial, that full and fair opportunity includes reconsideration. Indeed, reconsideration is particularly important precisely because the government very often cannot appeal. Antonin Scalia: I guess we never reach your... your argument, do we, if we decide this on the 2254 ground. Jeffrey A. Lamken: That's correct, Justice Scalia. The Court could... there are many stopping points short of our argument on which the Court could resolve this-- Antonin Scalia: Well, we shouldn't reach your ground unless we have to, should we? Because your ground is a constitutional ground. Jeffrey A. Lamken: --Well, Your Honor, the Court would have discretion to reach the constitutional ground if it thought it were important enough to resolve the disagreements in the State courts and their... their rulings that are contrary to-- Antonin Scalia: I thought we try to avoid deciding constitutional questions. Jeffrey A. Lamken: --Yes. That is... that is one of the rules the Court follows and it's a general rule, but in important cases, particularly in the qualified immunity context, for example, the Court will... will sometimes announce the constitutional rule because it's sufficiently important to settle the matter rather than resolving it on statutory grounds or in... in the context of qualified immunity on reasonableness grounds. Antonin Scalia: Well, that's sort of a special situation because in those situations you could never get the answer if you always decided it on... on immunity grounds. I mean-- Jeffrey A. Lamken: Justice Scalia, the Court would have discretion to reach the constitutional issue if it chose, but it would... certainly would not be required to do so. For example, the Court decided a double jeopardy issue in Monge, but that was 4 years after addressing the exact same issue in... on Teague grounds in an earlier case. And for those 4 years, the lower Federal courts and the courts in the State of California for which it had special applicability suffered through a... a tremendous amount of uncertainty. And we would urge the Court, given the uncertainty that's out there, to reach the constitutional question. However, the Court would have discretion to resolve this on 2254 grounds-- Ruth Bader Ginsburg: --If we follow the position that you're urging and... and the judge rules, as here, premeditation is out of the case, I'm not going to charge first degree, defendant puts on defendant's case on the assumption first degree is out of the case and then the judge says at the end, oh, sorry, I'm reversing and I'm going to charge. Now, you say the judge can change his mind at any time 'til the end of the line. It seems to me that would be grossly unfair to a defendant. Jeffrey A. Lamken: --For double jeopardy purposes, but not for due process purposes. That would raise a... raise a... a serious due... excuse me... due process issue. It's the exact same issue that arises, for example, when a trial court dismisses a count of a complaint, which raises no double jeopardy concerns at all and then, very late in the trial, determines that he had erred in dismissing an... a count of the indictment. When that happens, the ordinary process is either the court must reopen the evidence to permit the defendant to put on the defense that he didn't have the opportunity to present, or the defendant may be entitled to a mistrial. But that is very much a fairness trial, due process issue, not a question of double jeopardy. The third point is that double jeopardy-- Stephen G. Breyer: So then in Fong Foo when Judge Wyzanski I think got angry at the prosecution for some reason that escaped the Court and everyone else, directs an acquittal, what the prosecutor should have done is just go back to Judge Wyzanski and say, Judge, you made a mistake here. I haven't been talking to the witness in the hall as you thought, or whatever, and then Judge Wyzanski could have, in fact, taken back the... the judgment of the directed... directed verdict of acquittal, although this Court later wouldn't have been able to do it in your view. Jeffrey A. Lamken: --In our view that's precisely correct, so long as Judge Wyzanski had not discharged the jury because once you discharge the jury, the... the defendant's right to trial before his tribunal of choice has been eliminated. The... so long as the jury hasn't been discharged, the trial court has inherent authority to correct its own mistakes. No double jeopardy purpose is served by giving... by precluding reconsideration to give the defendant the benefit of acquittal to which no court, and certainly not the jury and not the trial court that putatively granted it, believes the defendant is entitled. Particularly-- Anthony M. Kennedy: What's your best authority for that proposition from this Court? Jeffrey A. Lamken: --The-- Anthony M. Kennedy: Or... or-- Jeffrey A. Lamken: --I'd say-- Anthony M. Kennedy: --Or does that take us somewhat further than we've gone? Jeffrey A. Lamken: --Well, I think it would... our best case would probably be this Court's statements in Arizona versus Washington, in essence that the government... although the government often doesn't get an appeal and it doesn't get a second shot at... bite of the apple, it does get one full and fair opportunity before the trial court. In our view that full and fair opportunity must include reconsideration precisely because trial courts move so swiftly and because the initial decision by a trial court isn't meant to be a final decision but is, in fact, part of the deliberative process, part of the ongoing dialogue in trial among the judge, among a prosecutor and defendant's counsel. Anthony M. Kennedy: So if you drop the first degree murder charge... or the judge orders it dismissed and then the defendant testifies thinking, well, at least I'm not going to be tried for first degree, in your view the trial judge can change its ruling and reinstate the first degree murder charges because the defendant shouldn't have relied? He-- Jeffrey A. Lamken: No. We think it's-- Anthony M. Kennedy: --The... the defendant should know that the judge can change his mind, and so he better not take the stand. Jeffrey A. Lamken: --No. The ordinary rule... and this is the same rule that applies where a court, for example, dismisses a count of the indictment... is that defendants are entitled to rely on the interlocutory rulings. If they do so to their detriment and to their prejudice and it denies them the opportunity to present their fair defense, that is a significant due process problem and may entitle-- Anthony M. Kennedy: What-- William H. Rehnquist: --Well, it wouldn't be if... excuse me. What... what if you have a series of defendants in a... in a case and it's being tried, and at the close of the prosecution's evidence, the judge dismisses the indictment as against one of the defendants, but keeps on so the jury is still there? What happens then? Can the... the prosecution come back a couple days later and say, you made a mistake? Jeffrey A. Lamken: --That's, actually points up a difficult question which is whether or not the dismissal of the... well, if it's dismissal in the indictment, it certainly isn't a double jeopardy problem, but if it's a judgment of acquittal at that point, the question the court would have to confront-- William H. Rehnquist: Well, say... change my hypothetical to a judgment of acquittal. Jeffrey A. Lamken: --Right. That's what I assumed you had meant. And if that were the case, the court would have to decide whether or not that there... there's constructively or through legal fiction the discharge of the jury with respect to that defendant even though the actual jury is still there-- William H. Rehnquist: But that's-- Jeffrey A. Lamken: --We believe the actual answer would be-- William H. Rehnquist: --That's an extraordinary doctrine. Jeffrey A. Lamken: --Well, I... I would believe that the proper answer would be that if the jury is still available, the prosecution can seek reconsideration. But one could say that the jury was constructively discharged with respect to that defendant and thereby preclude the prosecution from seeking reconsideration. But the critical moment in all of those cases is what constitutes discharge of the jury, the defendant's chosen trier of fact. Anthony M. Kennedy: But getting back to the earlier point, if a... if the defendant testifies, thinking there's going to be no first degree charge, and it's later reinstated, under your position I think you would say, he shouldn't have relied. The rule is that he knows the judge can change his mind. Therefore, his reliance was at his peril. Jeffrey A. Lamken: Well, the Constitution-- Anthony M. Kennedy: I mean, I don't know why you don't argue... that's the consequence of your argument it seems. Jeffrey A. Lamken: --Well, certainly the Constitution doesn't require there to be mid-trial rulings on judgments for acquittal. In fact, Federal Rule of Criminal Procedure 29(b) specifically allows-- Anthony M. Kennedy: No, but the hypothetical is there is one. Jeffrey A. Lamken: --Right. And if the defendant relies to his detriment and it prevents him from presenting a fair defense to which due process entitles him, we believe that he might be entitled to a mistrial. But we... nothing of that sort happened here because defendant not only was on notice that this... that the ruling was subject to change, but if you look at the point in the joint appendix, which is the penultimate page, where the court announced... page 46, where the court announces that it has decided to reconsider, there's no objection from the defense saying, wait a minute, we relied. Our whole defense rested on this ruling. There's no statement to that effect. Antonin Scalia: I suppose parties can... can repudiate a contract, can't they, since there's no... no involuntary servitude? But the mere fact that one party to a contract knows that the other party can repudiate it, does not mean that the repudiation can be cost-free. Jeffrey A. Lamken: That... that-- Antonin Scalia: The other party is entitled to rely upon the contract despite his knowledge that it can be repudiated. Jeffrey A. Lamken: --Right. I... I think that just points out the general rule, that... when a trial court issues a mid-trial ruling, the defendant generally has a right to... to rely on it, and if he relies on it and it denies him his opportunity to present a fair defense, that presents a serious due process problem. But it is not a double jeopardy problem because double jeopardy is concerned with having two trials against the defendant when the prosecution had its full and fair opportunity in the first. The final problem with the contrary rule is that it requires appellate courts to engage in an often unrealistic endeavor to go through and try and determine what the trial court, through its spontaneous and sometimes extemporaneous statements, really meant to do or what it actually did. For example, in this case it seems to come down to the question of whether the words, my impression at this time, is... suggest sufficient tentativeness and whether the word okay is the functional equivalent of it is so ordered. In addition, under respondent's approach, the trial... the court of appeals would be required to determine whether the request for reconsideration came promptly enough, whether or not it came in the same breath... I see I'm out of time. Thank you, Mr. Chief Justice. William H. Rehnquist: Thank you, Mr. Lamken. Mr. Moran, we'll hear from you. David A. Moran: Mr. Chief Justice, and may it please the Court: First of all, a brief factual correction. The change in the judge's ruling did not occur before Mr. Vincent testified. The change in the judge's ruling occurred on April 2nd, 1992, 2 days after the ruling had been made after Mr. Vincent had testified. What happened on April 1st, 1992 was the judge indicated that he would reconsider his motion and hold it in abeyance, but he did not, at that time, take back the directed verdict of acquittal. Antonin Scalia: Well, he didn't take it back, but he made it clear that he... he did not consider it... he did not consider that he had made a final ruling. At least that was clear. It was clear that no final ruling had been made before the testimony occurred. David A. Moran: He... he took the position, Justice Scalia, that he could take back his ruling because he had not informed the jury of it. Antonin Scalia: Right. David A. Moran: A position that we submit is wrong under this Court's precedent in Sanabria. Antonin Scalia: Can I... can I ask you, do you believe like Justice Breyer that a judge can enter a final order without meaning to enter a final order? David A. Moran: What a reviewing court has to do under this precedent in Martin Linen, Justice Scalia, is look at the words and actions of the trial court and decide whether or not it amounts to a ruling. Now, in this case-- Antonin Scalia: And... and you do that just objectively, and even if there's plenty of evidence that the judge didn't intend it to be a final ruling, if he used certain magic words, it's a final... it's a final ruling. David A. Moran: --Well, actually, Justice Scalia, it's petitioner who's arguing for a magic words approach, or the Michigan Supreme Court at least. Antonin Scalia: No. I... I don't know who... who... in whose favor it breaks. I'm just asking what your position on it is, whether... whether... because on that... on that question hinges whether we are dealing here with a question of fact, as we would be in interpreting... in... in deciding, you know, what he intended, or a question of law, as we would be in interpreting the words of a contract where indeed it doesn't matter what the parties intended. If they express themselves this way, you... you take the objective meaning of it. Right? And that's a question of law for the court and not a question of fact for the jury. David A. Moran: Well, Justice Scalia, our position is, is that the trial judge's intent is a relevant fact, but whether or not what he did amounted to an acquittal-- Antonin Scalia: Is a question of law. David A. Moran: --is a question of law. William H. Rehnquist: Well, in... in your position here attacking a State judgment, you don't... you don't immediately get to the constitutional question. You get to the question of whether the Michigan Supreme Court's ruling was either contrary to our precedents or an unreasonable application of them. In other words, the Michigan Supreme Court could have been wrong as a matter of abstract constitutional law and it could still be upheld here. David A. Moran: Yes. What we attacked in Federal district court on habeas was the Michigan Supreme Court's conclusion that there had never been an acquittal at all, and we persuaded the Federal district judge and the Sixth Circuit that the Michigan Supreme Court's conclusion that there had not been an acquittal was an unreasonable application of this Court's precedents, particularly Ball, Kepner, Green, because the Michigan Supreme Court placed primary emphasis on the absence of formal trappings, and this Court has repeatedly held that even in the absence of any written judgment at all, as in Ball and Kepner, that a final directed... a verdict of acquittal is final. Stephen G. Breyer: It could be, but presumably Michigan knows Michigan law, and if they want to say, under the law of Michigan, the events that took place here do not amount to an acquittal, I guess that's their right. Now, is there anything in the cases that you cite which says that Federal law requires Michigan to count these things as an acquittal? David A. Moran: Well, this Court's precedents, particularly Martin Linen, teach that what the reviewing court is supposed to do is look not to the form of the trial court's ruling but the substance. Stephen G. Breyer: All right. Now, it happens in Michigan they don't do that. In Michigan, they have the Michigan system. Now, what is it that tells Michigan you have to, as a matter of Federal law, count this as an acquittal? I quite agree with you that there are cases where the Court has said this is an acquittal, but I don't think they're faced in those cases with a State court that says the contrary. David A. Moran: Well, Smalis, Your Honor. William H. Rehnquist: Yes. David A. Moran: Smalis came from a State court. William H. Rehnquist: Yes, but in Smalis there was no doubt about what the judge had done. I mean, there he expressly found that the State had not proved its case and everybody agreed he had done that, and then the State appealed to the higher courts in Pennsylvania. David A. Moran: That's right. In this case, however, if you look at the full record, the trial judge himself... and if we get to the issue of intent, Justice Scalia... the trial judge himself says over and over, I made a ruling, I came to a conclusion, I made a decision, and even at one point, I granted a motion for a directed verdict. He took the position simply as a matter of law, double jeopardy law, Federal double jeopardy law. William H. Rehnquist: Well, under AEDPA, what is it you think that the Michigan Supreme Court did wrong? Was it to misapply our law, or was it a misapplication of the finding of fact? David A. Moran: It was a... it was its legal conclusion-- William H. Rehnquist: Well-- David A. Moran: --that there had been no-- William H. Rehnquist: --but AEDPA doesn't say one way or the other. AEDPA doesn't use the term, legal conclusion. David A. Moran: --No. But it-- William H. Rehnquist: So what is your answer to my question? David A. Moran: --Mr. Chief Justice, it matters for AEDPA whether it's law or fact because then we're under (d)(1) or (d)(2). William H. Rehnquist: Right. David A. Moran: And so-- William H. Rehnquist: I'm asking you which one you... you want to be under, or perhaps you want to be under both. David A. Moran: --Well, it is our position that we win under either because even if it's a finding of fact, it's so unreasonable to say that there was no directed verdict of acquittal here, that we should prevail. But-- Antonin Scalia: Anyway, the Michigan Supreme Court didn't find the fact against you, did it? It just... I... as I understand it, it said it really doesn't... didn't matter to the Michigan Supreme Court. David A. Moran: --That's right. Antonin Scalia: It said even if he had made a ruling, unless... unless the jury had been advised, it was ineffective for double jeopardy purposes. David A. Moran: Oh, that's not quite right, Justice Scalia. What... what the Michigan Supreme Court ruled or stated was they agreed with the Michigan Court of Appeals and the dissenters in the Michigan Supreme Court that characterizing the trial judge's comments as an acquittal would require us to reverse Mr. Vincent's conviction. The Michigan Supreme Court actually said that. So they... and that was after a discussion of Smalis. Both the Michigan Court of appeals and the Michigan Supreme Court, after reviewing this Court's decision in Smalis, like so many other lower courts, have come to the conclusion that what a trial judge may not do, consistent with the Double Jeopardy Clause, is revisit a directed verdict at any point later in the trial. Stephen G. Breyer: All right. Suppose that what he says is, I direct the verdict. There are two defendants, Smith and Brown, and the judge says, I direct a verdict in favor of Smith. Oh, my goodness. I said the wrong thing. Brown. Okay? That's what happens. Are you saying the Constitution then just means that Smith is home free? Can't try him. David A. Moran: Not at all, Justice Breyer. Stephen G. Breyer: Because? And the difference between that and this is what? 12 hours? David A. Moran: No. The difference between that and this is that the ruling is not final. Here the ruling was unquestionably final. The judge-- Stephen G. Breyer: How? Why? David A. Moran: --I'm sorry? Stephen G. Breyer: Why, how? Explain that. David A. Moran: Because the judge announced his ruling. All the parties, including the judge, understood that under Michigan court rules, the judge could not reserve his decision, had to make it. He did so. He announced his decision. He said, okay. Is there anything else? Stephen G. Breyer: Reserve means, I take it, that you have to make a decision prior to the... the defendant putting on witnesses. David A. Moran: It... the... the court rule doesn't say that. The court rule says-- Stephen G. Breyer: When I read the court rule and then read the Federal rule, the difference in the practice is what they mean by reserve under the Federal rule where you can reserve... and it happens every day... is a district judge says, you move at the end of the plaintiff's case. I'm the district judge. I say I'm going to let it go to the jury. If the jury acquits, you're home free. If it convicts, I'll go back to it. That happens all the time. And that, it seems to me, is what the Michigan rule says can't happen in Michigan-- Antonin Scalia: --Well-- Stephen G. Breyer: --Is that... am I right? David A. Moran: --The Michigan rule... I... I don't... frankly, I don't know because the Michigan rule simply says the judge may not reserve his decision. Antonin Scalia: But surely it can't mean that if a... if a motion is made at quarter after 4:00 in the afternoon and the court customarily recesses at 4:30, that he can't wait until the next morning, so no testimony being taken in the meantime. David A. Moran: In... in that case that would... that might well be all right because he hasn't made a final decision. The problem here... we're not-- Anthony M. Kennedy: Suppose in that case the... the arguments by the attorneys end at 4 o'clock. The judge says, well, I'll let you know my order. He enters the... he tells his clerk at 4:30, enter the order dismissing the first degree charge. He then comes back at 8:30 in the morning, after having thought about it overnight. He tells the clerk, put in a new docket entry, order withdrawn, motion to dismiss denied. No one knows about this until quarter to 9:00. Defense doesn't even know about it. What result in that case? David A. Moran: --That's very similar to Lowe v. State in the Kansas case in which the Kansas Supreme Court, after this Court's decision in Smalis, concluded that a judge couldn't do that even though there had been no intervening proceedings. The judge had-- Anthony M. Kennedy: What interest is served by such a rule? David A. Moran: --An acquittal is final. That is the most fundamental rule of this Court's double jeopardy-- Anthony M. Kennedy: Well, but what... no one... no one relies on it. No one knew about it. David A. Moran: --But, Your Honor, this Court has said over and over again that an acquittal by a judge, in the context of a directed verdict, is equivalent to an acquittal by a jury. And the same-- Ruth Bader Ginsburg: But he... he didn't say, I acquit. The judge himself said this at the trial, he said, I didn't enter a directed verdict. I granted a motion. David A. Moran: --Yes. William H. Rehnquist: In the judge's own mind, he didn't acquit. Ruth Bader Ginsburg: And what you're urging is so different from how we approach trial rulings generally, and the point was made that in a trial, things go fast, judge... judges make rulings. It's very common, is it not, for a judge to make a ruling and then go home that night, maybe read over the daily transcript, maybe have her law clerk check a few authorities, and say, oh, my goodness, I made a mistake, the next morning. You couldn't run trials... I mean, the trial judges don't have the luxury that appellate judges do in that regard. They have to make rulings on the spot, and they can revisit them. You... you are suggesting that this rule, like no other, is... once the judge utters the words, motion granted, that's the end of it. David A. Moran: I'm not arguing that, Justice Ginsburg. I am taking the position that if the judge immediately corrects a mistake, as happened in People v. Vilt, a case relied upon by the petitioner, that's different. Ruth Bader Ginsburg: Well, what's different between-- David H. Souter: --Why? Ruth Bader Ginsburg: --saying at 4 o'clock in the afternoon, I grant your motion, and then overnight... and then they come back the next morning and the judge says, I'm not so sure. Prosecutor, tell me more about this. What's the difference of the overnight interval? Nothing has happened. The trial hasn't gone on. No witnesses have appeared. David A. Moran: But, Your Honor, if that was the law, then Smalis v. Pennsylvania is impossible to understand because in Smalis the prosecution there could have taken some sort of emergency appeal to the Pennsylvania Supreme... Pennsylvania Superior Court, got a ruling late that afternoon, and come back the next morning and resumed the trial. And in fact, the prosecution tried exactly that in a Tenth Circuit case, United States versus Eliason. Ruth Bader Ginsburg: I'm sorry. I don't follow you because I thought the judge in Smalis was firm throughout, that he never equivocated about what his ruling was. David A. Moran: Actually the judge in Smalis agreed to a reconsideration motion-- Ruth Bader Ginsburg: But then he came up just where he was the first time. David A. Moran: --Yes, that's... that's right. What I'm saying is, is that if double jeopardy doesn't protect... if there's no double jeopardy violation, if it can be revisited quickly, then Smalis is impossible to understand because Smalis then would simply come down to if you can do it quickly, if you can get an appeal to a higher court and a reversal quickly-- Antonin Scalia: Well, being... being revisited on appeal is different from being revisited at the trial by the trial judge. That's... that's the distinction that's being drawn by your opponent here. David A. Moran: --Yes, Justice Scalia. And... and the point of that argument is that it makes it completely dispositive as to whether there are other defendants remaining, as I believe Mr. Chief Justice-- Stephen G. Breyer: You don't have to go that far at all. I mean, Smalis is not a case where the judge changed his mind, I take it. And this is a case where the judge changed his mind. David A. Moran: --Yes. Stephen G. Breyer: So I'm back to my first question. The judge says, Smith, you're acquitted. And 10 minutes later he says, oh, my goodness, I used the wrong name. It was Brown. Now, you're saying they can't retry Smith? David A. Moran: If-- Stephen G. Breyer: My goodness, nothing at all happened in those 10 minutes. They were out drinking some water. David A. Moran: --If no further proceedings have occurred, and that is the line that almost all-- Stephen G. Breyer: All right. What... what proceeding occurred? No proceeding occurred. They adjourned for the evening. He comes back the next day and, at best, he says for you, well, I misspoke. I... I didn't grant the motion. So what's the difference whether... we're back to Justice Ginsburg. We're all pursuing exactly same thing which I'm having trouble with, and-- David A. Moran: --First of all, Justice Breyer, he said, I granted the motion. He took the position as a matter-- Stephen G. Breyer: --So does... so does my judge. I grant the motion. Smith... Smith is acquitted. David A. Moran: --And he came back the next morning and said I granted your motion. He took the position that it didn't count-- Stephen G. Breyer: And he says, I say I granted the motion. I acquitted Smith, but I misspoke. It was Brown I meant. David A. Moran: --Yes. Stephen G. Breyer: You're saying that in my case too Smith is home free. David A. Moran: If further proceedings have occurred, which unquestionably occurred here, then followed by an overnight recess, during a trial a defendant-- William H. Rehnquist: Which were the further proceedings? David A. Moran: --There were five pages of proceedings that are-- Stephen G. Breyer: What? You mean they spoke some more. David A. Moran: --No. On... on joint appendix pages 13 through 18, the parties litigated a number of other matters, including in which order will-- Ruth Bader Ginsburg: But they were all-- William H. Rehnquist: --But no... no evidence... no... no witnesses testified, did they? David A. Moran: --Not at that point, no. But what-- David H. Souter: There was nothing that... that was done to the defendant that the defendant himself did to his detriment. --We don't know because all we know-- Well, have we any reason to believe? David A. Moran: --We know that his attorney made decisions on matters such as who is going to go first, will the defendants be present for each other's juries, will witnesses be allowed in the courtroom, a sequestration order. He made those decisions at a point when his client had been acquitted of first degree murder. David H. Souter: No, but is there any reason to believe that those decisions would have been different if he had understood that first degree murder was going to be in the case? David A. Moran: We simply don't know, Justice Souter. It's a-- David H. Souter: Well, we don't... we don't know in the sense that there... there hasn't apparently been specific litigation to that effect, but is there any reason to suspect that the decisions would have been different? In other words, is there any reason whatever to... to think that there may have been detrimental reliance here? David A. Moran: --Yes. David H. Souter: Maybe there is, but what... what is it then? David A. Moran: Yes. Well, first of all, on those particular decisions, we don't know and it's impossible to reconstruct that at this point. What we do know is that during the overnight recess, Mr. Vincent and his attorney... as this Court noted in Geders versus the United States, an overnight recess during a trial is a critical time to make crucial decisions-- David H. Souter: No. I... I realize that, but by the time he departed for the overnight recess, he knew that the judge was going to take the matter up again the next morning. The judge had said so. David A. Moran: --That's actually not quite true as to Mr. Vincent. Mr. Vincent was removed from the courtroom before the prosecutor said I would like to make a brief restatement on first degree-- Ruth Bader Ginsburg: But his lawyer knew. David H. Souter: But his... his counsel knew. His counsel knew. David A. Moran: --His lawyer was still there. That's right. David H. Souter: Yes. So... so if... if he... if he relied upon there being no change in the ruling, he was doing so at his peril, was he not? David A. Moran: The ruling had not been taken back, though, Justice Souter. All-- William H. Rehnquist: No, the ruling had not been taken back, but the... the judge said, sure, I'll hear you, prosecutor, in the morning. David H. Souter: I'm always glad to hear people. He made it... he couldn't have made it more clear that he did not understand that he had come to a final conclusion on that motion, could he? David A. Moran: --What... all he agreed to do is hear more argument. He did... in no way indicate-- William H. Rehnquist: But surely that... that suggests that he has not finally made up his mind. David A. Moran: --It suggests it, but it... he certainly doesn't say it. William H. Rehnquist: No. David A. Moran: All... he makes a general statement-- David H. Souter: Well, as a betting man, would-- William H. Rehnquist: [Laughter] David H. Souter: --would you not assume that there might be a change as a result of what he had said before they recessed? David A. Moran: --If I had been in trial counsel's position, I wouldn't have known what to do because we have a-- Ruth Bader Ginsburg: Yes, you would. You would have defended your client as best you could, and you would know that you could not treat with security what the judge had said. If you did, you were endangering your client-- David A. Moran: --But-- Ruth Bader Ginsburg: --because the judge had signaled that he might reverse his ruling-- David A. Moran: --But-- William H. Rehnquist: --the next morning. David A. Moran: --As trial counsel stated the next morning, it was my impression that you made a firm ruling, judge. So-- Ruth Bader Ginsburg: Then at trial the next morning, if what you say about the overnight being so critical to the strategic planning, then counsel could say, judge, we plotted all this thing out, give me a recess so we can reshuffle the thing. At that point, if there was any detrimental reliance, the way to do it was to give back the hours that had been lost. Isn't that so? David A. Moran: --I don't know if that would be possible with a... with two juries. There were actually two juries in this case sitting around waiting for the defense to-- Ruth Bader Ginsburg: It wasn't requested, though. David A. Moran: --It... it wasn't requested because at the end of the hearing, in which the prosecution made his improved closing argument to the judge, there was no ruling. The judge simply said, I'm going to think about it. I'm going to take it under advisement. He didn't make the ruling until after Mr. Vincent testified. Antonin Scalia: These are due process problems that you're raising now, and I suppose we could always leave them to be resolved by further proceedings below, inquiry into whether there was any prejudice or not. But that doesn't go to the point that's before us here which is whether for purposes of double jeopardy, this... this terminates the matter. David A. Moran: I agree. This Court's precedents-- Antonin Scalia: So it's... it's no use arguing, well, he could have been prejudiced. Okay, he's prejudiced. We... we can take care of that. David A. Moran: --And-- Antonin Scalia: But that doesn't got to the double jeopardy question. David A. Moran: --And I've taken the position in the brief that we don't have to show prejudice. Under double jeopardy, the prejudice is-- Antonin Scalia: Right. Absolutely. David A. Moran: --is inherent in being subjected to post-acquittal fact-finding proceedings. Antonin Scalia: Not only do you not have to, it does you no good to. David A. Moran: I agree. Antonin Scalia: Right, okay. Stephen G. Breyer: But we still have good old lucky Smith who... who got off because-- William H. Rehnquist: [Laughter] Stephen G. Breyer: --five pages... of five pages of extraneous conversation went on with the... the judge and counsel. And I take it now you're going to say, yes, he got off. David A. Moran: Justice Breyer, yes. And... and the reason-- Stephen G. Breyer: Okay, okay. That's what I thought you would say. That's all right. That's fine. David A. Moran: --The rule from the Solicitor General's position would make it completely dispositive as to whether there happened to be other charges remaining, as in Smalis itself, and whether or not there happened to be other defendants. Stephen G. Breyer: That's... that may be true. That's why I'm nervous about the position. But still, you from your point of view, unfortunately, lose as long as Michigan was... was at least within the discretion that Federal law grants them in characterizing what happened here as not an acquittal. I'm right about that. David A. Moran: If they're correct that it was not an acquittal. Stephen G. Breyer: Well, not correct. They... they have a degree of... even under the law, that's... I mean, under the law section too. David A. Moran: I agree. But if you look at the trial judge's comments, he consistently maintains that he... he made a ruling. And ruling is actually the exact word from Martin Linen, that this Court has to decide whether or not the trial judge made a ruling. Ruth Bader Ginsburg: Mr. Moran, I'd like to get back to an AEDPA question, and that is, as I understand it, there is a division among lower courts on just how much leeway a trial judge has to take back a directed verdict. And if there is disarray in the lower courts, how can we say there's clearly established law in your favor? David A. Moran: Because what... what AEDPA requires is not to look at the decisions of the lower courts, but to look to see whether the decision of the Michigan Supreme Court was a clearly unreasonable application. Now, I should point out, first of all, on that issue whether a judge can take back a directed verdict, the Michigan Supreme Court did not rule against us, in fact indicated that it agreed with our position that a judge may not take back a directed verdict if he had... if he has actually rendered one. And the Michigan Court of Appeals ruled the same way. But if you look at the split of authority, it's a very striking split of authority. The cases that cite and rely upon Smalis on very similar situations where there is a directed verdict, a partial directed verdict during an ongoing trial, so the trial continues, and then the judge attempts to take back the directed verdict at some point later in the trial, those courts that have applied Smalis have, with one exception, held that the judge cannot do it. Those courts that have gone the other way have almost uniformly relied on a Second Circuit decision, United States versus LoRusso, which says that there is no problem with doing that because it does not result in a second trial. And what this Court could not have been more clear about in Smalis is that a double jeopardy is violated not only if a reversal of a directed verdict would result in a second trial, but if it would result in a continuation of the same trial. And that is why this case is constitutionally indistinguishable from Smalis. The only difference between this case and Smalis is that instead of going to a higher court, as was attempted by... in the Tenth Circuit in United States versus Ellison, what happened there is that the prosecution... there was a partial directed verdict, exactly as in this case. The prosecution ran across-- William H. Rehnquist: But you... that's assuming the... assuming the whole factual point at issue here, that there was a partial directed verdict. David A. Moran: --Yes. William H. Rehnquist: And in Smalis, there was no doubt about that. David A. Moran: Well, there was doubt as to what the judge had done. The Pennsylvania Supreme Court said it wasn't a directed verdict because it was a legal ruling and not a... not-- William H. Rehnquist: Well, but that... that was a very theoretical thing, whether as a matter of... when you're saying there's no evidence as a matter of law, that's a factual ruling or a legal ruling. David A. Moran: --Yes. William H. Rehnquist: I... I don't think that bears on our case. David A. Moran: No, and that is... and that is a distinction. That's why we have an issue one, Mr. Chief Justice, is... is, of course, we have to get past the issue of was there a directed verdict. Then we get to issue two. If there was a directed verdict, can the judge take it back? And that is where I maintain that this case is constitutionally indistinguishable from Smalis. On... on issue one, I... I just wanted to make a further point about whether this is fact finding or a legal finding. The Michigan Supreme Court itself did not regard what it was doing as fact finding. There was not the slightest indication in the Michigan Supreme Court's opinion that it thought it was engaged in fact finding. Nor did this Court think that it was engaged in fact finding in several cases in which this Court has examined arguably ambiguous district court transcripts to determine whether or not an acquittal had been granted, for example, Scott and even more clearly, Sanabria. In Sanabria, this Court had to wade through a difficult record to determine whether or not the district court had, in fact, granted a directed verdict on both theories, numbers theory and horse betting theory. William H. Rehnquist: Well, let me follow up on an earlier question of Justice Breyer's. Do you think that if this is true under the Federal system that it was a directed verdict, it must therefore be true under the... under an... under any State system? David A. Moran: Yes. I believe that follows immediately, well, first of all, from Maryland v. Benton which applies Double Jeopardy Clause to the States, but also from Crist-- William H. Rehnquist: Well, but the fact that... that that case applies double jeopardy to the States I don't think necessarily settles whether a particular State procedure is or is not a directed verdict. David A. Moran: --No. But it also follows from Crist v. Bretz in which this Court rejected a... Montana's attempt to declare that jeopardy doesn't attach until the first witness is sworn in a jury trial. And this Court said, no. Where... where jeopardy attaches and terminates is a matter of Federal constitutional law, and it concluded, therefore, that Montana must follow the Federal rule to that point which is that jeopardy attaches when the jury is sworn. And so this Court has consistently applied the same principles about jeopardy-attaching and jeopardy-terminating events whether the cases arise in State or Federal court. Antonin Scalia: Well, so the Federal rule is that it attaches when there's been a directed verdict, but it's up to State law when... when there's been a directed verdict. I mean-- David A. Moran: Your Honor, I find that-- Antonin Scalia: --there's nothing incompatible there. David A. Moran: --Justice Scalia, I find that hard to square with Martin Linen which teaches us that what a reviewing court must do is putting aside form, looking at substance to decide whether the trial court has found an essential element of the offense is missing. And here, the trial judge clearly stated that there is no premeditation been shown, that therefore second degree murder is the appropriate charge, that a docket entry that could not have been more clear was made to that effect on that day, March 31st, 1992, and then followed by at least five statements by the trial judge over the next 2 days explaining that he had made a ruling, that he had directed a verdict, come to a conclusion and made a decision-- Ruth Bader Ginsburg: He kept saying I didn't direct a verdict. He was distinguishing as between granting a motion. He says, I granted a motion, but I didn't direct a verdict. David A. Moran: --Excuse me, Justice Ginsburg. You're quite correct. He said, I granted a motion. I didn't direct a verdict. And his distinction was clearly one of law. He clearly believed that so long as the jury was not told, there was a distinction between granting a motion and directing a verdict. And that position is untenable after Sanabria versus United States and also Martin Linen where the... the United States made the same argument in Martin Linen, that as long as it's the judge after the hung jury declaring a... an acquittal, if it doesn't involve the jury in some way, it doesn't count. The same argument was apparently made in Sanabria and dismissed in a footnote that it was so obviously... so obviously contrary to Martin Linen. And so the judge never said as a fact... as a fact... I did not find absence of premeditation. He clearly found absence of premeditation, consistently admitted that that's what he had done, but simply believed, as a matter of double jeopardy law, wrong as a matter of double jeopardy law, that he could take back that decision. The Michigan Supreme Court's conclusion was contrary even under the criteria that the Michigan Supreme Court adopted, wanting to see certain formalities before they would conclude that a acquittal has been granted. That standard was met here. The Michigan Supreme Court itself acknowledged that a docket entry is exactly the sort of formality that they were looking for but then inexplicably failed to notice that there had been such a docket entry made in this case. Not inexplicably the State failed to include the docket entry in its appendix in violation of the Michigan court rules. That's why the Michigan Supreme Court was apparently unaware of the dispositive docket entry. John Paul Stevens: Wasn't that called to their attention in rehearing, though? David A. Moran: There was a motion for reconsideration filed, yes, Justice Stevens. John Paul Stevens: How do you explain their failure to grant rehearing? David A. Moran: Like this Court's denial of certiorari there-- John Paul Stevens: That's not a discretionary matter, I wouldn't think, in a criminal case. David A. Moran: --I... I believe it is. An appeal to the Michigan Supreme Court is a discretionary matter in the first place. And the denial of reconsideration is traditionally treated as a discretionary matter under Michigan law. John Paul Stevens: Even when there was an error of law called to their attention. David A. Moran: Well, it's an error in the record I believe. John Paul Stevens: Yes. David A. Moran: I... I can't explain it. It was a 5 to 2 vote for denial of reconsideration. I simply can't explain how they came to that conclusion. The bottom line here was, was Mr. Vincent subjected to post-acquittal fact-finding proceedings in violation of the Double Jeopardy Clause? Exactly as in Smalis, he was. Smalis... there would have been post-acquittal fact-finding proceedings-- John Paul Stevens: May I ask you another question? Assume it would have been an acquittal as a matter of Michigan law because of the... the docket entry. Would it necessarily follow that it was also an acquittal for purposes of Federal law? David A. Moran: --Yes, Your Honor. I don't believe that there has been any case distinguishing an acquittal, in quotation marks, for purposes of the Double Jeopardy Clause from any other sort of an acquittal. An acquittal is defined in Martin Linen and this Court's-- David H. Souter: So your syllogism is that if he was acquitted as a matter of Michigan law, a fortiori the Double Jeopardy Clause applies as a matter of Federal law. David A. Moran: --I believe he was acquitted for all purposes, Justice Stevens. I... I don't believe that one can profitably draw a distinction between being acquitted for one purpose or another. William H. Rehnquist: Thank you, Mr. Moran. Mr. Busch, you have 2 minutes remaining. Arthur A. Busch: Thank you, Your Honor. The respondent here has stated that the Michigan Supreme Court agrees with his position with respect to the second prong of AEDPA. In fact, the Michigan Supreme Court stated in its opinion at footnote 4... it made reference to the fact that it was actually not reaching the conclusion. It wasn't reaching a decision as to whether the judge could change his mind. The respondent's position essentially requires the people to forfeit the second prong of AEDPA. Even if the Court was wrong on its factual finding or unreasonable, the result of this case must be viewed within the filter of that statute which says that the law that they applied was reasonable. There are... he has cited several cases and we have several cases in the other direction, interestingly enough, including one, United States versus Baggett, which comes out of the Sixth Circuit itself, which says... in that case there were... three times the judge announced a ruling and then agreed to hold it in abeyance. In... in that case the Court said that... that... the appeal court said that they were free to change their mind... the judge was free to change their mind any time prior to the entry of judgment. So the courts... there is... there is no established precedent with respect to reconsideration, and we would respectfully say that alternatively this Court ought to find a rule that trial courts can reconsider where there has been no appeal and also... and we would argue that the-- William H. Rehnquist: Thank you, Mr. Busch. Arthur A. Busch: --Thank you. William H. Rehnquist: The case is submitted.

Warren E. Burger: We'll hear arguments in number 58, United States against the Book Bin. Mr. Strauss, you may proceed whenever you are ready. Peter L. Strauss: If I may just --Mr. Chief Justice and may it please the Court. Obviously, this case concerns the same legal questions and so I will be making a continuous argument in that sense, but if I may just a moment, correct a couple that I think a factual overstatement regarding the case just concluded. My understanding is that the stays which are in effect concerning the mail received by the mailbox in this case were consented to or at least not opposed by Mr. Fleishman on behalf of his client and -- well, he may have given a contrary impression. The original orders in this case came on as a result of unsolicited advertisement which the Post Inspectors received from the mailbox. Now proceeding to the Book Bin then I think my statement may be brief. Appellee advertises and sells through the mail and like the mailbox, a substantial number of publications of the character suggested by the advertising exhibit reproduced at pages 58 and 59 of the record. A Section 4006 proceeding was brought against the Book Bin alleging that one of these publications entitled Novels of France was obscene and on June 6, 1969, the government sought a Section 4007 protective order in United States District Court for the Northern District of Georgia. Appellees counterclaimed for an injunction forbidding enforcement of Sections 4006 and 4007. A three-judge District Court was convened and granted the counterclaim. The Court found that the procedures for examining mail possibly connected with the challenged publication were overbroad and that the procedures generally failed to meet the standards of Freedman versus Maryland. On the government's appeal, this Court noted probable jurisdiction on March 2 of this year. If I may go -- turn first and I realize Mr. Justice Harlan that your question regarding the scope of relief in this case remains open and is perhaps the most serious of the questions in this case, but I do want first to examine briefly the other procedures of Section 4007, the operative procedures as it were. The procedures that put in an operation because the scope of relief question is really shared with Section 4006. Section 4007 as I stated at the beginning of the prior case is basically a reference to Rule 65 of the Federal Rules of Civil Procedure. It entitles the government to get interim relief against the distribution of the magazines of this type or against fraudulent enterprises and circumstances in which such relief could be obtained under Rule 65. That means among other things that the proceedings cannot be ex-parte and therefore, the consideration, which principally I think animated this Court's decision or the concern I suppose, which principally animated this Court's decision in Kingsley Books and subsequent opinions construing that case as absent. In addition, there is the necessity of showing a probable cause in two respects. First to believe that the magazines are obscene and that would be a judicial finding and second a probable cause to believe that indeed, the government will be irreparably injured, that there is some need for emergency relief and Kingsley Books spoke to both of those issues. The Court said at page 440 of volume 354 of the report, “Authorization of an injunction pendente lite as part of this scheme during the period within which the issue of obscenity must be promptly tried and adjudicated in an adversary proceeding for which adequate notice, judicial hearing and fair determination are assured is a safeguard against frustration of the public interest in effectuating the judicial condemnation of obscene matter.” It is a break on the temptation to exploit a filthy business offered by the limited hazards of piecemeal prosecutions sale by sale of a publication already condemned as obscene. And I think Mr. Justice Harlan in his concurrence characterizing it accurately in his dissent rather in quantity of books, stated the grounds that were important to that decision and into the distinction of that decision that was made by this Court in the Market case -- excuse me, on the Marcus case. First, that the court could exercise an independent check on the judgment of the prosecuting authority at the point before any restraint took place, second that the restraints ran only against the named publication, third, that no extensive restraints were imposed before an adversary proceeding and fourth, that the New York code required decision within two days of the trial on the obscenity question. Now, the only issue regarding those four statements in this case I believe is the matter of time and it is the government's position basically that that question is adequately controlled by the power which a court of equity always retains to modify its judgment when subsequent events show that indeed, the person against whom a temporary restraint runs is being improperly or unfairly injured by the pendency of the proceedings by the continuation of the relief during a period of undue delay. In that respect, I would like to clear up some confusion which I think may exist regarding the relationship that we see between Section 4007 and 4006. 4006 in no event takes effect before a final administrative decision has been reached. Once a final administrative decision has been reached, it does take effect of its own force and without need for enforcement. The person against whom the order is entered may then seek review as was done in these cases essentially and the issue then is what is the affect of that petition for review. The government's position, principle position is that that petition for review operates to convert the Section 4006 order into what is in effect a Section 4007 order, an order impounding the mail for the duration of the proceedings to challenge the administrative decision. So that there would be no return of the mail once an appeal had been filed. Now, there might be in the intervening period some slight length of time during which mail would be returned or would in that sense and some -- Potter Stewart: And it's after the final administrative order and before the appeal during that period? Peter L. Strauss: That's right. During that brief period, the length of that period is in counsel's control and I am sure that if representations were made that an appeal would be taken that an appropriate stay would be issued. It takes time to transmit these orders after all from Washington where they are entered to the postmasters out in the field and if such a stay wouldn't be entered, I'm sure this Court and other courts would be quick to grant one. So that that is the necessary affect of an appeal. And now, we say in addition although we don't urge it but if the Court feels that incumbent upon it, it would not disturb the statutory scheme in view of the history of Section 4007 to say that the appeal has a more radical effect, that is that it suspends any impact whatever of the administrative order and leaves the government completely dependent on it's ability to get a judicial order under Section 4007. So that under that second reading, I think you were correct Mr. Justice Stewart in your question that there would be no burden so far as Section 4006 is concerned on the person subject to the order other than the burden of filing his appeal and seeing to it that the -- Potter Stewart: And then the -- it's your alternative -- your talking about your alternative construction of the statute? Peter L. Strauss: No. Now, I'm talking about Section 4007 and which need not -- the government I think need not wait. I don't mean to suggest that the government cannot invoke Section 4007 before there has been an administrative decision. Potter Stewart: And the whole purpose of it was that as I understand your brief? Peter L. Strauss: No, the purpose of it was to keep the -- Potter Stewart: Stop matters during the time necessary for the administrative procedures to present -- Peter L. Strauss: That's right, and therefore, I think it's certainly appropriate for the government to seek such an order as it did in the Mailbox case when the hearing begins. Potter Stewart: Yes. Peter L. Strauss: That of course will be before the decision -- Potter Stewart: Yes. Peter L. Strauss: -- in the particular case. It was a month before the decision. Potter Stewart: Exactly. Peter L. Strauss: So that there will be possibly a period of time during which there is not yet any administrative decision. There could not yet be any administrative restraint, but there maybe a judicial order outstanding which does impose a restraint of impounding the mail. Potter Stewart: And of course that too is appealable? Peter L. Strauss: Of course that's appealable and maybe stayed. It requires as I have said before that the judge have the specific material before him and that he inspect them and determine that there is at least probable cause to believe that they are obscene. And indeed, that was precisely the procedure. If the Court will see we have reproduced it at the rear of our brief in this case. The temporary restraining order which preliminary injunction which were in fact entered in the Mailbox case and the Court will see that they refer specifically to the seven magazines which were at issue here. And I may say too, Kingsley itself is probably sufficient authority or a sufficient demonstration of the need for this sort of pendente lite relief, if it were necessary to give anymore, the question arose with regard to the specific provision of Section 4006. Before passage of Section 4007, the Postmaster General attempted to forge his own impoundment authority. He was ultimately unsuccessful in the Court of Appeal, but in the interim a motion for stay came before Mr. Justice Douglas. He wrote a lengthy opinion which is reported and commented on by the appellees here. What's notable about that action I think is that he did not interfere with the impoundment that he acknowledged that there are many situations. One of the burdens of litigation may be putting things aside for the time in order to preserve the status quo and that was Standard versus Olsen which is reported in the Supreme Court report Volume 74, at page 768. So as I say, the principal things to be said here are that there is this need to -- that the government must show probable cause. It must show a need for emergency relief. There is complete judicial control over the period of time during which the order remains in effect. It is at once appealable on the issues of probable cause and need for emergency relief. There is the constant possibility of modification and we submit that all of this would be sufficient to establish the correctness of the procedure even if what were involved was some form of censorship, but of course that's not the case. It's a simple postponement. The mailbox man for all we know, or the Book Bin may and for all we know has continued to solicit orders and those orders come in and are kept and at the conclusion of the period of time, they may indeed be received. There is nothing to prevent the Mailbox or the Book Bin from re-circulating their lists with a letter saying “Perhaps you didn't receive some orders that you sent to list. We want you to know we are in this trouble.” While in many industries, advertisement of troubles like that might not be to commercial advantage, it seems to me at least conceivable that in this industry, it would be. There is a further point that Mr. Justice Harlan has averted to in some of his decisions and that is that there is involved in these materials here unlike movies that communicate ideas or political speeches that have a certain timeliness still in the materials of the sort involved in this case really carry no urgency of that sort. Whatever, they are essentially timeless as the Court knows from the descriptions of the materials. There is against that balance to the need of the government for relief if the scheme of the statute is to be upheld. Now, if I may turn to what I've called the Lamont issues which I think I would agree were -- are the more troublesome in the case. Still it does seem to me that they were principally settled by the decision of this Court in Donaldson because as to this question, the way in which an order interferes or may interfere with a person's incoming mail, it seems to me the effect of this order is indistinguishable from the orders which were -- from the mail which was involved in the Donaldson case. As the Court may recall -- Potter Stewart: The interference with incoming mail, with who's incoming mail? You're talking about the target of these proceedings or the -- Peter L. Strauss: The target of the proceedings. Potter Stewart: --or the incoming mail of the members of the public who send the order for this material? Peter L. Strauss: The only mail that this order operates on is incoming mail are the target of the proceedings. Potter Stewart: Well, except it prevents the members of the public who order this material from getting it and to that extent, it interferes with their incoming mail? Peter L. Strauss: Then I should say directly operates upon. It doesn't prevent them from getting it from some other source or at their neighborhood bookstore. Of course it doesn't in that sense suppress or remove the materials from the market. It does remove them from this one particular market. In this respect, as I say, I think the order is essentially of the same impact and it's essentially indistinguishable from the situation in Donaldson. I might remind the Court and that while it maybe unusual, nonetheless in Donaldson the Court was dealing indeed with a magazine. Fax Magazine, Reed Magazine and these are magazines with subscription lists. These were magazines which undoubtedly had persons writing to them for proper purposes. As the case started out, the order entered against the magazines in question was quite broad. The Court was evidently, properly I would say alarmed at the breath of that order. It heard argument once and then set the case for re-argument specifically on the question of the breath of order. In the interim, the order was modified and the Court then concluded that with that modification, a modification which essentially narrowed the orders so that its predictable impact was principally on the transactions in question that the order was not overbroad and indeed was proper. The problems here stem from the necessity of honoring the privacy of the mail in the sense that the government may not open a person's domestic first class mail out of his presence and that means that if the statutory remedy is to be applied, it must either be applied against all mail incoming to the person which we don't assert would be proper and do not attempt or there must be some provision made for an inspection procedure and the provision for an inspection procedure is what at issue here. I don't think it is irrelevant to point out that here as distinct from a case like Lamont, we are not dealing with an innocent party whom the government presumes to protect. But we are dealing with an individual who has either been adjudicated or whom it has been adjudicated that there is probable cause to believe that he is using the mails for an illegal improper purpose and it is upon the basis of that adjudication, a specific adjudication directed to him, directed after adversary proceedings fully consonant with due process that this remedy is applied. Now, the order of course is a restraint in some respects but that is a restraint which can readily be reduced in its impact. Commercial publishing houses, commercial mailers regularly use special forms of address in connection with their order blanks. Where that is done only envelopes addressed to that special form of address are intercepted and detained or returned as the case maybe and again, that was the situation in Donaldson. As a practical reality, there are not terribly many situations where an individual would receive private mail or anything of that sort at a commercial address which would be used in this kind of situation. There are for the specific provisions made for “For waiting” mail without interference which appears from its cover not to be related to the specific publications which have been adjudicated. And in sum as I think is demonstrated by the Donaldson opinion, there maybe a problem in particular cases about an order being overbroad. I think there is not a problem about the statute necessarily being so. Even the inspection itself when it occurs I might point out, it need not and in fact probably is not in the realities of this situation to be a reading of the person's mail as such. We know that the way these publishing houses operate is on a cash basis. They do not accept orders COD. Consequently, any letter which when opening was found to include no check would immediately be a candidate for passage on. There's no necessity to see whether it's an order or not what knows it on the basis of this type of commercial reality or usually, there will be order blanks or something else of the sort which would also serve in identifying function. Speaker: What distinction do you see between a judicial finding that something is obscene or not or rather judicial finding that there's probable cause to believe in some instances? Peter L. Strauss: Well, I think there are some issues of fact that might be explored. There maybe some questions of social utility, maybe special evidence that could be introduced at one way or another on various, the elements to the court's obscenity standards as they have evolved. But I must say that certainly in this Court's practice, it does seem to come principally down to a matter of inspecting the materials themselves and to the extent that that is the test, of course, there s no difference. Speaker: Constant judgment needs a little more time to (Inaudible). Peter L. Strauss: That's right and I think any conscientious judge in that situation would take more time rather than issue the order. I might say that again, that there are substantial interests on the government's side warranting this procedure. Whatever certificates of age there maybe in the mail, it is nonetheless impossible to know whether in fact the person is saying that he is 21, is 21. If you sell this material over the counter, you can at least make some obvious sorts of differentiations along that score. There is the need I think recognized by Mr. Justice Harlan's opinion in Memoirs for cooperating in the sense, in a sense with the states who are inhibiting the spread of this material which all states of the union find obnoxious and within constitutional bounds properly so. And as Kingsley itself recognized, that cannot effectively be done without some form of restraint. There is the matter of post office involvement indeed with what is in offense under the laws of the United States and the time for the prosecution of a criminal case again, there's a time during which the material may continue to be sent. In sum, I believe this is a remedy which is as narrow as possible under the exigent circumstances of the act, something which this Court indicated in the Burrstone case, it would consider as a proper consideration in passing unconstitutionality of regulation in this field. A few concluding observations that I'd like to make regarding this Court's decision in Stanley and the meaning that ought to be given to it. I think the government's approach or understanding of that opinion maybe reflected not only in Griswold versus Connecticut but perhaps better than elsewhere in the language of Mr. Justice Harlan's dissent in Poe versus Ullman. We are not presented simply with the moral judgment to be passed on as an abstract proposition. A secular state is not an examiner of consciences and must operate in the realm of behavior of overt actions and where it does so operate, not only the underlying moral purpose of it's operations but also the choice of means becomes relevant to any constitutional judgment on what is done. I believe that Stanley was a decision about the choice of means for regulating obscenity and as such, the government has no qualms with it. I do not believe as the Court said. It was not that the opinion was amended in any way to interfere with general government regulation in this particular area, but someone suggested that the Roth opinion has proved the debacle. I find it hard to imagine remembering back to what was available on the news stands and through the mails in 1957 in considering what is there now that is was a debacle at least for anyone on the side of the fence represented by the person who made the observation nor do I think that the issue with social value can be equated with monetary value. No one suggested and surely the authors of the Roth opinion understood that obscenity was handed out for no compensation because people wouldn't pay for it. Obviously it has some social value in that sense, but I do not think any value which has been suggested for it amounts to the type of value which the Court was discussing in Roth, a value connected with ideas. Counsel has made a great deal of our brief in Rowan. Those quotes were taken widely out of context. They were principally quotations which the government itself had made in its brief. One for example was from our statement of facts at page six where we quoted a member of the House of Representatives who was explaining his Bill and other was from the Harvard Law Review and so forth. The principle thing to be noted about the government's position in that case is that that deals with the statute which has much wider impact than on materials which this Court has held may constitutionally be designated obscene. And in that wider area where the individual may very well believe and many individuals do believe that materials this Court has held are not obscene and nonetheless objectionable. The mail holder is given a quite proper control over what comes into his home. Thurgood Marshall: Mr. Strauss, 2542 in your brief, a judicial officer, who is he? Peter L. Strauss: The judicial officer is the judicial officer of the post office. Thurgood Marshall: What's that? Peter L. Strauss: It's a position very much like similar positions in the Department of the Agriculture and other places. It's defined by the postal laws Section 308 of Title 39 shall perform such quasi judicial duties that the Postmaster General may designate and he is the agency for the purposes of the requirements of the Administrative Procedure Act, it passes on. Thurgood Marshall: Does he have any judicial experience? Peter L. Strauss: No more than a trial examiner for the National Labor Relations Board. Thurgood Marshall: They don't call them judicial officers? Peter L. Strauss: But serve the same. Thurgood Marshall: I was just expressing the fact that he'd never act as judicial officer. Now, I'm trying to find out what's the difference between him and the censor except the title? Peter L. Strauss: Well, I think a censor deals strictly with these materials. 80% of the judicial officer's time is spent passing on contractual disputes involving the building of post officers. Thurgood Marshall: Well, is that what he does? Peter L. Strauss: And that's a lot of what he does, yes. He passes on issues of second class mail ability, any administrative dispute that may come up within the department and have to be settled. Speaker: And so he is a judicial officer and he's expert in adjudicating -- Peter L. Strauss: That's right, precisely. Speaker: -- the job of adjudication in matters of administration. Peter L. Strauss: Precisely. Finally, I think it's necessary to say that the government does indeed assert that it has the right not to have to deliver through its mails some of the materials that people assert the right to send through it. That may ultimately be what's at issue on this case, although I thought it had been settled by Roth, it seems to me there is an overriding interest here because carriage through the mails is not simply a neutral act. It involves the government in this business and in some sense puts a stamp of government approval if not government subsidy on it. That is why I'm quoting from an editorial in The London Times which was written on a somewhat different issue, but I think it's perfectly apt. “That is why those who were of the opinion that material passes the balance of decency are justified in denouncing it in circumstances like these, it is not because they personally are affronted, they need not be so but because it shifts the limits of the publicly permissible sexual display and shifts them in a direction that they have reason to believe it is hurtful to the values they uphold and to the well being of their society. I should like to reserve the remainder of my time. Warren E. Burger: Very well, Mr. Strauss. Mr. Smith? Robert Eugene Smith: Mr. Chief Justice and may it please the Court. The factual circumstances in the case involving the Book Bin are slightly different than the factual circumstances involved in the Mailbox. And as to those differences and as not covered by my brother here, I would like to make mention of those facts. First if it please the Court, a particular publication is involved -- the particular publication involved is just one, it's called Models de France. The advertising brochure sent out to a postal inspector, I call the Court's attention to on page 58 and 59 of the appendix, has a notation at the top right hand corner and the date 2/4/69, February 4, 1969. Now, in the context of this particular case, what thereafter occurred is nothing for four months. And then in June, approximately June 6, a motion is filed -- a petition is filed, to complain before the judicial hearing officer as well as a motion for expedited hearing because of the tremendous danger suggested in this particular regard. And then almost instantaneously, a motion is made under 4007 to have the court declare a probable cause that this material is obscene. But yet four months went by under the scheme as it operated by the government's own exhibit as put into this particular case. And, we point out to the Court, the material, the magazine Models de France which in 19 -- which was the subject of the 1969 proceedings was no more candid than the magazine that this Court found not obscene applying the Redrup concept in exclusive in the magazine case involving exclusive or titled Central Magazine Sales versus United Sates in October of 1967. So this is two -- almost two years later -- a year-and-a-half-later, there is an attempt to take one magazine out of an entire brochure and we suggest that these are separate factual circumstances. In this particular context, what occurred is a US Attorney sent a letter to the Book Bin, telling them that he was going to move for a temporary restraining order and counsel appeared at the time and shortly thereafter filed a motion to dismiss the application as well as asking for a three-judge court to declare the constitutionality. It is true in this case, there was no time any mail stopped because of the action of counsel in this particular regard. And in that context, we say this is the difference between this case and the other case. Now, we divide our argument into several parts. First is the concept of whether the administrative proceedings here are appropriate under the First Amendment, dealing with presumably protected publications. We have, as we suggested, a post office proceeding that does not have an adversary concept before a judicial officer, a court, that what occurs is that the publication is displayed and an affidavit is obtained by the general counsel, the materials are then submitted to the hearing examiner who then dockets a complaint and goes forward from there. Now, in this instance, there is no expertise suggested in this hearing officer as you've heard, 80% of his time is spent in matters relating to contracts for post office buildings that the proceedings at that time, there's no time period within which the hearing must be convened. There is no time period as we would suggest is required under the decisions of this Court in Title Film Corporation and in Freedman within which there must be a prompt judicial determination and we say that in this regard, this is a failure in this context. Then there is no obviously no jury in the context of the administrative proceedings that can determine whether or not something is or is not obscene. And we suggest the publications in the Mailbox case were determined by that same hearing -- acting judicial officer to be obscene as Mr. Fleishman indicated counsel that these were comparable to the materials in Bloss and we suggest they were also comparable to the materials in the Central Magazine case. So in that particular context, we say that they are not -- these are not appropriate procedures. Now, in the -- in the context of a 4007 order, we suggest that there are several deficiencies in that particular Section which are special to the Book Bin case. First is what is probable cause or what is the probable cause test? There is no guide left as to what is the probable cause in the context of a 4007 hearing because in that instance, are we talking about an opportunity -- a reasonable opportunity to be heard? Is one day or two days sufficient? This is not a kind of situation like Carroll versus President and Commissioners of Princess Anne County wherein a speech was about to be heard that almost the next evening or that evening and that there was emergency concepts involved and there was no opportunity -- there could've been an opportunity to be heard and an immediate hearing could've been held. In this context, they waited as we suggested from February until June and then they moved for an immediate hearing and we say that unlike Carroll versus President and Commissioners of Princess Anne County, there was no overriding emergency and in this regard what is probable cause consistent with due process? Is it one or two days notice to go in and be prepared to demonstrate one's case? In this particular regard, we also go on to the fact that there is no reasonable construction that could obtain to save what we consider to be an unconstitutional mail block requiring an affirmative action on the part of the addressee under the doctrine suggested by this Court in Lamont. The order, yes, suggested could be drawn very narrowly and that a postal inspector could be delegated to sit down with the addressee on a day by day basis, sort through every piece of mail there to determine whether any of the material alleged to be obscene could be determined -- could be released to them and only that material which was not would be released. So, we suggest that this in effect creates a chilling effect or self censorship which we feel this Court has condemned on numerous and prior occasions that the trial court or the three-judge court suggests that under the broad wording of the statute, that under a 4770 order that the United States could obtain a court order detaining all incoming mail. However, as has been suggested by the Solicitor General, that could be somewhat reduced. We get in part two the concept that this Court, as Mr. Fleishman has discussed, Mr. Strauss has discussed with respect to Roth and its applicability in this regard. We are -- in essence, we say that an individual has a right to receive material which to him is for his amusement value or for the conveyance of ideological content. The individual asserts that right by ordering merchandise. Now, it is not suggested, we say that this brochure necessarily goes to an unwilling or to an unsolicited individual and he then responds by ordering a magazine. There are a variety of ways that this man can get on the mailing list so to speak. He can buy a publication that is put out by a firm. He may have an advertisement in there and he may write and say “Send me your brochure” and the brochure is send in response to this and in kind than the publication is sent to him after he orders from the brochure. And this is in effect the part of the people like the Book Bin or the Mailbox trying to follow what is suggested or what has been suggested by this Court in the treatment of the Redrup cases. Whereas are we dealing with an individual who wants to avoid exposure to adult type materials and if this is the unsolicited intrusive mailing. But if John Doe, postal inspector wants to go in a Mailbox list and he wants to buy adult type of material from the Mailbox and ultimately as this Court recognized in Rowan, there is an exchange of list in every commercial enterprise in mail order that if ultimately, what occurs is that this list is exchanged and he then gets an advertisement from the Book Bin or whatever. He is not in the category of the individual who says “I wanted to avoid confrontation with this kind of material.” He is not that particular person. So we're not -- it's not a solicitation. It's just sent out widespread which seems to us to have been suggested in the Stanley case when the Court took particular pains as this counsel reads it, to point out in a footnote a quotation from the various cases and said, “The Court found it” -- this is on page 548 of the lawyer's edition, “The Court found it unnecessary to reach the constitutional questions presented by the claimant, but did notice the belief that the statement in Roth concerning the rejection of obscenity must be interpreted in light of the widespread distribution of the material in Roth.” And again later in the particular case, this Court -- in the Stanley case, this Court has reiterated what it was said in Mr. Justice Brennan's opinion in Roth, the door barring federal and state intrusions, this area cannot be left ajar. It must be kept tightly closed and open to slightest crack necessary to prevent encroachment upon more important interest. And at that particular point, there was a footnote which led us back ultimately to Breard versus City of Alexandria would seem to be an expression of the kind of intrusion that we were talking about. That certain material could be disseminated. Mr. Justice Stewart has suggested in Ginsburg versus U.S. that unless the material is hardcore, certainly there should be some intrusive quality about the nature of it's dissemination before it should be prohibited, at least that's as this counsel has read the particular point. So we're not -- we're in this particular position that we are not engaged in a widespread indiscriminate circulation. We have an individual who by one form or the other has gotten onto a mailing list, who was indicated by his prior correspondence or such that he wants to receive adult type material. The characterization by Mr. Strauss as this being, you know, that these people are in a particular industry or they're involved with the monetary aspect, everyone is involved in the monetary aspect. In this regard, these people have suggested they want to receive something. They want to order. They write to the Book Bin to get it. The post office department comes in and decides that they shouldn't get it for one reason or the other a particular publication which was known to them to be at least comparable to the material before this Court in the Exclusive case, not even as candid as the material in the Bloss case, later determined by this Court I think on June 1, 197 -- Speaker: Does the record show how somebody did someone -- Robert Eugene Smith: No sir. The record is silent as to that particular point. Speaker: The silence was denial of obscenity on (Inaudible) this case? Robert Eugene Smith: There was no factual inquiry conducted by the Court in reaching the question in the abstract Your Honor. But I was answering as I thought Mr. Justice Blackmun's questions earlier regarding the manner of how someone might get this and how someone may respond to it in this particular regard. Speaker: Well, do you agree really neither of these cases are we concerned with the subsequent questions as to whether this material was banable as obscene. There as I understand it with the federal government or the states, we don't reach in any of that in this case. Robert Eugene Smith: Your Honor the -- Speaker: This is simply to the procedural question as to whether this is a permissible procedure or not, am I right about that? Robert Eugene Smith: Your Honor that is correct. The Court did not get into the application of the law in this particular context and -- Speaker: There's really nothing, but a Freedman issue, whether Freedman controls this case or these cases, or whether it doesn't? Robert Eugene Smith: Yes sir, I reluctantly admit that is correct. And we suggest that it's not just Freedman, we suggest also it's a Lamont issue, Your Honor. Speaker: Yes. Robert Eugene Smith: And those two factors are the factors that we concern ourselves with. The burden for instituting judicial review at the conclusion of a post office determination is on the addressee. The burden is on the censor. This we suggest is in violation of Freedman. There is no time period within which this administrative process must be concluded. We say -- we suggest that that is in violation of the Title Film Corporation which was in essence bottomed on Freedman versus Maryland, that the burden of carrying persuasion certainly by virtue of an administrative determination of obscenity would then be on the person seeking to reverse or change that particular thing in the judicial review. And we say that these things are inaccurate. And as to 4007, there is no standard as to determination of what probable cause is and the probable cause issue, once the Court finds probable cause whether it's to the -- under any standard could something be said to be obscene under any test could something be said to be obscene. If the Court follows that as to the issue of probable cause, then we have something tied up, we have correspondence tied up, we have obviously a chilling effect we suggest Your Honor on the exercise of First Amendment freedom and it is the public that in great measure is deprived. There is in this instance, if the Court will look at the particular exhibit quoting in this publication on page 58 and 59 of the appendix, the material in Models de France, the publication on the cover is indistinguishable from any of the other material. So what we have is an invidious one magazine proposition. We're coming in one magazine and we're going to do it on one magazine. It doesn't necessarily have to stop there and we suggest that in the area of First Amendment rights that there has to be as this Court has said so many times a very strict -- Warren E. Burger: I'm not so sure I follow that the last argument. Robert Eugene Smith: Yes sir. Warren E. Burger: We can only hear one case at a time, can't we? Robert Eugene Smith: Yes sir, that's correct but--I don't get your point. Are you saying they singled you out for some -- Robert Eugene Smith: No sir. I'm not saying they singled us out. They singled a publication out that this was a pilot procedure we suggest, Your Honor, that the court undertook -- the post office department undertook in two different jurisdictions. One in California and one in Atlanta, Georgia and -- Warren E. Burger: So you're not suggesting anything impermissible about that, are you? Robert Eugene Smith: Oh! No sir. I'm suggesting that the government can argue today one magazine is all that's involved and all of those publications. We say that if this procedure is allowed to go on unchecked as it is presently constituted that it is the beginning of and could be the beginning of and could have deleterious results upon again the public's right to receive access to material which is in this instance certainly not hardcore pornography by any definition that has been suggested by the Solicitor General and times gone by and as been set out in the margin by Mr. Justice Stewart in the Ginsburg versus US dissent. So we say that as to the Lamont issue, we feel it controls as written and we feel certainly that the Freedman factors as argued control as written. Thank you. Warren E. Burger: Thank you. Mr. Strauss, I'm not quite sure how much time you've got. Peter L. Strauss: Well, I have only three very short points to make. Warren E. Burger: Two minutes, two minutes actually. Peter L. Strauss: The first is this was as I think counsel just stated, a test case and as test cases sometimes do it had many flaws. It was brought in the hope of getting some kind of conflict with the proceedings on the West Coast, and I don't think it should be evaluated as an ordinary case of how the department would proceed under the statute. The second point I should make in connection with this issue of time -- Potter Stewart: What do you mean by that Mr. Strauss, I don't want to slow you but -- Peter L. Strauss: Well -- Potter Stewart: -- why shouldn't we consider this as the way the department would ordinarily proceed under the statute? What did it do, it shouldn't have done? Peter L. Strauss: The -- let me put it this way. The question whether that was a case in which had it come to an issue, the government could have demonstrated that it was entitled to the extraordinary relief of Section 4007 is not an issue which was decided, and should not I think be assumed here. Potter Stewart: You're talking about the nature of the -- Peter L. Strauss: That's right. Potter Stewart: -- magazine. Peter L. Strauss: That's right. The nature of the magazine and the nature of the prosecution, I suppose that a showing that four months had elapsed and the government hadn't shown that there was any emergency -- Potter Stewart: Yes, that too. Peter L. Strauss: -- would tend to persuade you that there was no need for this extraordinary relief. Potter Stewart: I just didn't understand you. Peter L. Strauss: Alright. Regarding the question of the amount of time these proceedings might take, I think there's one further observation I might make. I've already suggested that this is always under judicial control. I would also suggest as I believe we have in a footnote to our brief that it is indistinguishable from the question how long shall a criminal prosecution take. This Court has never suggested that once and indictment is brought in an obscenity case, that case must be listed -- lifted on the calendar over cases involving prosecutions for murder or interstate bank theft, of the like. Similarly here, simply because an administrative complaint may have been filed, that fact alone doesn't introduce any particular compulsions of time, although the existence of a Section 4007 order might. Finally, I should just like to remind the Court of footnote 22 in the interstate circuit opinion again, in which the court did indicate I think clearly that the simple burden of an administrative act to avoid default was not the kind of burden which was involved in the Freedman holding. On these grounds, we suggest that the decisions in both of these cases must be reversed. Thank you. Warren E. Burger: Thank you Mr. Strauss. Peter L. Strauss: Thank you. Warren E. Burger: Thank you. The case is submitted.

John G. Roberts, Jr.: We'll hear argument first this morning in case 05-85, Powerex Corporation versus Reliant Energy Services. Mr. Frederick. David C. Frederick: Thank you, Mr. Chief Justice, and may it please the Court. In 1988, the Government of British Columbia created Powerex to perform a variety of public functions including the marketing of surplus hydropower generated by development of the Province's natural resources pursuant to bilateral agreements with the United States. The Ninth Circuit, however, denied Powerex its rightful status as an organ of a foreign State entitled to remove this case from State court to Federal court. Before addressing the appellate jurisdiction issue, I'd like to highlight briefly the two key errors by the Ninth Circuit in rejecting Powerex's organ status. First, the court articulated the wrong test for determining an entity's status as an organ of a foreign State. The factors the Ninth Circuit found dispositive are inconsistent with the FSIA; and second, the court overlooked crucial evidence of Powerex's public functions that are the best indication of its sovereign status. The British Columbia Government receives and distributes the proceeds from Powerex's operations, supervises Powerex through BC Hydro, subjects Powerex to provincial laws not applicable to private companies and grants Powerex special benefits including exemption from taxation. David H. Souter: Mr. Frederick, are you going to get to the 1447(d) problem? David C. Frederick: Yes. Let me address that now. The court's... the district court's remand order was appealable because it was not issued under 1447(c). Ruth Bader Ginsburg: The district court thought it was and when we did, the district court said I have no authority in... under... over any of these people. So back it goes. David C. Frederick: The district court made two mutually exclusive statements, that remand was proper and that it lacked subject matter jurisdiction. Because of that inconsistency, the court of appeals-- Antonin Scalia: Removal. Removal was-- Ruth Bader Ginsburg: --talking that... where are these statements? Antonin Scalia: --You said remand was proper. That's the-- David C. Frederick: --Sorry. That removal was proper under the sovereign removal provisions of 1441(d) and 1442(a). It also then said it lacked subject matter jurisdiction. David H. Souter: But at the point it was acting it was remanding, and its basis for remanding was not that it thought the removal had been proper; the basis for its remanding was that it said it lacked jurisdiction over three of the other cross defendants. David C. Frederick: But immunity was the basis of the district court's thinking that it had to remand. David H. Souter: It may have been, leaving aside the question of whether it was right or wrong, it may have been wrong. But what it thought it was doing it seems to me is fairly clearly remanding for a jurisdictional reason. David C. Frederick: And what this Court's cases say, Justice Souter, is that the remand has to be a ground cognizable under 1447(c). John G. Roberts, Jr.: Those cases are all... all based on Thermtron. You don't have any doubt that Thermtron would come out the other way today, do you? David C. Frederick: I certainly do-- John G. Roberts, Jr.: --in light of, in light of the statutory language as it exists now? David C. Frederick: --Mr. Chief Justice, the Thermtron rule has been reaffirmed no less than four times by this Court, notwithstanding two statutory amendments. It has been reaffirmed and stare decisis on the basis of statute is the strongest form of stare decisis. So I do-- John G. Roberts, Jr.: But stare decisis on the basis of statute is kind of a weak basis when the statute's been changed. David C. Frederick: --Mr. Chief Justice, the Thermtron rule was reaffirmed earlier this term in the Osborn case, has been reaffirmed in prior cases lead... from the time it was decided even through statutory amendments. Our submission is that if Congress intended to change that rule, it could have done so clearly. And we note that the Respondents here don't ask for Thermtron to be overruled, and it is clear from the amicus on their side, that the only way you could rule in favor of the Respondents in this case would be to overrule Thermtron. Ruth Bader Ginsburg: But Thermtron was such a far cry from this case. In Thermtron the district judge said yes, I have jurisdiction but I'm just too busy, so I'm going to toss this case back to the State court. David C. Frederick: But here, Justice Ginsburg, the court did have jurisdiction because removal was properly effectuated once the entities that we moved were identified correctly as sovereigns, either foreign sovereigns in the case of BC Hydro, or Federal sovereigns in the case of BPA. Antonin Scalia: --But we go into that question all the time, 1447(d) is a nullity. I mean, if in every case you're going to be able to appeal whether indeed there was lack of jurisdiction, you're going to be able to appeal every case. David C. Frederick: No, you're not, Justice Scalia, and here's why. Immunity is not a ground for remand because it is not a precondition for a removal by a sovereign. It is a separate freestanding issue. It is a status determination that determines whether removal is proper by those sovereigns. Antonin Scalia: That would be fine if 1447(d) said that there is no appeal so long as the basis for removal was proper, but that's not what it says. David C. Frederick: But if in Thermtron the court, the district court had said my docket is too busy, I therefore lack subject matter jurisdiction and remand under 1447(c), I don't think there's any doubt that the courts would look beyond the label given. Ruth Bader Ginsburg: I don't think the court said in Thermtron, so therefore, I have no subject matter jurisdiction. David C. Frederick: I'm speaking hypothetically, Justice Ginsburg. My point is that the label the district court attached here was the wrong label, and that's why the court of appeals to satisfy-- Ruth Bader Ginsburg: Why? Why was it wrong when with respect to the sovereign parties, the district court said I have... these people are totally immune from suit; therefore, I have no jurisdiction over them. David C. Frederick: --Because it is inconsistent with the notion that remand orders have no preclusive effect to remand a case on the ground that the sovereigns are immune, and force them to relitigate their immune status in State court. That is precisely why Congress enacted these sovereign removal provisions. David H. Souter: Then what you are really arguing for is, in effect, a separate rule, and that is that 1447(d) has an exception when we are dealing with foreign sovereign immunities. David C. Frederick: That's our backup submission, Justice Souter. You do not need to reach that if you agree with our principal submission and-- David H. Souter: But the trouble with the principal submission, it seems to me, is that we have said that even if the district court has come to an erroneous conclusion about jurisdiction, if it understands that it is making a jurisdictional ruling, that is not appealable. David C. Frederick: --But Justice Souter, it did so. The case... the cases in which the Court has said so have always been grounds... jurisdictional grounds cognizable under 1447(c). Immunity from suit is not such a ground, because the purpose of having the removal provision on the basis of status is to allow the Federal courts to decide the immunity status. If the court sends the case back to State court on immunity grounds, it does not have preclusive effect in the State courts. The State courts will be obliged to relitigate sovereign immunity status and there will be no recourse except through appeal through the State court-- Antonin Scalia: Well, you're into your backup argument now. David C. Frederick: --No. Antonin Scalia: The backup argument that you're now making, that not your principal argument. David C. Frederick: No, Justice Scalia, that's not our backup argument. Our point is that in this case, the district court had jurisdiction by virtue of the successful removals, which everybody conceded were correct, that the label that it attached, immunity is subject matter jurisdiction, is not a label for a ground recognized in 1447(c). So it was appropriate for the court of appeals to exercise appellate jurisdiction to determine whether or not the remand was a mandatory remand under 1447(c) or a discretionary one of the type this Court has recognized in the Cohill case. Ruth Bader Ginsburg: Did you request... when the question of Powerex... authority over Powerex was before the district court, did you request that the district court give you a 1292(b) order before the court remanded the case, so that you could have gotten the case... the question up on appeal? David C. Frederick: I don't believe that we did, Justice Ginsburg. This case was remanded. A motion... motions for clarification were subsequently brought. But a 1292(b) order was not requested by Powerex. Ruth Bader Ginsburg: Because that would have taken care of it if the district judge agreed to delay the remand to allow this question of law to be determined by the court of appeals. David C. Frederick: It is certainly the case that in searching through the docket entries, you'll discover that there was a holding by the district court of the remand, which is in itself an unusual procedure. But the point that is important here is that even apart from that, when the court had jurisdiction pursuant to the removal provisions, it did not lose subject matter jurisdiction by finding the immunity claims upon the part of the Federal and foreign sovereigns. And it is their theory that the district court never had subject matter jurisdiction, and that has to be wrong because it conflicts with the purposes behind the removal provision to give the sovereigns the opportunity to litigate their immunity defenses in Federal court. Antonin Scalia: They don't care whether it had subject matter jurisdiction or not. It's not an essential part of their case. Their case is even if it did, it mistakenly thought it didn't, and remand it, end of case. David C. Frederick: Their submission in this Court, however, is that there was no subject matter jurisdiction. Antonin Scalia: That's their backup argument, I think. David C. Frederick: Well, their backup argument should be rejected by the Court as wrong. Stephen G. Breyer: If in fact it goes back to the State court and you litigate it, you lost, can you raise as a point of appeal that you did not receive two things the statute guaranteed you? One was a determination in the Federal court that you're an organ of a Federal State, and second, a bench trial? David C. Frederick: Justice Breyer, there's no provision-- Stephen G. Breyer: No, but could you? David C. Frederick: --By the time the appeals in the State court would have been exhausted, the very benefits-- Stephen G. Breyer: No, I'm just asking could you, yes or no. I-- David C. Frederick: --We would certainly make the argument. Stephen G. Breyer: --Yes, okay. Now if you lost in the State court, could you then use that as a basis for asking this Court to accept jurisdiction? And if they... if we did, we took it and we heard the case, reverse, and send it back for the proper tribal under the statute? David C. Frederick: Justice Breyer, I would not want to foreclose any arguments that we might try to make; but let me point out to you that in the years that it would take to march through the State court system, Powerex, as a sovereign, would be denied its right to have a bench trial-- Stephen G. Breyer: See, what I'm getting at is whenever there's an erroneous remand, the practical problems that you raise are present. And they're awful. I don't deny them. I mean, they're right there in the statute, it foresees them. So I wonder, is there any difference in this case from every case where the remand is erroneous? David C. Frederick: --I do think foreign sovereigns are different, and Congress intended to treat-- Stephen G. Breyer: In terms of the legal right to get the trial to which the law entitles you on your view of the law, there is no difference. David C. Frederick: --The foreign sovereign is entitled to a bench trial. It is entitled to other procedural protections with respect to treatment of garnishment, other-- Stephen G. Breyer: And you would get those eventually, it would just have to happen. David C. Frederick: --It would be after... it would be-- John G. Roberts, Jr.: But that's purely... pure question begging. I mean, the whole issue on the merits is whether it's a foreign sovereign or not. And you can't assume that you're correct when the remand provision or the provision barring appeal when it's been remanded doesn't care whether you're correct. The idea is, you can get a correct determination in State court through up to review by this Court eventually, as you can in Federal court. There's no reason to assume that the Federal court is the only place you would get a correct determination. David C. Frederick: --But Mr. Chief Justice, the point of having Congress enact these removal provisions and to ensure jurisdiction in the federal court for sovereigns on the basis of their status is entirely to vindicate those rights and interests. If Powerex were sued for not-- Antonin Scalia: It's... it's the same with diversity jurisdiction. You can make the same argument. There's nothing distinctive here. This statute says that in a foreign sovereign immunity case you have a right to be tried in Federal court. Fine. But the statute also says that if you're a defendant in a diversity suit, you have a right to trial in federal court. And I don't know why this is any more demanding of an exception to 1447(d) than is ordinary diversity jurisdiction, where Congress has said you're entitled to trial in federal court. David C. Frederick: --Diversity is different, Justice Scalia, and here's why. When a case is removed on diversity grounds, the court of appeals... the district court is obliged to examine the bases of diversity. That is what the court's removal duty is. When a foreign sovereign removes a case, the district court's duty is to determine is this a foreign State within the meaning of the FSIA. If it is, I have jurisdiction. John Paul Stevens: Mr. Frederick, may I just follow up on Justice Breyer's question? It seems to me that your answer suggests that you have two bites at the apple because you... all the way along, you might win. And if you won, then it wouldn't matter. If you lose, you always have the argument that you've made here, let's go back and start over again. David C. Frederick: Justice Stevens, I don't think we would win at all in that circumstance because we would be forced as a foreign State to litigate in State court contrary to Congress's will. John Paul Stevens: Yes, but-- David C. Frederick: Whatever arguments that may be preserved-- John Paul Stevens: --But you might win that litigation. It's not impossible, is it? David C. Frederick: --It is certainly not impossible, but the point-- John Paul Stevens: And if you lose, you always have a point on appeal and may start all over again later on. David C. Frederick: --It is unclear to me, and I'm not sure that I've seen any of this Court's cases that would suggest that the denial of that kind of procedural right would be grounds for reversing a State court judgment. And our position is that Congress intended to protect the bench trial right, the immunity defenses of a foreign sovereign, because the organ status questioned-- Ruth Bader Ginsburg: Did anybody in this case... did any of the Defendants in this case request a trial by jury? David C. Frederick: --I don't recall whether the Defendants do, but it is clear that the Plaintiffs would be entitled to a jury trial-- Ruth Bader Ginsburg: And have they asked for it? Has any party asked for a jury trial? If not, that part of the case seems academic. David C. Frederick: --Well, the case has settled, Justice Ginsburg, prior to the formal invocation of trial procedures, and so-- Ruth Bader Ginsburg: The case is settled? David C. Frederick: --As explained in the cert petition papers, the case is on appeal in the State court system on objections to the settlement, and it will not be mooted during the course of this Court's action on the case. But the invocation of jury that would be done normally just before trial has not been an issue that's been presented. Ruth Bader Ginsburg: Well, that's different than it is in the Federal courts. You have to... can't wait to the eve of trial to demand a jury. David C. Frederick: Well, what the Plaintiffs here assert is that they would be denied their right to jury trial, and I presume that that means they intend to ask for one and to perpetuate that request. Our position, as we explain in a footnote in our reply brief, is that they have a jury trial right as against Duke and Reliant; they do not as against the foreign sovereigns that they have sued. So at root, the case is about the kind of comity and dignity that the courts of the United States will accord to foreign sovereigns. If Powerex were sued on the basis of non-commercial acts, it would not be entitled to have its immunity defense vindicated if the district court is held to have no jurisdiction, notwithstanding the proper removal under 1441(d). I'd like to save the reminder of my time for rebuttal, please. John G. Roberts, Jr.: Thank you, Mr. Frederick. Mr. Hallward-Driemeier. Douglas Hallward-Driemeier: Mr. Chief Justice, and may it please the Court: This Court has recognized repeatedly that the bar on appellate review in 1447(d) applies only to remands under 1447(c). This Court has held that the courts of appeals have authority to decide whether a remand order was, in fact, one within the authority of 1447(c). In fact, just this term in Osborn, the district court remanded the case on the basis of 1447(c) for purported lack of subject matter jurisdiction. Ruth Bader Ginsburg: Osborn made it very clear that was an extraordinary case where Congress had explicitly ordered two conflicting things. One, it said no remand of a case of this type, and then it said no review of remands. So the Court was as clear as it could be that only when you have those conflicting signals does that court... does that case have any application. Douglas Hallward-Driemeier: Your Honor is absolutely correct. Osborn concerned a particular kind of categorical exception from 1447(c). Our argument is that as a categorical matter, the basis of remand in this case was not one within the scope of 1447(c). That although the District Court termed the sovereign immunity of the defendant's jurisdictional, it was not jurisdictional in the relevant sense. And this Court held precisely that in the Oliver American trading case. There, a case removed by Mexico was dismissed by the district court on the basis of its immunity and the district court certified that holding as a jurisdictional decision immediately appealable to this Court. Yet this Court looked beyond that label attached by the district court and held that sovereign immunity is not jurisdictional in the relevant sense because it does not limit the authority of the Federal courts qua Federal courts but rather is a general rule that would preclude suit in State court as well. Likewise, under 1447(c) it is not a basis to remand that the defendant is immune. When Congress authorized sovereign defendants to remove cases to Federal court to vindicate their immunity, it did not intend that when the district court upheld that immunity, it would be remanded to State court which would be free to disregard the Federal court's decision. Stephen G. Breyer: One technical question. The same one. I would to be... imagine it is a diversity case. Imagine that a Federal court erroneously remands it. A trial gets up to this Court. And we say it was diverse. It shouldn't have been remanded. Now what's... is that like... can that happen? I guess. And is the remedy then wipe out the State proceedings, go back to Federal court? What happens? Has that have ever been a case like that? Douglas Hallward-Driemeier: Yes. Stephen G. Breyer: What happened? Douglas Hallward-Driemeier: The Missouri Pacific Railway case holds that even this Court, on review of a State court judgment following remand cannot review the remand order itself. It can review issues of Federal law that were decided by the State courts on remand but-- Stephen G. Breyer: And it is called, the case, Missouri-- Douglas Hallward-Driemeier: --Missouri Pacific Railway case. John G. Roberts, Jr.: Counsel, what... what do you do about 1447(e) which says that if after removal joinder might defeat subject matter jurisdiction, the court can deny joinder or permit joinder and remand the action. In other words, you have got subject matter jurisdiction but the statute contemplates it may... later... later you may lose subject matter jurisdiction and you can remand it there. And I suppose that that needs to be interpreted in pari materia with (c) so that the remands would not be subject to review. It seems to me the same situation here. You have got allegedly subject matter jurisdiction. It is later defeated, and it is remanded. Why shouldn't that be covered by (c)? Douglas Hallward-Driemeier: What, what's notable is that Congress enacted 1447(e) at the same time that it amended 1447(c). It provided in 1447(e) for an authority to remand in a particular instance where the court lost subject matter jurisdiction post-removal. It had of course been the rule since this Court's decision in St. Paul Mercury Indemnity, that post-removal events did not defeat the removal court's jurisdiction; and in the statute it was made explicit that 1447(c) authorized remand only when the case was removed improvidently and without jurisdiction. And when Congress amended the language in 1998 to make clear that non-jurisdictional defects in removal had to be raised immediately or were forfeited, it at the same time... and added the language, or changed the language in the second sentence that raises problems for our argument; at the same time, it added 1447(e) to provide, as I said, a particular authority to remand based on post-removal events that would have been unnecessary if, as Respondents urge, 1447(c) was intended to confer general authority to remand on the basis of post-removal events. John G. Roberts, Jr.: But you don't have any doubt that a remand under 1447(e) would be covered by 1447(d), do you? Douglas Hallward-Driemeier: No. And the courts of appeals that have considered that question likewise hold that a remand under 1447(e) is right in pari materia with (d) although the courts seem to be split on whether the decision to allow the joinder is a separable decision appealable under Waco or not. But... but that issue is not presented. But what is significant is that had Congress intended by the amendment of 1447(c) to authorize for the first time remand on the basis of post-removal events, 1447(e) would have been unnecessary; and yet, the legislative history, the 1447(e), makes clear that Congress believed that in the absence of that provision, the Court would have been limited to two alternatives. Authorize the joinder... or deny the joinder, or dismiss the case. Antonin Scalia: How is that relevant here? Where is the post-removal event? Douglas Hallward-Driemeier: The post-removal event here is the recognition of the defendant's sovereign immunity. Antonin Scalia: Well, that's not an event. That's... that's an epiphany, it's not an event. [Laughter] Douglas Hallward-Driemeier: Well, according... well, apparently the district court viewed it as a post-removal event that deprived it, or defeated, divested-- Antonin Scalia: Very strange meaning of event. Douglas Hallward-Driemeier: --Well, I... Your Honor-- Antonin Scalia: I mean the sovereign immunity didn't exist from the outset. Nothing changed. Douglas Hallward-Driemeier: --But... but the district court's order is clear. And it is absolutely correct in this regard that removal jurisdiction existed at the outset. So the court does not lack removal jurisdiction. The reference in 1447(c), second sentence to "lacks subject matter jurisdiction", refers to lacks removal jurisdiction. And in fact, this Court used that shorthand repeatedly in the Kircher decision to describe 1447(c), lacks removal jurisdiction. This Court-- Antonin Scalia: When did it say that? I really find it very hard to accept that argument, when its says... you know... it doesn't use lacks removal jurisdiction, that's what it means. It is such an easy thing to say. Douglas Hallward-Driemeier: --Well, the Court has to go back to the history of the statute, how it's evolved. Clearly pre-1998, authority to remand was only if it was removed without jurisdiction. And so the question is when Congress changed the language to lacks subject matter jurisdiction, did it mean lacks removal jurisdiction? Which it-- Ruth Bader Ginsburg: Under the... under the district court's view, would there have been original jurisdiction against Powerex? Douglas Hallward-Driemeier: --No, it would not have. But that's because of the peculiarities of the difference between original jurisdiction under the FSIA, section 1330(a), and removal jurisdiction under the FSIA. Whereas original jurisdiction depends upon a conclusion that the defendant is not immune, Congress conferred removal jurisdiction whenever a foreign sovereign is defended. Anthony M. Kennedy: Then can you-- Douglas Hallward-Driemeier: Likewise in 1442(a), which was about the Federal-- Anthony M. Kennedy: --Can, can you tell me, if the Petitioner does not prevail here, the case goes back to the State court. Can the immunity argument be raised in the State court? Douglas Hallward-Driemeier: --The immunity argument could be raised in State court. That's what this Court held in Kircher. But the defendant would be forever denied its right to a bench trial under Federal law. That right is limited to suits in the Federal courts by its term; 1441(d)-- Anthony M. Kennedy: In other words the State court couldn't say well you know, this district court was wrong; there's really immunity under the Federal statute. The State court can't hold that? Douglas Hallward-Driemeier: --The State-- Anthony M. Kennedy: Because then you'd have constant... eternal shuttling back and forth, that's why. Douglas Hallward-Driemeier: --The State court could reconsider Powerex's status as a foreign sovereign, but it wouldn't have many, if any, implications in the State court because Powerex isn't claiming immunity in this case. It's only invoking the procedural benefits of the FSIA which include that the case be litigated in the Federal court before a judge rather than a jury. And it would be forever denied the benefits, those important procedural benefits of the statute if this Court doesn't uphold review of the-- Ruth Bader Ginsburg: Well, we don't know-- Anthony M. Kennedy: In other words, the... the Federal determination bars the State court from redetermining that there's immunity? That the State court can't say, "Federal court, you're wrong"? Douglas Hallward-Driemeier: --The issue of immunity of Powerex was never raised in this case. It can review the question of whether it is an organ of the State it but it cannot review the remand determination that Powerex can never be granted the procedural benefits of Federal foreign order bench trial. Thanks, Your Honor. John G. Roberts, Jr.: Thank you, Counsel. Douglas Hallward-Driemeier: Mr. Simon. Leonard B. Simon: Mr. Chief Justice, and may it please the Court. There are two reasons, independent and sufficient reasons why there is in appellate jurisdiction in this case. The first most narrow and simple reason to vacate the decision below for lack of jurisdiction, is to follow this Court's precedents which accept the district court's remand order for what it is and what it says it is, a remand for lack of subject matter jurisdiction under 1447(c), unremovable under 1447(d). That is a simple direct route to that result. There is a second approach suggested by a lot of the briefing and some of the argument Your Honors have heard this morning. And I want to lay it out briefly for the Court. And it is that, as the law professor amici have suggested, there is some amount of confusion in the lower courts, I might say with due respect, evasion of 1447(d) in the lower courts, by judge-made exceptions to 1447(d), created by some but not all of the courts of appeal. And the Court could clear out some of this underbrush, mooting many of the issues that Mr. Frederick and the that Solicitor General have raised. Thermtron after Carnegie Mellon, addressing the question Justice Kennedy raised in his concurring opinion, in Things Remembered versus Petrarca, Thermtron does not say what many of the lower courts think it does. Thermtron does not say what my adversaries say it does, because Thermtron has been partially overruled by Carnegie Mellon. The notion that the only proper remand is a 1447(c) remand is ancient history after Carnegie Mellon, and therefore the notion that the only remand covered by 1447(d) is a remand under 1447(c) is also ancient history. Congress has given us a simple and strong message, which is when we're disputing the forum, when the parties in a case are legitimately and in good faith disputing forum, State court versus Federal court, Congress has said take one shot at it, let an Article III judge determine whether the forum is State court or Federal court, and move on to the merits. Stephen G. Breyer: Well, what, what reason would Congress have for wanting a system that says... and there are many, many, many people in the United States who would like to sue Pakistan. They would like to sue China. They would like to sue Russia. There are all kinds of places they would like to sue. And why would Congress want to have a system that says to those countries, you can come into Federal court and get your claim adjudicated, whether it is really you, China a; but by the way, if the Federal judge makes a mistake, there you are in Mississippi, Alabama, Illinois, any one of 50 different states? In front of juries, the very thing that we gave you this statute so you wouldn't have to do. Now what would their theory be? Leonard B. Simon: It-- Antonin Scalia: Can I,... I'm not sure it is even that he made a mistake. It is even worse than that. If he gets it right and finds that you are a sovereign-- Leonard B. Simon: --Let me try to answer it-- Antonin Scalia: --you can go back to State court. I mean, that's even worse. He gets it right. Leonard B. Simon: --Let me try to answer both questions. The problem is whether he gets it right or wrong, we spend two years in a court of appeals. But Your Honor, you're assuming there's an immunity issue in this case. With due respect, my adversaries are arguing someone else's case. There is no immunity claim in this case by Powerex. There is one petition, one petitioner. Stephen G. Breyer: They were saying they were an organ of-- Leonard B. Simon: They were saying they were an organ. Stephen G. Breyer: --Yeah, and therefore they are immune unless... unless they fall within an exception. And it may be they do. Is that not right? Leonard B. Simon: No. They conceded that they fell within the exception. Stephen G. Breyer: Well, I'm saying, that's how the statute works. Leonard B. Simon: Right. Stephen G. Breyer: But I take it if you win this, it's precisely the same, in respect to a person who has total immunity. Leonard B. Simon: No. Stephen G. Breyer: Why not? Leonard B. Simon: I would disagree Your Honor. Stephen G. Breyer: Why not? Leonard B. Simon: A party who has total immunity-- Stephen G. Breyer: Yeah. Leonard B. Simon: --Would have removed the case the same way-- Stephen G. Breyer: Yeah. Leonard B. Simon: --And it would have presented two arguments to the district court. It would have argued number one, we are a foreign sovereign; maybe it wins, maybe it loses. And number two. We are immune. Stephen G. Breyer: Yes. Leonard B. Simon: There is a solid line of cases that suggests the decision on immunity... first of all let me say, I think it is somewhat far-fetched that a party that would actually be immune, say the King of Saudi Arabia, would end up being in this third lowest category of foreign... purported foreign sovereigns and end up in the position Powerex is in. But if it did, in other words we have three categories. We have immunes, we have non-immunes who got Federal court, and then we have would-be foreign sovereigns like Powerex, who end up in State court. And I'm suggesting for a party to fall from the first category to the third in front of an Article III judge-- Stephen G. Breyer: And a Judge makes a big mistake-- Leonard B. Simon: --Makes a big mistake. Stephen G. Breyer: --China comes in-- Leonard B. Simon: Right. Stephen G. Breyer: --And says of course you're China. And then it signs a remand order. Leonard B. Simon: I would submit, Your Honor, the question has never been addressed by this Court. The lower courts suggest that that is a collateral order. The immunity issue, not the remand issue. We actually now have a Waco type case. Stephen G. Breyer: No. Well, after all... if you're going to say, you say that one is reviewable on appeal. Leonard B. Simon: The immunity-- Stephen G. Breyer: Is it or not, in your view? Leonard B. Simon: --In my view, the immunity issue, but not the remand is reviewable on appeal-- Stephen G. Breyer: Fine. And now all they want here is the organ issue reviewed on appeal. Leonard B. Simon: --Right. And the difference is-- Stephen G. Breyer: And what's the difference between the one and the other? Leonard B. Simon: --The difference is that the immunity issue is reviewed on appeal because there is a line of court of appeal cases... a majority, not a unanimous majority, never blessed by this Court... which suggests that immunity is so important, don't need a lawyer, you don't go to court, you don't say a word, you don't spend a dollar, you walk away... so important that you are entitled to an immediate-- Stephen G. Breyer: Okay, and you agree with that? Leonard B. Simon: --And I agree with that. Stephen G. Breyer: Fine. Then why is it in your opinion that the immunity thing is so important that they get this collateral appeal, but the organ thing is not so important since all, what turns on that is whether they're going to have their non-jury trial. Leonard B. Simon: Well, I want to come back non-jury trial and answer Justice Ginsburg's question because I don't think she got the right answer. But the reason it's more important is this is, as Justice Scalia said, like a diversity decision, this is a litigation who sells power in the Pacific Northwest and admits that it competes with Enron, Duke, and Reliant, and it is disputing whether it belongs in a State court in San Diego or the Federal court across the street in San Diego, leaving aside the jury issue. And that is precisely the kind of dispute that Congress suggested in 1447(d) and its predecessors, which have been on the books for more than 100 years, ought to be done once. What do they say, one and done? Is that what they say in the district court? Samuel A. Alito, Jr.: You're saying this all turns on our assessment of the strength of the interest in remaining in Federal court? Is that what it boils down to? Leonard B. Simon: No, it turns on the strength of getting an immediate decision on the immunity question. The immunity question I think is a question of an entirely different nature than the question of forum. In the-- Ruth Bader Ginsburg: The immunity question, the immunity question is the same in State or Federal court, because the statute as it's written, any foreign sovereign, China, whatever, is as immune from State court jurisdiction as it is from Federal court jurisdiction because Congress said so. But with respect to the commercial enterprise, Congress said, we're going to give you a Federal court and we're going to give you a judge trial. That doesn't apply to State courts. Leonard B. Simon: --That's correct. But Congress said, we're going to give you a Federal forum and a bench tribal if you convince us that you are an agency or instrumentality of a foreign State. This, this corporation Powerex failed to make that convincing showing. Having failed to make that convincing showing, again, they are debating in the appellate courts and tying litigants up for two, five years over whether this case should be litigated in State court or in Federal court. Ruth Bader Ginsburg: There was a sovereign party who said: I'm out of this; I have suit immunity. And that was the B.C.-- Leonard B. Simon: B.C. Hydro. Ruth Bader Ginsburg: --What happened to B.C. Hydro? Because as I understand the district court sent that party back, too. Leonard B. Simon: The district court found that they were immune, properly followed the law, but determined because it believed it had no subject matter jurisdiction that it should then stop at that point, that it should just walk away from the case and remand it, over the vehement disagreement of B.C. Hydro and the parallel vehement disagreement of the Bonneville Power Administration. The Ninth Circuit when it erroneously took the appeal on the remand also clarified or straightened out that issue. Ruth Bader Ginsburg: Yes, but it couldn't... if you are right, then the Ninth Circuit never should have touched this case. So what happens to the three parties, two U.S. parties, one British Columbia, who are entitled to suit immunity? Leonard B. Simon: Well, what's happened so far is nothing, which might tell us that in the practical world when a Federal district judge says that B.C. Hydro is immune and then remands a multi-plaintiff, multi-defendant, multi-cross defendant case to San Diego Superior Court, it is exceedingly that the San Diego Superior Court will reconsider the immunity. But if it did-- Samuel A. Alito, Jr.: But could it? Leonard B. Simon: --I suppose it could, but if it did that matter is subject to appeal and subject to ultimate certiorari review in this Court. So I think we're talking about a frolic. Samuel A. Alito, Jr.: I thought the argument you were making a few minutes ago, if I understood it correctly, was that B.C. Hydro would not have been barred by 1447(d) from taking an appeal to contest the remand; is that correct or not. Leonard B. Simon: I think B.C. Hydro could have taken a collateral order, a collateral order appeal. Samuel A. Alito, Jr.: Whether it's a collateral order or not just goes to whether it falls under 1291. It doesn't speak at all to the issue of 1447. Leonard B. Simon: B.C. Hydro could have attempted to appeal the immunity decision under a series of decisions which suggest that immunity is so important that it ought to be decided right then. Samuel A. Alito, Jr.: The difference between that immunity and Powerex's status is what? It's simply the fact that there's a stronger interest in allowing immediate appellate review, Federal appellate review of the determination of the remand of a party that claims to be a sovereign as opposed to Powerex's status as an organ? Leonard B. Simon: Among several other things. There is a stronger interest in that, and we are not debating about the forum. Again, we have the Kircher case from last term saying State courts are perfectly capable of resolving this issue. That is a quotation actually from the Missouri Pacific case. Samuel A. Alito, Jr.: If we think that Powerex, that there's a strong interest in having Powerex remain in Federal court if it's entitled To that under the Foreign Sovereign Immunities Act, that would be suffer to get around 1447(d)? Leonard B. Simon: I think Justice Scalia was correct to say there is just as strong an interest in a diversity case in having a New York corporation trying to escape-- Anthony M. Kennedy: But I'm having, I'm having the same problem as Justice Alito and Justice Breyer. Can you say in just a few sentences the difference between the case where there is sovereign immunity, China, the China hypothetical, and this case where it's organ immunity? Leonard B. Simon: --Yes, if I could-- Anthony M. Kennedy: You're telling us that one is more important than the other, but there's no textual basis in the statute for us to make that distinction. Leonard B. Simon: --I think there are two differences, so if I could. One is textual and one is important. Let me start with the textual difference. The textual difference is that 1447(d) speaks to remands, and so to the extent the district court remanded the matter to State court the remand is untouchable on appeal or by mandamus because of 1447(d). And if the foreign... if the foreign relations body, lobby, doesn't like that, if the State Department doesn't like, that they can go to the Capitol and get that fixed quite easily. There are half a dozen exceptions to 1447(d) for class actions, for Native Americans, for civil rights cases, and they can get their own exceptions. So to the extent what the trial court did was remand, it is untouchable. That is my textual answer. It's a remand,-- i.e. Waco, in which the court says the remand is untouchable, the dismissal of the unnecessary or indispensable party is reviewable. So what I would say is, although the remand is untouchable, the denial of immunity... and that's why I kept saying collateral order; I apologize if that confused you, Justice Alito. I meant that line of cases about going straight up even though the case was continuing. While the case continues in State court, where it belongs under 1447(d), it would appear under this line of collateral order cases that the denial of immunity per se could go up on its own-- Anthony M. Kennedy: I'm asking why is denial of immunity for sovereign status different from denial of organ status giving you a right to a bench trial, etcetera? Leonard B. Simon: --Possibly, possibly this court would decide that question the other way. But-- Stephen G. Breyer: We have this very old judge like me. China is there. And he says: This isn't China; Formosa is China. So he says remand. So there we are, China is now in the Western District State Court for Illinois and they're suing them for a lot of money. Now, you said, I thought, before that where that happened, and they wrongly denied immunity, they could, China, appeal in the Federal system. I thought you said that. Leonard B. Simon: --Yes. Stephen G. Breyer: All right. Leonard B. Simon: But not the remand. Stephen G. Breyer: What? Leonard B. Simon: But not the remand. Stephen G. Breyer: All they want is a definitive appeal that this is really China, all right. Now, can they do that, yes or no? You said yes. So I thought Justice Kennedy's question was, if they can do that, why can't Powerex appeal in exactly the same way on the question of whether they're an organ. What's the difference? Leonard B. Simon: The first difference is what I said in response to Your Honor's question was I think they could do that under some cases from the courts of appeal. I know they can't appeal the remand because we have an act of Congress which-- Stephen G. Breyer: I don't care. I don't call this an appeal of a remand. What this is, it is an Appeal of the determination precedent to remand that Powerex is not an organ. Leonard B. Simon: --Well, Justice Breyer-- Stephen G. Breyer: That would make them just as happy, I believe. Leonard B. Simon: --Justice Breyer, think about a multi-party case and maybe my answer will be clearer to you. In a multi-party case my position is the remand stands, the case goes back to Missouri or Mississippi or wherever your hypothetical was, but at the same time, I do believe that the potentially immune party, which is not here in this courtroom today, the potentially immune party, could seek to review of what is a dispositive ruling. Remember, that's a dispositive ruling. They win the case. That's very different than a venue ruling. David H. Souter: Regardless of how they would get up on it, assuming they could get up on the immunity question, our series of questions is why do we draw or why should we draw a distinction between immunity and federal bench trial? And your answer is, I take it, immunity is dispositive; Federal bench trial is not? Leonard B. Simon: Immunity is dispositive and Federal bench trial is not... and is no different from the day to day decisions district courts make all the time about the choice between a State court and a Federal court in the area of remands and removals. Ruth Bader Ginsburg: Immunity, suit immunity, is you can't be sued anyplace, not in State court, not in Federal court; you can't be sued, period. But now it is admitted that you can be sued. That's not in dispute in this case, right? Leonard B. Simon: That's correct. Ruth Bader Ginsburg: So the only question is where. Leonard B. Simon: And that is my core-- Ruth Bader Ginsburg: The question is if-- Leonard B. Simon: --Excuse me. That is my core point, that Congress told us when the only question is where, we stop after one level and we move on to the merits. John Paul Stevens: Can you help me with-- Leonard B. Simon: I would like to answer your question about a jury, but I think I interrupted Justice Stevens. John Paul Stevens: --I just want to be sure your position. Assume that there is a remand that was improper and cannot be appealed under your theory and the Powerex argues all along, I was entitled to a Federal forum and a non-jury trial. And the State court says no all the way up. Can they file a petition for certiorari saying, we had a Federal right that was denied us, not the remand but our entitlement to a bench trial? Can they petition for certiorari at the end of the State proceeding in your view. Leonard B. Simon: Other than the jury question, I think the answer would be no because of 1447(d), because I think 1447(d) would suggest that that's an appeal of a remand. But again, you're asking questions that I believe have not been addressed by this Court or even lower courts. John Paul Stevens: I'm just wondering what your position is. Leonard B. Simon: A clever enough lawyer I suppose could argue that at that point that we're no longer challenging the remand, the remand has happened and been completed and the trial has taken place; we're now simply challenging the results. And maybe that clever lawyer would win the day. David H. Souter: And in effect he would say... I mean, I assume what the clever lawyer would say is, you, State court, cannot try me at all. The feds can do what they want about remand and it gets back here. But because I'm entitled to a bench trial, you cannot try me at all. Isn't that the argument? Leonard B. Simon: Oh, I think in State court a clever litigant could argue all these points over again, because 1447(d)-- Antonin Scalia: But his clever opponent would say-- [Laughter] --that what 1447(d) means is that you can be tried in State courts. That's precisely what it says. David H. Souter: And ultimately when the two clever parties got to the State supreme court, they would have these two opposing issues and ultimately if we granted cert this Court would decide it, wouldn't it. Leonard B. Simon: --This Court would ultimately decide it and they would ultimately decide questions such as whether the jury or, to put it the other, the bench trial issue has been preserved. Stephen G. Breyer: Why not say, depending on the clever lawyers, or non-clever as the case may be, why not just say Congress intended that you do get an underlying appeal in the Federal system, for what is at stake is not simply where the case will be tried, but rather significant and important rights attach in the Federal court that do not attach in the State court. And therefore, it is like, the appeal you get when they... when what is at stake is immune or not, and by doing that we avoid four more years of litigation and the necessity to hire clever lawyers. Leonard B. Simon: Well, Congress has said... Congress has said the contrary. And there are often important differences between State and Federal courts. Justice Breyer, I think you have some experience in California. We have 9 to 3 jury verdicts. You will have a litigant here next year saying that the difference between a removal and a remand is a unanimous jury verdict or a 9 to 3 jury verdict, and that's really important. Now, I would just briefly like to go back to Justice Ginsburg's question about a jury because I don't think she got the full answer. Let me give it to you, Justice Ginsburg. The jury issue is virtually... I would say not virtually. The jury issue is out of this case based on my adversary's reply brief. I will tell you why. We did ask for a jury trial in our case and we were upset about the whole notion of this case being removed on a cross-claim we were not involved in... we never sued Powerex... losing our right to a jury trial on this important case. Mr. Frederick's reply brief says at footnote 4, page 3... or footnote 3, page 4; I apologize... that our right to jury trial is not threatened here and that under certain lower court decisions, which he is correct they do exist... I'm not sure they're unanimous... Our right to jury trial would survive even though he would have a right to a bench trial under his theory. Well, there is no right to a jury trial on the cross claim against Mr. Frederick's client. The cross claim in the California court, which got this whole ball of wax rolling, is a cross claim for equitable indemnification and declaratory relief, equitable claims as to which there is no right to a jury trial. So I think we are all now in agreement on a jury trial. We are arguing someone else's case. Some day a litigant will appear in this Court and present the issue of jury trial-- Ruth Bader Ginsburg: --But there is still the question of Federal forum over State forum. Leonard B. Simon: --There is, and that's the issue that I think Congress has clearly and definitively said, the State courts have pretty good judges, pretty good juries, pretty good systems and certiorari procedures to this Court. In Kircher, the Court's opinion says, "the State courts are perfectly competent to resolve these issues. " The cost of this case being frozen for 3 or 4 years while we debated these issues... and these issues are very difficult. I would say, we don't only have a backup position, we have a backup backup position. Because we think, number one, the court should be taken at its word. We think, number two, the court had no subject matter jurisdiction. Removing jurisdiction is not subject matter jurisdiction. If you look at the book, Chapter 89, Section 1441, et cetera, it's titled Removal of Cases From State Courts. You won't find the word "subject matter jurisdiction" in there anywhere. A removal petition removes a case from the State court to the Federal court, where if it's a foreign sovereign immunities case, the Federal court decides if it has subject matter jurisdiction. That's what 1330 says in haec verba. It's what this Court's decision in Verlinden versus Central Bank of Nigeria says in haec verba. Verlinden says every court that gets a foreign sovereign immunities case must determine at the outset whether it has subject matter jurisdiction by determining if the foreign sovereign is immune. Which means that Judge Whaley was correct when he decided that by concluding he had an immune party in front of him, he had no jurisdiction. And it was equally correct for Bonneville, when he determined that United States versus Myers says the same thing, so that he had no subject matter jurisdiction. And in addition, there was a derivative jurisdiction doctrine. This notion of "removal jurisdiction" quote unquote, it's a term we all use. The Court used it in Kircher. I use it. Other people use it. But if you start getting serious about your words, it's meaningless in this context. We have subject matter jurisdiction and it is conferred in the area of 1330, 1331, 1332. It is not conferred in 1441, 1442, or 1443. It's simply not there. So my backup argument is, he was right on every point. And my backup argument beyond that is again, please, reread Carnegie Mellon. Put it next to Thermtron and look at what the lower courts have done. They have found excuse after excuse to take appeals in cases that have no business being in the courts of appeals. They don't have immunity issues. They don't have foreign sovereign issues. They don't have anything. Samuel A. Alito, Jr.: Well, the reason why they may have done that is because they've seen case after case where absolute power corrupts absolutely. And because district judges know that remand orders are not reviewable, on occasion they will remand cases for reasons that are clearly improper. That may be the reason. Now on your first argument, you say that what the district judge says is dispositive. You mean if the district judge says I lack subject matter jurisdiction because my docket is crowded, that's not-- Leonard B. Simon: No. Samuel A. Alito, Jr.: --That's not-- Leonard B. Simon: No, Your Honor. I overstated. Let me say it more clearly. Kircher, decided last term, makes clear the line between what can and can't be done. It discusses precisely this point and it refers to the Ryan versus Contra case and it refers to the Principi case. And it says that when the court is patently wrong about whether the issue it is discussing is subject matter jurisdiction, then this Court may enter into-- John G. Roberts, Jr.: Counsel, it's a good thing you've got a lot of fallback arguments because you fall back very quickly. I would have thought your answer to Justice Alito would be, the statute says if it's remanded, it's not reviewable on appeal or otherwise. And if it's remanded for a silly reason, that will be corrected on review of the State supreme court by this Court. Leonard B. Simon: --That would be my first answer, and the Chief Justice said it much better than mine, than I have. But I think, Your Honor, looking at Kircher, to be fair, looking at Kircher, I believe that is the position Justice Scalia took, it is concurring opinion. And I didn't want to suggest that Justice Scalia's concurring opinion was the opinion of the Court. The opinion of the Court wrestles with what I thought was Justice Alito's question. What do you do if the trial judge says he has no subject matter jurisdiction and he has not simply made a garden variety jurisdictional error but he has missed what the issue is? It's really failure to state a claim. It's really something else. And we of course have the Steele case which says jurisdiction has many meanings and we often get confused about them. And the Court answered the question by saying, only when the trial court is patently wrong, patently wrong not about the jurisdictional question but as to whether it is even a jurisdictional question, only when the court is patently wrong do we second guess the court. So-- John G. Roberts, Jr.: That certainly changes the argument. So the notice of appeal that's filed or the brief on appeal says not only was the court wrong, it was patently wrong, and the court of appeals has to consider that before determining whether it has jurisdiction to review the remand order. Leonard B. Simon: --If the court wants to adopt Justice Scalia's view in the prior case, in the Kircher case, my clients would be pleased with the results-- Antonin Scalia: I recommend that. [Laughter] Leonard B. Simon: --But I think, Justice Roberts... I think, Mr. Chief Justice... I apologize. Because my time is running short, I would say the key point in this case came when we sought to have a prompt dismissal in the Ninth Circuit of the appeal prior to full briefing and argument, and it was denied. That was the point at which if a litigant simply parroted the phrase "this is patently wrong", would likely in most circuits before most panels have lost. And this matter would have gone back to the State court 2-1/2 years before it got affirmed by the Ninth Circuit and five years before today. Unless the Court has any further questions, I think I've completed my comments. John G. Roberts, Jr.: Thank you, Mr. Simon. Mr. Frederick, you have three minutes remaining. David C. Frederick: Mr. Chief Justice, a non-jury trial is an aspect of sovereign immunity. This Court's cases have recognized that. In footnote 6 of the Government's brief, the Government cites the Lehman case which makes this point clear and argues that the point should be applicable to sovereigns in the context in which we are faced here. The question of whether a foreign entity, and it's more complicated often in the real world, Justice Breyer, as your question's identified not simply with questions but with the kinds of entities that foreign governments create to advance public purposes. The intent of Congress was not to have those kinds of entities tested in State court to determine whether or not they enjoyed the privileges and procedural protections of the FSIA. And it is not simply a question of whether or not an elderly judge might choose to recognize China or Formosa, but rather the kinds of instrumentalities that were created by those governments to advance public purposes, to serve as separate political entities, and who would be performing the kinds of acts that might lead them into litigation, and-- Ruth Bader Ginsburg: And Congress said, those entities don't get any immunity, they get two things: They get a federal forum and they get a judge trial. That's all that's at stake. David C. Frederick: --That's not all that's at stake, Justice Ginsburg. There are also rights with respect to foreign states to be free of punitive damages. There are rights to have certain property of the sovereign that would be subject to different attachment rules. The FSIA has a whole string of procedural protections that are afforded to foreign states and their instrumentalities. And this case ultimately is about the fact that Powerex is being subjected to multiple suits in State court, but as a result of the Ninth Circuit's holding in-- Ruth Bader Ginsburg: Are those... have they been sued by the plaintiffs in any of these cases or have they always been brought in by defendants? David C. Frederick: --They have been directly sued by the People of the State of California whom my brother here represents. They have been sued by the California Attorney General. They have been sued by the California Department of Water Resources. And under the Ninth Circuit's precedent in this case which I urge you to overturn, Powerex has been remanded to State court, has not been permitted to appeal the remand order, and is stuck in State court in these cases without any opportunity to test what is a clearly erroneous, and what my brother doesn't make any attempt to defend, the merits of the decision, that Powerex has performed public functions, it's serving at the direction of the Government of British Columbia, and is performing these functions to advance clearly public purposes. And yet, we are now in this Kafkaesque work world between State and Federal court where if we try to litigate all the way up through State court, it is not entirely clear whether we will ever have our organ... our status as a foreign organ ever vindicated. Thank you. John G. Roberts, Jr.: Thank you, counsel. The case is submitted.

William H. Rehnquist: We'll hear argument next in No. 03-724, Hoffman-LaRoche v. Empagran S.A.-- Mr. Shapiro. Stephen M. Shapiro: Thank you, Mr. Chief Justice, and may it please the Court: The United States, joined by seven other nations, has concluded that the decision in this case is an error and should be reversed. The reason is that the plaintiffs here are foreign claimants which allege that they paid too much for vitamins outside of U.S. commerce. Trying these claims in our courts would conflict with the principle that the Sherman Act does not regulate the competitive conditions of other nations' economies, and stretching the antitrust laws to include such claims is a recipe for international discord and for heavy new burdens on our Federal district courts. Now, when Congress passed the FTAIA in 1982, it did not expand the domain of the antitrust laws, but rather clarified limitations. It required both an effect on U.S. commerce and the claim arising from that same effect. As the Government explains, this is language that refers most naturally to a claim of the plaintiff before the court, and not a claim of some other person. The court of appeals, of course, believed that it was enough for somebody else to have a claim arising from a U.S. effect. William H. Rehnquist: Did... did the court of appeals explain how that issue would be litigated or decided whether someone else had a claim? Stephen M. Shapiro: It really had... had no explanation of that, Your Honor, and it's quite an extraordinary assumption that you would inquire into the bona fides of some unknown person whether they have a claim or not, and indeed, there is a case pending before this Court, the Sniado case, where the litigants have no idea whether there's another person who has such a claim in the United States, and yet discovery has to take place on that... that issue. Anthony M. Kennedy: The... the respondent says in... in its brief without much detail, just makes the allegation, well, it's the single market, this is the nation, this is a global market, so there's nothing you can do. It... it does seem to me that there would be difficulties in... in defining what is the foreign commerce affecting the United States and what is foreign commerce that does not. How is this resolved in your... best resolved in your view? Stephen M. Shapiro: Well, in our opinion, the characterization of the market and the scope of the conspiracy is irrelevant to the reach of the antitrust laws. Their... their domain is defined in terms of the commerce of the United States. Both the Sherman Act explicitly says commerce within the United States, among our states, and with foreign nations. The FTAIA refers to our commerce too. There was no indication that Congress was attempting to regulate commerce in other nations or between other nations with this extraordinary remedy of treble damages. Anthony M. Kennedy: I... I guess my point is, is it... is it all that clear in the real world that these are discrete concepts? Stephen M. Shapiro: Yes, Congress had in mind that... that this would be a bright line test whether or not our commerce was injured, defined as commerce that's domestic or import or export, and it distinguished that from wholly foreign transactions, wholly foreign commerce, and it wanted to draw that line so that these cases would be allocated to the correct judicial system in the world community and they would not all be-- Antonin Scalia: The... the claim here is that because of the... because of the worldwide nature of the market, our foreign commerce is necessarily injured, because the market being worldwide, if a lower charge had been assessed in the United States, which would have been the case absent the alleged violations of the antitrust laws, there would have been arbitrage, and we would have exported some of these drugs abroad by reason of the fact that they had been purchased at lower prices in the United States. Why... why doesn't that make out an injury to foreign commerce? Stephen M. Shapiro: --It... it makes out an injury to wholly foreign commerce. The overcharge took place in Australia, Ecuador, Panama, and the Ukraine, and it isn't enough to say there's some interrelationship among these prices. The Fifth Circuit correctly rejected that claim as a matter of law. Antonin Scalia: No, but there... there was an overcharge in the United States. You're... you're not-- Stephen M. Shapiro: Right. Antonin Scalia: --contesting that... that-- Stephen M. Shapiro: At all-- Antonin Scalia: --that the conspiracy included the United States? Stephen M. Shapiro: --All of the people who were overcharged in the United States have been compensated in the settlement and our fines here have been geared to the overcharge-- Antonin Scalia: Yes, but I'm talking about the effect on foreign commerce. If there had not been the overcharge in the United States, if realistic market-based prices had been charged in the United States, we would have re-exported a lot of these drugs to foreign countries that were still being overcharged, wouldn't we? Stephen M. Shapiro: --Well, Your Honor, if... if the FTAIA was interpreted to permit that argument, the consequences, all of the foreign claimants could come to our courts, our courts would be flooded, other nations would be antagonized, because they believe that they should be able to apply their law to those foreign transactions. It isn't enough to speculate about relationships among prices in these two systems, because the statute requires a line to be drawn between effect in the United States-- John Paul Stevens: Mr. Shapiro, can I ask you a question-- Stephen M. Shapiro: --and effects, purely foreign commerce. John Paul Stevens: --about your theory, about your theory? What if the plaintiff is engaged in business in both the United States and in a foreign market and suffers injuries in both? May he recover for both injuries or only the injury in the United States in your view? Stephen M. Shapiro: Only for injury in the United States, and the House report talks about that, companies that are involved in jurisdictions-- John Paul Stevens: And it... would that have been the case before this statute was passed, do you think? Stephen M. Shapiro: --Yes, I... I do, because the... the Clayton Act limits the private treble damage action to injuries stemming from a restraint on U.S. commerce, commerce among the states, and with foreign nations, not foreign commerce that is wholly in foreign nations or between foreign nations. The injury has to flow from that which makes the conduct illegal, which is the U.S. restraint. John Paul Stevens: No. The injury in the... under the statutory language, they has to... the plaintiff has to suffer an injury to his business or property, but you say that does not include the business or property that's conducted abroad? Stephen M. Shapiro: That's correct, because if... if the... if the United States claimant has participated overseas in purely foreign commerce, Congress expected that that plaintiff would invoke the laws of the other nation. To the extent that it participated in U.S. commerce, Congress expected that the plaintiff would come to our courts. It was a division of judicial labors among the sovereign nations to try to encourage other nations to adopt their own antitrust laws and to avoid the kind of antagonism that we see with these amicus briefs from other countries. John Paul Stevens: Do you think that... do you think maintaining that position is necessary for you to prevail in this case? Stephen M. Shapiro: Well... well, of course not, Your Honor, because the plaintiffs here... we're talking about the Winddridge Pig Farm in... in... as one of the plaintiffs in Australia that's claiming it paid too much for vitamins in Australia, and the other countries wonder why... why are they complaining about the price of vitamins in the United States court? It's a purely foreign transaction-- Ruth Bader Ginsburg: Suppose they... suppose these foreign buyers had alleged, well, they heard that the United States is a good place to buy things and they tried to buy the vitamins in the United States and found the same rigged prices? Stephen M. Shapiro: --Well, Your Honor, first, the complaint does not allege any attempt to deal in the United States. Ruth Bader Ginsburg: I'm asking you if that would do under your theory. They said, we really wanted to make these purchases in the United States. Stephen M. Shapiro: There... there is one case that I would refer Your Honor to. It's the Amex v. Montreal Trading case, 1981 decision from the Tenth Circuit that says it's not enough to say we might have done something different, we could have done something different, we wish we had done something different. There has to be a trading pattern. Ruth Bader Ginsburg: Suppose they show that they in fact attempted to buy drugs here and they found... vitamins here... and they found that the price was the same. Stephen M. Shapiro: Well, the Tenth Circuit held that there had to be an interrupted course of trading before a plaintiff could make that allegation, and that's very similar to what this Court held in Holmes v. SIPC-- Stephen M. Shapiro: Mr. Shapiro, I-- Stephen M. Shapiro: --that you have to have an actual transaction that's been interrupted. Antonin Scalia: --I would think your defense against that is... is... is not to assert that there's no effect on... on foreign commerce, on our exports, because I think... I think there is. I... I would... I would think your defense is... is in... in Section 2 of the Foreign Trade Antitrust Improvements Act, which requires that this effect on commerce, on export commerce, gives rise to a claim under the provisions of Sections 1 to 7, and... and the only way it gives rise to a claim on the part of these people is a claim as second purchasers, and Illinois Brick would have excluded their claim, I assume, if they are re-buying from the... the... from people in the United States. Wouldn't that be the case? Stephen M. Shapiro: Well, yes, we do rely on the second prong of the FTAIA, which requires that the particular claim derive from an anti-competitive effect in the U.S. And here it doesn't, it derives from an effect overseas, and of course, these plaintiffs don't allege that they purchased some export coming from the United States. Antonin Scalia: No, they... they're alleging that they would have purchased from... from Americans. That would have been down the stream, it seems to me. Stephen M. Shapiro: It certainly would be, and it would be extremely speculative, and it's the sort of claim this Court has always rejected under Holmes against SIPC, under Blue Chip Stamps, in the securities context, which has been followed the antitrust case law. It's not enough to say we might have done something different. That does not make them into participants in U.S. commerce, and Congress wanted the treble damage remedy to be available to protect our commerce. It expected other countries to adopt their own laws to deal with overcharges within their own territories, and other nations, of course, have done just that. They've passed over 100 different pieces of legislation all around the world, from Albania to Zambia, we see new antitrust laws that have been passed, and it would discourage that process if the U.S. courts attempted to subsume all of these foreign overcharge disputes into our court system. David H. Souter: Let's... let's assume that... that we find the textual argument in... in effect a... a draw. One way to go your way would be to accept a comity analysis, but I take it comity was never raised. Stephen M. Shapiro: Well, there is a kind of comity that Justice Scalia referred to in the Hartford case that we think is raised here, and that is comity bearing... comity among nations, not judicial comity where the judges weigh various and sundry factors, but it's a rule of interpretation that... that discourages interpretations of law, where you have two interpretations that are available, you pick the interpretation that is most consistent with international law and which avoids antagonizing our allies and our trading partners. And that concept is very much before the Court here, and I think it argues very much in favor of the narrower interpretation, particularly because Congress was expecting that wholly foreign transactions, that's the term used in the House report, would be litigated in foreign nations, and... and our... our allies and trading partners-- David H. Souter: Well, if we... if we accept that and textually the statute is a draw, we... we wouldn't have to get to this interpretative principle. I mean, one reason for getting to the interpretative principle that you now suggest is... is simply the submissions of... of foreign countries as well as the United States in this particular case. Stephen M. Shapiro: --Well, yes, we... we think the literal language and the structure of the statute are sufficient to reverse here. But to the extent that the Court's endowed, it's very appropriate to use these traditional tools of interpretation that go all the way back to the Charming Betsy case that the Court, faced with a choice between two readings of a statute, picks the interpretation that is compatible with international law and which avoids antagonizing our allies. William H. Rehnquist: Well, how... but how... how do we know those two factors? How do we know what's consistent with international law? How do we know what's consistent with not antagonizing our allies? Stephen M. Shapiro: Well, on the latter, we have amicus briefs from seven of our... our most significant trading partners, of allies-- William H. Rehnquist: But surely there... there are other partners who have not been heard from. Stephen M. Shapiro: --That's true, but all of the foreign nations that have spoken up here agree with the United States that this is contrary to their ability to regulate commerce in their own nations. No nation-- Antonin Scalia: These are nations with... with fairly effective antitrust laws and antitrust enforcement. Stephen M. Shapiro: --Absolutely. Antonin Scalia: What about the majorities of nations in the world that don't have effective antitrust enforcement, if indeed they have any antitrust laws? Might they not be eager to have us do the job for them? Stephen M. Shapiro: Well, there are 100 nations now that do have aggressive antitrust enforcement programs, and Congress' view in 1982 was that we should draw back in our attempt to police the world because we want all these other nations to adopt these rules. That won't happen if the United States takes all of these cases into its jurisdiction. Other nations won't go the route that they... that they were encouraged to do by Congress. And I think it's also important to consider the burden on our judicial system that the interpretation advocated by my friends would impose. David H. Souter: Well, their argument is that these cases simply come together anyway, these cases will piggyback their way in or at least come hand in hand with the domestic cases. Stephen M. Shapiro: Well, Your Honor, it... these cases are difficult to administer under the best of circumstances, but consider global plaintiffs from 192 countries coming to the United States and asking a single district court judge to decide how much they've been overcharged, how much competition there was locally, what trade barriers there were that might have prevented competition, calculate the damages for every man, woman, and child on the face of the Earth that perhaps is... has an antitrust claim. John Paul Stevens: Of course, I suppose that's the penalty for engaging in worldwide conspiracy. Stephen M. Shapiro: But that penalty is imposed on our district court judges. They would... would be forced to untangle these incredibly different procedural problems, and how are they going to give notice to people around the globe in 192 languages with different dialects? How could we even accomplish that and how could we make sure people are actually protected in this global forum that's being advocated? U.S. courts are not world courts equipped to do this. Ruth Bader Ginsburg: Could you just deny class action certification if that's... if you have that kind of problem, but no... nobody, none of these plaintiffs are trying to sue on behalf of the whole world. Stephen M. Shapiro: Well, the plaintiffs here are... are alleging a class action of all the purchasers around the world outside of the United States, and every one of the cases that's been filed under this theory has been a class action, so that's... that's what we're seeing. And of course, in... in a broad array of future cases, not just price-fixing cases, but all Sherman Act cases are subject to this FTAIA regime-- Ruth Bader Ginsburg: Has any Federal court ever certified a class that size, that all purchases around the globe? Stephen M. Shapiro: --I don't think the class issue has been reached in any of these cases, but they... they are being filed. I... I saw one just a month ago in the district court in Connecticut. It was a suit by an Indian dealership alleging it had been wrongfully terminated in India. He wanted to litigate in our courts over the propriety of that termination, claiming that dealers in the United States maybe were affected by the same thing. Well, there are lots of dealerships around the world in 192 countries, and the lure of treble damages is a powerful lure that's going to bring them to our country if these claims are accepted. With the Court's permission, we would reserve the balance of our time. William H. Rehnquist: Very well, Mr. Shapiro. Mr. Pate, we'll hear from you. R. Hewitt Pate, III: Thank you, Mr. Chief Justice, and may it please the Court: Given the key role of deterrence, both in the opinion below and in the respondents' arguments here, the United States thinks it important to offer the Court an accurate understanding of how international cartel enforcement really works. It's only in the past 8 years that we've begun to see dramatic success in detecting and punishing international cartels, and that has come about only by international cooperation with other enforcement agencies and through the use of amnesty programs. There's nothing in the FTAIA, much less any clear congressional statement, in statute that after all was jurisdiction-limiting in intent, that would require jeopardizing our progress in those enforcement efforts through a dramatic extraterritorial application of U.S. treble damages litigation. Even if there were, established principles of standing under Section 4 of the Clayton Act would nonetheless preclude that result. David H. Souter: Can you tell us how... how it would jeopardize your... your efforts? Suppose we rule for the respondent here, wouldn't that make foreign conspirators and... and American companies all the more eager to come to you, because then they could get immunity both for U.S. actions and... and the global effects? R. Hewitt Pate, III: The... the important point, Justice Kennedy, is that under these amnesty programs, there is no amnesty given for civil liability. So it is our experience that when a company finds that its employees have been engaged in wrongdoing, it balances the potential for freedom from criminal liability against the certainty that civil treble damages will follow. And to make the type of sea change in the law that's advocated by respondents here to provide for unquantifiable, potentially unknowable worldwide liability will in our judgment lead to the risk that companies who discover this type of conduct will instead hunker down and simply hope not to be detected. The... the effect will be even more dramatic with respect to the amnesty programs of some of our trading partners, such as the countries who have filed briefs here, because in those systems, treble damages are simply unknown. So while we fear a marginal decrease in the effectiveness of our program, there would be a dramatic impact on foreign amnesty programs-- John Paul Stevens: Mr. Pate, do you agree with Mr. Shapiro's answer to my question about a plaintiff, an American plaintiff who has business both in this country and abroad and suffers... and both are hurt by the conspiracy? R. Hewitt Pate, III: --Yes, Justice Stevens, I do, because under Section 4 of the Clayton Act, the plaintiff must show that his own injury is, by reason of-- Anthony M. Kennedy: Well, in my hypothetical it is his injury, he does business both in the United States and in Europe. R. Hewitt Pate, III: --Exactly. But with respect to the foreign incurred injuries, he must show injury by reason of that which makes the conduct illegal, and since Alcoa in 1954, and certainly under Hartford, it is the effect on U.S. commerce that makes the conduct the concern of the Sherman Act in the first place so that he cannot show that he's been injured by reason of that which makes the conduct illegal. David H. Souter: I don't follow the-- --I... I thought Hartford left that question open. R. Hewitt Pate, III: Hartford-- David H. Souter: I mean, Hartford specifically addressed the export, but it... it... my recollection is, in the footnote, it expressly left any... any further effect of the statute in open question. R. Hewitt Pate, III: --That's correct, Justice Souter. The Court did not address the statute. I was simply pointing out that in foreign commerce cases, it is the effect on U.S. commerce rather than the conduct itself that causes that conduct to be the concern of U.S. antitrust laws. Absent the effect on U.S. commerce, there would be no application of the U.S. antitrust laws. That's true under Alcoa and true under Hartford. Now, with respect to the FTAIA, we think the most natural reading of the statute is simply that the Court look at the party bringing the claim before the Court in construing section (a)(2). Stephen G. Breyer: The FTAIA was passed in 1982, is that right? R. Hewitt Pate, III: That's correct, Justice Breyer. Stephen G. Breyer: The division keeps track, I guess, but is there any instance, or what instances are there, I'd like to write them down unless there are dozens, in which a foreign cartel injures the United States and also separately injures people abroad. What instances were there in which the people in Uruguay or wherever could sue the perpetrators in Holland in an American court prior to 1982? R. Hewitt Pate, III: We're aware of no instance of such a case and it-- Stephen G. Breyer: No such instance. I'll ask the other side the same question. R. Hewitt Pate, III: --It was clear and it is accepted as a commonplace that a plaintiff who did not participate in U.S. commerce, in trading in U.S. commerce, simply would not have had the same-- Stephen G. Breyer: So you've looked it up and you can find nothing in your opinion that counts as such an instance? R. Hewitt Pate, III: --We're aware of no such case. The respondents have attempted to cite district court cases, but if you look at each of those, you will find an effect on U.S. commerce, and with respect to the Industria Siciliana case mentioned in their brief, you'll find that that was a case that was expressly disapproved by the Congress when it passed the FTAIA, even if it could be read that way, so that under the FTAIA, we think the natural reading is simply to ask the court to look at the claim before it and to ask whether the U.S. effect gives rise to a claim on behalf of the party in court. Where the United States is bringing a claim, any time we can meet the direct, the effects test of Hartford and Alcoa, we will always have a claim that has arisen from a U.S. effect, so that there is no danger here to U.S. enforcement, which continues under the application of the FTAIA without any burden. But as to a private plaintiff, the private plaintiff must show that its own claim is one that has been given rise to by a U.S. effect. Turning to standing, we think even if the FTAIA did not apply, that the proper result here would nonetheless be reached under the Clayton Act, not only for the... by reason of rationale that Justice Stevens mentioned in his question, but also because the plaintiffs are not within the zone of interests that are protected by the antitrust laws under this Court's opinion in Matsushita and elsewhere, which makes clear that our Sherman Act is not intended to set the competitive conditions for other nations' economies. And finally, if the Court simply were to apply the remoteness or proximate cause rationale that's also very prevalent in the Court's antitrust standing cases, which excludes injuries, for example, to shareholders, to employees, that the case also would not be proper under a remoteness rationale, because these plaintiffs do not in fact allege that they were the victims of an overcharge in U.S. commerce. They do not even allege, Justice Ginsburg, that they made any attempt to purchase in U.S. commerce, but would rather seek to use speculative transactions that never occurred to make an end run around the FTAIA by defining a so-called one-world market or one big conspiracy theory. To do that would certainly again be completely contrary to this Court's holding in Matsushita, where the Japanese aspects of a conspiracy were sought to be put together with American aspects into one big claim. The Court plainly rejected that. Indeed, if we were to proceed on that theory, why would not the claim here be equally seen to have been given rise to by effects in France, effects in Great Britain, Russia, or elsewhere. There is simply no limiting principle. And as Mr. Shapiro suggests, to pursue this path would embroil the district courts around the country in all forms of satellite litigation, and it's very important to recognize that this is not a test that would apply only to a notorious worldwide criminal conspiracy, such as was at issue here, but would apply to rule of reason cases, joint venture cases, could apply even to Section 2 cases under the Sherman Act any time a plaintiff was able to allege that some other plaintiff somewhere suffered from a U.S. effect that was related to that conduct. And the cases that Mr. Shapiro mentioned are good indications of that. So in our judgment, the Court should pay attention to the practical realities of enforcement and avoid doing damage to them, avoid creating friction with our trading partners in a situation where whatever else can be said, there is no clear congressional statement that the FTAIA should be read to expand jurisdiction. In fact, the statute cannot on its terms expand jurisdiction by reason of its language, which begins with a statement that the antitrust laws shall not apply, and then puts the plaintiff back where it was prior to the FTAIA if certain conditions are met. In no case can the statute operate to give additional causes of action or create additional standing on behalf of parties who didn't have it prior to the FTAIA. In short, all the Court need do is evaluate respondents' own claim rather than the hypothetical claims of others, and doing so will require dismissal. If the Court has no further questions, thank you, Mr. Chief Justice. William H. Rehnquist: Thank you, Mr. Pate. Mr. Goldstein, we'll hear from you. Thomas C. Goldstein: Thank you, Mr. Chief Justice, and may it please the Court: Justice Breyer, I will come to your question in just a moment. The petitioners are more than 20 U.S. companies and their foreign affiliates who were caught red-handed perpetrating the most damaging anti-competitive conspiracy in the history of-- William H. Rehnquist: Mr. Goldstein, do you agree with the position of your opponents that the FTAIA was a limiting statute and that if there was no claim before FTAIA, that there certainly is none afterwards for your case? Thomas C. Goldstein: --Yes, Mr. Chief Justice, but not because the FTAIA applies. We have to prove that we would have had a claim before the Sherman Act, before the '82 Act was adopted, and we intend to do so. I do know... do, however, think that the '82 Act is illuminating because it eliminated claims of other people and not ours, and that would be the victims of a U.S. export cartel. Now, the reason our position is critical is the one identified by Justice Kennedy, and that is that the conspirators' cartel encompassed a worldwide market for bulk vitamins and the worldwide market is relevant because geographic boundaries don't have any meaning here. A conspiracy limited to U.S. commerce would have collapsed as U.S. purchasers bought abroad, as Justice Scalia has said, and there is a critical fact about the nature of the worldwide market and how the United States enforces the antitrust laws that has not been touched on in the first half hour, and that is that U.S. antitrust law... and Mr. Chief Justice, this is prior to the 1982 Act... deems their conspiracy... Justice Breyer, it's not the individual transactions, it's the entire conspiracy... illegal, lock, stock, and barrel. The U.S. Government in this case prosecuted the petitioners not for price-fixing in the United States and not for market allocation in the United States, but price-fixing and market allocation in the United States and abroad. If the petitioners are right about what the Sherman Act means, including after the 1982 Act, then it will be the prosecutions of the United States that fall along with our position. Stephen G. Breyer: No, no, I mean, their argument I take it is simply, of course, there... the quinine cartel, which I had heard of, I'd not heard, the quinine cartel sets in Holland and raises the price of quinine that's sold all over the world, and of course it violates our law and we're out there and they're lobbing these shells at us in a sense, and so of course we can bring a claim against them, it hurts us. But other countries have different laws, and as far as they're concerned, those laws... what they are doing in Holland is fine. And so what business do we have telling Uruguay, which thinks depression cartels, or Japan, which thinks oppression cartels are the greatest thing, and they may be, and so does Holland think that. And what business do we have saying that a citizen of Japan who's hurt by something that the Japanese think is just fine and the Dutch think is just fine come to our court and enforce our law against those other countries where it doesn't affect us? That's their claim. It's a kind of like we're engaged in legal imperialism. If we think our law is better, convince them. Don't apply our law to them against their consent. Now, that, I take it, is the argument, not what the prosecution says. So I'd be interested in your response. Thomas C. Goldstein: Justice Breyer, I'm going to answer it in three parts that will explain why it is that you can't separate the civil and the criminal liability. As you know much better than me, what's good for goose is good for the gander. Section 4 of the Clayton Act says if it's illegal and it can be prosecuted, then there's a civil right of action for it. So here are my three parts. The first is the case law. American Tobacco, National Lead, Timken Roller Bearing, these are the three principal cartel cases that are discussed in our brief. Those cases do not say that the quinine cartel was illegal insofar as it hurt us. It's-- Stephen G. Breyer: It says it's illegal, period. Thomas C. Goldstein: --It's illegal, including the sales in Ecuador and in Holland. Justice Breyer, I... I urge you to go to the indictment in this case, which is at the rollover between pages 1 and 2 of our red brief. In this case, the Federal Government prosecuted Mr. Shapiro's clients for price-fixing and market allocation in the United States and abroad. That is, we don't care that Ecuador likes price-fixing. I will come to the fact that they don't, but it doesn't matter. The Section 1 of the Sherman Act reaches the conspiracy and this Court's precedents reach every bit, as I said, lock, stock, and barrel. Now, let me give you the reason why. That was your question. Okay, assume... you wanted to know Congress made that choice, and it made that choice because, as Justice Scalia explained, we can't separate what happens in Ecuador from what happens in U.S. commerce. It doesn't make, in terms of protecting our consumers and our economy, it makes no difference at all whether the sale was between Holland and Holland, New Jersey, or instead Holland and Ecuador, because the cartel gets sustained, and that's also the point of Pfizer. So Congress recognized that and it made the cartel-- William H. Rehnquist: Well, but Pfizer was doing business in this country. Thomas C. Goldstein: --Mr. Chief Justice, we accept that as correct, but-- William H. Rehnquist: Well, you have... you not only accept it, it's a fact, so you're-- [Laughter] Thomas C. Goldstein: --And it... and we accept it. [Laughter] With good reason, I think. Mr. Chief Justice, our point is that the rationale... I don't want to-- Stephen G. Breyer: But I... if you're on a... it sounds to me like you're a verbal point, which I'm not against. Of course we say it is illegal what they do in Holland. It's illegal when they hurt us, it's illegal when we hurt them, we think it's illegal plain and simple. I accept that. But what I don't see follows from that is that we give a claim for damages by a... to person in Uruguay for activity that takes place in Holland, which we think is illegal, but the Dutch and the Uruguayans don't. And so I can't get mileage for you unless I'm wrong in thinking that out of words in indictments that say American Tobacco, what they did was illegal everywhere. I like... I think the antitrust laws are a marvelous policy, okay, so I'm tempted to say, yes, it's illegal everywhere. But that isn't where I'm having the problem. I'm having the problem about finding... I... I'd be repeating myself, so have you taken it in? Thomas C. Goldstein: --Yes. Stephen G. Breyer: Okay, what's the answer? Thomas C. Goldstein: The answer is that the... let me take you to the text of Section 4 of the Clayton Act, which I know you know, but it can't hurt to come to it, and that's at the page 1a of the red brief. The Section 4 of the Clayton Act says, any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws has the cause of action, and that's what Congress said. It's not, Justice Breyer, merely that we say, we think you shouldn't do this in Ecuador. It is, you may not do it in Ecuador in order to defeat the cartel on the whole. Stephen G. Breyer: Correct. And if we had that alone, that would be strong support, and the problem is we have another sentence, which is the first sentence in the FTAIA, whatever it is, and then you get to the second. Thomas C. Goldstein: Okay, but-- Antonin Scalia: I'm... I'm not... I got off the train even earlier. I'm not... I'm not sure that... that when an indictment describes an international conspiracy as an international conspiracy, it amounts to saying that that portion of the international conspiracy which does not affect this country in any way is illegal. I don't think that... I think you're bound in your indictment to describe the... the actual conspiracy, and if it indeed is one that covered the whole world, you're... are you supposed to describe it as one that only applied to the United States? Of course not. You describe the actual conspiracy. That does not prove that the portion of it which does not affect the United States is in any sense illegal under United States law. I don't think it is illegal. Thomas C. Goldstein: --Justice Scalia, let me tell you why I think that is contrary to settled precedents, and Mr. Chief Justice, these are precedents just like Rose v. Lundy that Congress would have had in mind in the 1982 act. So I want to talk, Justice Scalia, about pre-1982 law on whether or not the Sherman Act actually made the transactions, if we were to focus on them, illegal. And then, Justice Breyer, I want to come to whether the '82 act changes that. Justice Scalia, the decree in National Lead affirmed by this Court, which is at pages 330 to 331 of the Court's opinion, cancelled contracts that were in purely foreign commerce. To read from the opinion that... that established the decree, several agreements relating to manufacture and trade, we deem the European markets are but some of the links in the chain which was designed to enthrall the entire commerce in titanium. Timken Roller Bearing did the exact same thing, and the Solicitor General argued in Timken that acts would have... that those acts would have violated the Sherman Act even if they had related solely to the commerce of the foreign nations. Those precedents, Justice Scalia, if you look at them, do say that the underlying activities that are in the overt acts, if you will, in furtherance of the conspiracy, are illegal under U.S. law, and that's for a good reason. That is, if we don't go after them, the conspiracy itself will be sustained. You have to attack the conspiracy and what the conspirators are actually doing. Stephen G. Breyer: But all of that is true and it does not necessarily follow that we do or should permit a cause of action. Thomas C. Goldstein: Absolutely, Justice Souter. I have to take this... there are... there are three parts to the equation, and let me just, at each stage, because it can get very complicated, talk about where we are in the logic. There is the question, does the Sherman Act apply? There is the second question, okay, is there a private right of action? And, Justice Souter, you identified the third part to it. What does comity have to say about it? What do we do, assuming even if nominally the statute applies and they can sue, but it nonetheless would bring us into conflict with our trading partners. So I was answering, Justice Scalia, on the first. Justice Breyer and you have taken me to the second, and that is, is there a private right of action, particularly after the 1982 Act? Two facts about the 1982 Act. First, it has nothing to do with this case. Its purpose, and it's reflected in the introductory clause, and let me take you to-- William H. Rehnquist: You're... you're talking about FTAIA? Thomas C. Goldstein: --Yes, Mr. Chief Justice. William H. Rehnquist: Well, but the court of appeals relied very heavily on the act. Thomas C. Goldstein: It did in the sense of saying-- William H. Rehnquist: Well, it just did. I mean, not did-- Thomas C. Goldstein: --It did in a particular sense, yes. I'm not trying to quibble. It said that the-- William H. Rehnquist: --Good to know. [Laughter] Thomas C. Goldstein: --It said that the FTAIA, the '82 Act didn't bar our claim. We think that's right for two reasons, the first it doesn't apply at all, and the second is that clause 2, which is what gave rise to the split in the circuits, doesn't require that the person's injury, that the person's injury arise from an effect on U.S. commerce. It accepted the second of those propositions, and so I'll start with it, and Mr. Chief Justice, the text is at page 1a of the red brief. I think it's helpful to go there. This is a limit, by the way, of course, on both private rights of actions and the actions by the Government, and so what happens to us is going to happen to Federal prosecutors. It says, it's the second statute listed, Sections 1 to 7 of this title, that is the Sherman Act, shall not apply to conduct. It's focusing there on the conspiracy, all agree here that the conduct covered by the FTAIA is the illegal conspiracy. So conduct involving trade or commerce other than import trade or import commerce with foreign national unless two conditions are satisfied. The one is the substantial effect on U.S. commerce, and they admit they sold billions of dollars of vitamins in the United States as part of the worldwide market. And second, such effect... and so the effect here is the effect of the conspiracy on U.S. commerce... gives rise to a claim under provision... under the provisions of Sections 1 to 7 of this title, i. e, under the Sherman Act. What that statute does is determines whether the conspiracy itself falls within the Sherman Act. It is not... and as its structure indicates, it's not about whether a particular individual's claims comes within it. Remember the structure is, this conduct, the conspiracy, is illegal or not depending on whether or not these two criteria are met. Now, this is... our reading of it is the one that was adopted by the United States when the act was adopted, by every single antitrust treatise, every single article interpreting the FTAIA at the time. They all recognized that what clause 2 does is requires that the effect required by clause 1, that is, the effect on U.S. commerce, be an anti-competitive effect. William H. Rehnquist: But the... I... the court of appeals, I thought, said the language, give rise to a claim, meant that you didn't have to show the claim of any particular person. Do... do you agree with the court of appeals there? Thomas C. Goldstein: We do, Mr. Chief Justice, in its bottom line. You asked a question in the first minute, how in the world are we going to tell if some other person has a claim, and that... we agree with you, that is not what Congress had in mind. As between the two sort of reticulated versions of clause 2, the Second Circuit is the... is the reading of the statute. It comes out the exact same way, but it's the analysis of the Second Circuit that's right. The Second Circuit said, before the 1982 Act was adopted there was a split. We didn't know if in order to trigger the Sherman Act, the effect that was required on U.S. commerce had to pro-competitive or anti-competitive. There was a rule of the Second Circuit in a case called National Bank of Canada that says, look, it's not good enough to bring in the Sherman Act if there's an increase in exports or more jobs. No, no, no, no, no. It has to be anti-competitive here. And so that... the ABA submitted comments on the original version of the 1982 bill, and it said, look, in order for the Sherman Act to apply, there's got to be a problem in our country, and so they added clause 2, and that's, as I said, the United States said so in 1982, in 1983, every treatise did, every antitrust commentator. So that's what clause 2 does. It says, look, we are concerned when our economy is being hurt, and that's a limit on us, and in the antitrust guidelines, the Government says that's a limit on them too. Stephen G. Breyer: I... I just want... don't want you to lose part 3, and let... let you focus on that, the comity. Thomas C. Goldstein: Yes. Stephen G. Breyer: One possibility floating through my mind is that there are international quinine or maybe this, international vitamin cartels, where it's pure price-fixing, and in such instances, prices in one country may be interdependent on another, and in such instances if you lose this case here, now, you may still have a claim, because it flows in part, the injury, from effects in the United States. But there are many other parts of the antitrust law which are highly controversial. To name a few, information sharing, vertical restrictions of different kinds. And if you win here, not only do you not have to show this interdependent thing, but anybody could come in under all those under provisions too, which many other countries don't like at all, and bring lawsuits and there's no way to prevent our law from becoming generally imperialistic in this sense that I've been talking about. That's a way of focusing you back on the comity question, and you can answer mine, the comity, whatever you like. Thomas C. Goldstein: Thank you. Let me put us in the analytical framework again, and that is, we understand, let's... we're assuming the Sherman Act applies and that there is a right to sue in theory. Now, are there other limitations? Let me be very clear on the fact that these are three separate issues and then apply the third prong. This was settled in Hartford Fire. Mr. Shapiro is relying on the dissent in Hartford Fire for the proposition that comity concerns are built into the definition in the Sherman Act. That is the position that the majority rejected. And although he says the issue is nonetheless here, his page... page 41, note 16 of their brief in the court of appeals expressly acknowledged that the question is different from the question of comity presented in Hartford Fire. So that-- Anthony M. Kennedy: But how... how is it, in... in the hypothetical that Justice Breyer posed, that comity is built in? If they... simply because someone says it doesn't mean that it is. I... I just don't see how it is. Thomas C. Goldstein: --I understand. Justice Kennedy, the courts of appeals leading up to Hartford Fire were unanimous and then Hartford Fire cites with approval, for example, a case called Mannington Mills, and that is that the courts of appeals had always understood up to the point of Hartford Fire, and then Hartford Fire applied the same analysis, that comity is a restriction on the exercise of the jurisdiction conferred by the Sherman Act, and so Hartford Fire endorses it. And then subsequent to Hartford Fire... and Justice Breyer, I am coming back to the substance of the comity analysis... but let me just say that subsequent to Hartford Fire, the courts of appeals have applied comity robustly. Let me just cite two cases for you, Metro Industries, which is 82 F. 3d 839, and Nippon Paper, 109 F. 3d 1. They have continued to look at all of the different considerations. And so, just to return to structure and then to substance, the district court and the court of appeals had no cause to consider whether or not this case would interfere with international relations. Now, that analysis in the case of monopolization or unfair trade practices would preclude the exercise of U.S. antitrust jurisdictions for several reasons. The first is, here in our case we have an international norm. Everybody hates price-fixing. Our brief details-- Ruth Bader Ginsburg: Mr. Goldstein, may I stop you there, because you are dividing the universe up in to claims that everybody agrees and more controversial applications of U.S. antitrust law, but one of the principal objections, as I understand it, from other nations is to the treble damages feature. They say, for their consumers, the way they regulate antitrust, there are no treble damages. Thomas C. Goldstein: --Yes. So Justice Breyer, I'm going to put on the table for a second whether or not our law applies at all. In detour, Justice Ginsburg, if we were to agree with that, if we were to say that our choice of treble damages and their choice of single damages represented a true conflict, and that is we were undercutting a policy judgment by them, the solution would not be to eliminate the jurisdiction that Congress conferred in the Sherman Act. It would be to say you can't get greater damages here than single damages, because that's the norm. That would be the solution. If the position is that comity, Congress intended comity to carve back, what you would say is that Congress would have intended in this instance not to allow the foreigners to get treble damages. Ruth Bader Ginsburg: What about a forum non conveniens policy that says, you're a foreign purchaser, you purchased abroad, you have a nice forum abroad to go to, don't burden the U.S. courts. Thomas C. Goldstein: Absolutely. There's no question that... I just cannot remind you enough times that the petitioners are attempting to seriously jump the gun. There was no forum non conveniens argument below, there was no comity argument below, there was no conflict of laws argument. All of those... for example, if there is a legit... and in fact I can give you an illustration. There is a private class action ongoing in Australia. We have already had one of our claimants drop out of the case and go to Australia, because everyone recognizes that's where your remedy is at. We have, however, a dilemma that Congress recognized, and that is, as Justice Scalia said, with respect to the great majority of the world, and we cite in our brief the OECD's formal report on cartels, the seminal report to the Attorney General on international antitrust, a source after source after source that says there is grave under enforcement of cartels, and I can illustrate it here with two facts. The first is, with respect to more than half of the volume of commerce in bulk vitamins, more than half of it, they are going to get away with it. And that leads to the second fact, because there's no enforcement, public or private, that leads to the second fact, and that is, if they win here, they will net from activities that are per se illegal under Sherman Act, net, net, net, $13 billion. That is not a message of deterrence. So, Justice Ginsburg, that's quite right. There are mechanisms for dealing with the fact that there are other remedies. I would just put back on the table the one that says, look Congress would not have intended-- Stephen G. Breyer: I don't really see what it's doing on the table. I mean, it didn't require a Nobel Prize winner to make me figure out that in fact the worse you treat the people who make the cartel, the less likely they are to do it. But I mean, fine, you're right, if you hung and quartered them or whatever, they'd do it even less. But what... what is that to do with the price of fish, so to speak? Thomas C. Goldstein: --It... it's the judgment that Congress made, Justice Breyer, in the worldwide markets that Justice Kennedy referenced in the first half hour, and that is that we will be hurt, unless we go after them. But it doesn't mean, Justice Breyer, that we go after them for every Section 1 or every Section 2 violation. So let me come all the way back to your original question, and that is, okay, why is the comity analysis different here and there? Justice Ginsburg pointed to one argument that I was making, that's this is per se illegal. It is... the second point is that there are disagreements, it's related, there are disagreements about whether the primary conduct is illegal in that instance. They don't think a monopoly is a bad thing. But what we do know is that everyone agrees that price-fixing is bad. It is not an infringement on their ability to regulate primary conduct. If, for example, there was a country that said, we love price-fixing, I mean, we just think it's so much better if things are expensive, well, then that might be a different case and there might be a forum non motion, but there are no such countries. So it is a very, very, very different-- Anthony M. Kennedy: But... but I'm... I'm not sure that the rule you're advocating... you say that don't... don't worry about the other case, because your case is okay. But we are worried about the other case. Thomas C. Goldstein: --Yes, Justice Kennedy, I... I think that's right. I think that it is not sufficient for me just to say, look, there'll be a comity analysis later in the day. But I would say that we are articulating a rule, and it is a rule that is limited to-- Anthony M. Kennedy: And I'm waiting for that rule. Thomas C. Goldstein: --Okay. Anthony M. Kennedy: It's still on the table. Thomas C. Goldstein: The rule, Justice Kennedy, is that the Sherman Act applies, but unless there is a worldwide market, so that we can say that the injury to the person abroad is inextricably intertwined with the injury to the person here, that claim lacks antitrust standing because it will not directly advance U.S. interests. It is not necessary to advance the protection of U.S.-- Stephen G. Breyer: So you have flushed them all out that way. Now, the ones you have left, which is yours which you like, why can't you bring... fit right within the language here that where this worldwide market is in fact such that its price in Bolivia is never going to hold up unless the price in the United States holds up if you've got the necessary causal relationship to effects in the United States. That's the second half which you said we should remand. I mean, maybe that's a good half. What's wrong with that? Thomas C. Goldstein: --No, we're... Justice Kennedy, let me relate this to your question. That is, Justice Breyer is saying, look, the first argument in the red brief is this, this is a case in which the effects in the United States... and I will come to your Illinois Brick objection, Justice Scalia... the... the effects in the United States did give rise to our claims. He says, accept what they say, accept the Fifth Circuit's rule. Look, if the cartel had not operated in this country, it would have collapsed, he doesn't need a Nobel Prize, we have one in case you did, and that means that our people were injured. We accept that. It's the first argument in our brief. It means that the... it limits out all of the cases that you were worried about, Justice Breyer, because in a monopolization case that won't be true, unfair trade practices, that won't be true. And then, Justice Ginsburg, notwithstanding that we have a narrow field of cartel cases, there are only six that have been filed, there are still other options on the table for limiting the claim in the instance that there is an available foreign remedy. So that's how it would work. We would accept their argument, we would say there's a narrow class of cases that, Justice Kennedy, are a true worldwide market where Congress recognized that, in cases like American Tobacco that it had in mind in the 1982 Act, and then we say, look, that's it, that's the full ball of wax, we don't become an imperial source of law for the world. That's how we would analyze the case. Now, we think that that too addresses any concerns about manageability-- Ruth Bader Ginsburg: If you think that the forum non conveniens point would work, let's say, for our trading partners who have told us they don't like treble damages in any case, so are we going to make a distinction then and accept the complaint of customers, purchasers of vitamins in countries that don't have any antitrust laws, but we would reject claims coming from, say, the U.K. or Canada? Thomas C. Goldstein: --We would reject claims from places like Australia and Canada and the like, that's right. If they have any sort of regime that they have decided to build up, if they've enacted into law, and it's a viable regime for vindicating interests, so that the client being here isn't necessary-- William H. Rehnquist: Well, but that... that in itself is a rather elaborate inquiry that you find nowhere in the statute. Thomas C. Goldstein: --Well, Justice... Mr. Chief Justice, the reason is that forum non conveniens is a principle that's generally applicable to the law and-- William H. Rehnquist: Yeah, but forum non conveniens is ordinarily not that you have different law, but there are other factors that make it inconvenient to try the case. Thomas C. Goldstein: --Mr. Chief Justice, that's right. I think Justice Ginsburg's view is that where we have-- William H. Rehnquist: Well, she's perfectly capable of speaking her own view. If you'd just answer your... my question. Thomas C. Goldstein: --Mr. Chief Justice, those factors are relevant. I think that a principle factor in the forum non analysis would be, could you go somewhere else and vindicate your claim? I think maybe that should be a very important part of the analysis. William H. Rehnquist: But... but the people from Canada cannot go somewhere else and vindicate their claim because the Canadian law is different. Thomas C. Goldstein: Mr. Chief Justice, they do have a competition law. They've filed a brief in this case, as have a limited number of nations. Justice Scalia points out that most don't, and that's, I think, an important manageability-- William H. Rehnquist: But I... I thought your answer was that the ones that don't can sue here, and the ones that do can't sue here. Thomas C. Goldstein: --Yes, Mr. Chief Justice. William H. Rehnquist: But then you said a moment ago, I thought, that the Canadians could sue here, but I... now you're saying they'd be turned away. Thomas C. Goldstein: I then misspoke, Mr. Chief Justice. Thomas C. Goldstein: Well, you sure did. Thomas C. Goldstein: Yes. I then misspoke. If you... I think there's an extremely strong argument that if you can go somewhere else, if there's some substantial remedy available in another country, then you can go somewhere else. But they didn't file that motion because they're trying to get rid of the case with respect to the majority of bulk vitamins commerce and with respect to most of the commerce in these worldwide markets for which there is no remedy. That's just a fact. Antonin Scalia: But would you get to my Illinois Brick question before your time runs out. Thomas C. Goldstein: Yes. Antonin Scalia: And just so I put the question as... as clearly as possible, it seems extraordinary to me that if this... if a foreign company had been injured by buying drugs from an American company that bought them from the conspirators at an excessively high price, that foreign company would not have a cause of action. But you're saying that a foreign company has a cause of action by reason of the fact that had the American company not purchased at the artificially high conspiratorial price, but at a lower price, they might have purchased from that... from that intermediate person, and... whereas Illinois Brick would clearly bar the first suit, you're saying it doesn't bar the second suit as a rationale for allowing them to sue here, and that strikes me as very strange. Thomas C. Goldstein: There are three answers, Justice Scalia. The first two relate to the technical requirements of Illinois Brick and the third explains why you shouldn't read Illinois Brick to bar such claims. The first is that we're not merely talking about arbitragers. We're talking about, there are companies in the United States that made vitamins and they would have sold to our clients absent the cartel. The intermediary isn't a necessary part of the picture. The second is that even though you buy from an intermediary, under Illinois Brick you still have a claim, and that is you have a right to bring an action for an injunction. The third is that, look, our reading, the one that says, and that Justice Breyer has hypothesized, accept what they're saying and allow the claim only if the injury is tied into a worldwide market. That's a reading that protects U.S. interests. To say that Congress set up the structure, whereas... that would allow you to look at the foreigners through clause 2, but eliminate of their claims on Illinois brick grounds, would render the statute and its... its provisions against cartels ineffectual. Antonin Scalia: As far as your first point is concerned, I understand the other side to concede that if you could demonstrate that you would have bought from one of these American companies that manufactured in connection with this conspiracy and sold at the conspiratorial price, you would... you would have a cause of action. That clearly would have... would... would be... affect the export commerce from the United States. Thomas C. Goldstein: Two answers, Justice Scalia. The first is, I disagree. They do not concede that. They regard that as a hypothetical purchase, to use Mr. Shapiro's words, it didn't happen. And the second is, and this goes back, Justice Ginsburg, to a question you asked in the first half hour, the reason we don't have... thank you. William H. Rehnquist: Thank you, Mr. Goldstein. Now, Mr. Shapiro, you have four minutes remaining. Stephen M. Shapiro: Thank you, Mr. Chief Justice. The court of appeals and Mr. Goldstein have relied on the deterrence concept here, but it's important to remember that the Government, supported by seven of our allies and trading partners, has said that this position is going to undermine deterrence. Why? Because it's going to reduce the detection of international price-fixing cartels, and you get zero deterrence if you don't have actual detection of overseas cartel behavior. The key to getting the detection is the amnesty program and international cooperation with our allies, and right now, our allies are shrinking away from the United States, information-sharing agreements that are needed here to investigate and prosecute cartels. The Justice Department officials have been giving speeches about that bad effect, so there's a very serious danger of undermining deterrence here if this position is accepted. Now, on comity of nations, that is not a judicial balancing of one factor and another equitable factor. That's a rule of statutory interpretation that this Court has applied ever since the Charming Betsy case 200 years ago, and what it means is that if a particular alternative is presented that broadly construes our laws to intrude into the affairs of other nations and cause friction, that interpretation is going to be rejected, and that was certainly not rejected in the Hartford case. Professor Areta, in his treatise, pointed out that our antitrust laws do not rule the entire commercial world, and that's a concept that's written right into Section 1 of the Sherman Act. It applies to... its domain is commerce among the states and commerce with foreign nations, not commerce within foreign nations, not commerce between foreign nations. And the reason the FTAIA drew the sharp lines that it did is the reason that Justice Breyer was driving at. Other nations have their own policies. They disapproved treble damages. They have their own procedures for dealing with antitrust issues instead of per se rules and rules of reason, they have prohibitions and then a series of exemptions applied by expert administrators. So if our courts take these issues over and apply treble damages remedies, they override procedure, they override the... the substance of these laws, and... and they are certainly going to override policies against treble damages, which have provoked huge international discord in the form of claw-back statutes, blocking statutes. Our closest allies have responded to overreaching that way, and Congress wanted to minimize that problem with passage of the statute. Now, the Timken case that counsel referred to was a case where the Government was going after contracts overseas that injured our commerce. The Government was not going after practices overseas that had effects overseas and not here. Counsel referred to the weight of scholarship. I read all those articles. There's only one of them that suggests that everybody in the world can come trooping into our courts if some person here has an antitrust claim from two private practitioners who had no background in the Government. They simply asserted that without any analysis. I don't think that constitutes weighty scholarship. Now, the National Bank of Canada case that counsel referred to, if in fact that's the case that Congress meant to approve, that means they're out of court, because that's a case where the complaint was dismissed because the injury was felt in Canada and was not felt in the United States, and the Second Circuit dismissed that claim as a matter of law. Now, on this worldwide market point, the... the statutes here hinge jurisdiction on commerce. Lawyers can always draw a global conspiracy. Economists can always say there's a global market, and these issues would be enormous quagmires for the district courts if that's what our courts' jurisdiction turned on. Congress did not intend that. It intended a clear jurisdictional benchmark by focusing on our commerce. There has to be an injury to our commerce and the plaintiff before the court has to be alleging treble damages based on that particular injury. In... in light of these considerations, the Justice Department's position, the position of our allies, who have submitted amicus briefs, we submit that this decision is an error and it should be reversed and I thank the Court. William H. Rehnquist: Thank you, Mr. Shapiro. The case is submitted. Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Earl Warren: Number 396, C.J.D. Rudolph, et al., Petitioner, versus United States. Mr. Freling. Richard A. Freling: Mr. Chief Justice, may it please the Court. This case arises out of a suit for refund of federal income taxes. Petitioner C.J.D. Rudolph works in Dallas as an ordinary life insurance agent for Southland Life Insurance Company, a major insurance company whose offices are also in Dallas. In 1956, he and his wife attended a convention of Southland agents and officers in New York. And their transportation, accommodations and their meals were arranged and paid for by Southland. The basic issues involved in this case are first, whether or not the amount of convention expense allocable to petitioners which has been stipulated by the parties to be $560 is to be includable in their gross income and if that question be answered in the affirmative whether petitioners are to be allowed an ordinary and necessary business expense deduction for an equivalent amount. Respondent contends that the convention trip was a bonus to petitioners and therefore his income and that their expenses were primarily personal and therefore not deductible. We contend that petitioners were taken to New York by Southland for business reasons without regard to compensation and that the cost attributable to their trip are not income to them. Alternatively, we contend that if they are charged with income, the expenditures thereby imputed to them were incurred for ordinary and necessary business reasons and are therefore deductible. Once every year and a half for the past 20 years or more, Southland has sponsored a convention of the type involved here to which it invites certain of its agents and their wives and the top officers of the company and their wives. Potter Stewart: You say this is not annual. It's every year and a half? Richard A. Freling: That's correct, sir. Once every 18 months. Potter Stewart: Two every three years or so? Richard A. Freling: Yes, Mr. Justice Stewart. The agents invited to attend are selected on the basis of their having sold or prescribed minimum amount of insurance, which the company believes as the most appropriate standard for determining who has an aptitude for the business and who had benefit from the convention. When an agent is invited to attend, both the agent and the company believes that it is part of his responsibility and a part of his job to do so. If he fails to attend for any reason, he receives nothing in lieu of the convention. The 1956 convention activities lasted approximately one week of which about four days were spent traveling on trains, chartered trains to and from New York City. They spent about two days in New York, Friday and Saturday. Friday morning was devoted to a formal program of speeches by the top officers of Southland to a panel discussion of agents and several lecturers on the agency program. John M. Harlan II: (Inaudible) Richard A. Freling: Yes, sir. John M. Harlan II: (Inaudible) Richard A. Freling: No, Mr. Justice Harlan, they do not. John M. Harlan II: (Inaudible) Richard A. Freling: They do not get a check for anything. All the -- except to a very limited extent. Southland arranged all the transportation, the hotel accommodation, rooms, meals and paid the expenses directly. No money was given to petitioners themselves except $30 which was given to every couple to take care of unplanned meals in New York. Other than that all the expenses were paid directly by Southland. John M. Harlan II: (Inaudible) Richard A. Freling: That is correct -- John M. Harlan II: (Inaudible) Richard A. Freling: Mr. Justice -- Yes, sir. William J. Brennan, Jr.: Well, how was the amount identified? Richard A. Freling: Well, the record indicates that the total convention cost as computed by Southland accountants was figured and then just divided, I assume, by the number of people in attendance. William J. Brennan, Jr.: And was each one in attendance apprised to what his portion shared to (Voice Overlap)? Richard A. Freling: No, sir, he was not. William J. Brennan, Jr.: Well, how did this issue get up this way? Richard A. Freling: Well, this was -- when the Government raised the issue as to what was taxable to the petitioners and an investigation was made, it was determined that this would be the appropriate amount that this was the total cost to the convention divided by the number of people in there. William J. Brennan, Jr.: And the taxpayer has not included this? Richard A. Freling: No, sir, he had not included it in his -- William J. Brennan, Jr.: And about the deficiency assessment? Richard A. Freling: A deficiency was assessed. Felix Frankfurter: The total was added to his appropriate need to be recorded, to be -- Richard A. Freling: Yes -- Felix Frankfurter: -- a filed income? Richard A. Freling: Mr. Justice Frankfurter. The total amount that was allocable to the petitioners as computed by Southland. Felix Frankfurter: Was that an issue of income? Richard A. Freling: Yes, sir. William J. Brennan, Jr.: And now, this, as I understand it, is the proportion of share, the total expense, transportation, room, meals -- Richard A. Freling: That's correct Mr. Justice -- William J. Brennan, Jr.: -- all of the rest. Richard A. Freling: -- Brennan. Felix Frankfurter: And you say -- Richard A. Freling: Of it -- Felix Frankfurter: -- proportionate, what does that mean? Richard A. Freling: Well, I assume, it's -- I would use the term "allocable" that the total cost were divided by the number of people in attendance. Felix Frankfurter: Oh, oh, yes. I get it. Hugo L. Black: How do you say they qualified to attend the -- Richard A. Freling: They had to meet a standard of having sold a prescribed minimum amount of insurance in the preceding year. And they were then eligible to be asked by the company and the company would invite them. Felix Frankfurter: But when you get it around to it just both you and Mr. Jones would point out the difference of -- the analogy between something that happened to me before I came down and dispose namely, once a year there's a meeting of the Association of American Law Students, each law students sends the delegation of law professors to meetings and that was -- the expenditure was covered by the law -- this was (Inaudible) -- I don't know what happens now, was covered by the law schools, somebody, I think I'm not sure; my recollection is poor. But the -- certainly the traveling expenses were centrally taken cared of. Now, I cannot even tell you what was done or what should be done. I just want you to keep that in mind (Voice Overlap) -- Richard A. Freling: Well, Mr. Justice Frankfurter, I hope to touch on that point expressly by an analogy. It is our position that the cost of your trip shouldn't constitute income to you in the first instance.But if by some reason they're caught within the broad web of gross income and you should be allowed an ordinary and necessary business expense deduction. Felix Frankfurter: But the Government's position is that it is arguable that in going to those Christmas time meetings, the cost of going there, the railroad expenses in those days, by hotel rooms, etcetera was part of my income. Richard A. Freling: Well, I cannot speak for -- Felix Frankfurter: No, no. I don't mean that case -- Richard A. Freling: -- Government counsel, Mr. Justice. Felix Frankfurter: -- but that's my -- Richard A. Freling: I would say that the situation is analogous. Yes, sir. Felix Frankfurter: Alright. Richard A. Freling: After the formal business program, everyone attended a luncheon at which Dr. Norman Vincent Peale gave an address on the subject of success through right speaking. And the remainder of the time in New York was devoted to a group, a sightseeing tour, a breakfast and fashion show for the wives of the agents and a planned dinner at the Copacabana. Southland also provided tickets for a special Christmas show at Radio City Music Hall and other periods were designated as free time. In the suit for refund, the District Court for the Northern District of Texas sitting without a jury has sustained respondent. And the Fifth Circuit affirmed per curium on the basis of its recent prior decision in Patterson versus Thomas with Judge Brown adding his dissent in this case to his prior dissent in the Thomas case. Now, because the trial court held that the convention trip was in the nature of a bonus and primarily a vacation to petitioners, respondent would quickly reduce the issues in this case to simply whether or not the fact findings of the District Court are clearly erroneous. We submit that the case is not so simple. In our opinion, the case involves important and compelling questions regarding the very basic concepts of gross income and ordinary and necessary business expense. We believe there is a need for clarification and refinement of the broad principles previously established by this Court. As those principles are now applied to two phenomena of -- on modern business practice. William J. Brennan, Jr.: May I interrupt you? Richard A. Freling: Yes, sir. William J. Brennan, Jr.: Is your position one that it's not includable in gross income or if it is that it's deductible also as an expense or it washes out? Richard A. Freling: Yes, Mr. Justice Brennan that is. We believe that that these principles now have to be refined as they are applied to two things which occur everyday on our business community. First, the company convention and second the compulsion or the coercion by employers upon their employees that the employees participate and what the employer believes to be a legitimate and necessary business activity. If we're correct in interpreting this need, then the responsibilities of the trial court in this case should be restricted to their narrowest sphere not expanded as the respondent would do to the utmost which might in some other circumstances be permissible. With the law governing a tax controversy is undefined and particularly where the principles of law involved are far-reaching. And the trial court has drawn inferences from the undisputed evidentiary facts or has decided ultimate facts which are dispositive of the case. Then we submit that this Court or indeed any appellate court shouldn't hesitate to exercise its broadest powers of review because the danger is great that the trial judge may have approached his job without knowledge or consideration of the applicable law or even worst that his understanding of the applicable law may have been erroneous. And that's exactly what happened in this case we believe. We believe the findings of fact are clearly erroneous. But we also believe that such findings were predicated on an error of law resulting either from mistake in interpreting the governing legal principles or the failure to recognize that those legal principles even existed. In either event, we submit that this Court should not now restrict its reviews simply to determine whether or not the fact findings of the District Court are clearly erroneous. In our opinion, the error of the District Court is apparent since he indicated that he wasn't concerned with the purpose of Southland in holding the convention. And if it please the Court, I should like to quote very briefly from the record, on page 79 in the District Court's opinion towards the bottom of the page he states, "It is the purpose of the convention to the taxpayers which governs our action, not the purpose of the insurance company in holding them. Yet, this would seem to be the single most important determination in the case." And as respondent apparently agrees with us in his brief, and if my indulge the Court once more to quote from respondent's brief at page 11 he states, "Both parties are -- agreed that the relevant ultimate facts upon which the legal questions in this case turned are (a) the reasons why the company sponsored and paid for the trip, and (b) the reasons why petitioner and his wife took the trip offered by the company, and it slightly regard to the (b) part of the sentence. He suggest elsewhere in his brief at page 28 that the purpose of Southland in holding a convention is vital and important in determining the purpose of the petitioners in attending. Potter Stewart: Aren't you talking about -- which fraction of this case you're talking about? I just -- I think this -- the opinion on page 79. Richard A. Freling: Yes. Potter Stewart: If you're talking about the deductibility of these expenses by the taxpayers that is the purpose of the taxpayers to which you look, is it not? Richard A. Freling: Well, yes, Mr. Justice Stewart. Potter Stewart: Rather than the purpose of the company? Richard A. Freling: That is correct. But the purpose, the subjective purpose of the taxpayers in attending the convention is gleaned largely from the purpose of the company, their employer in holding a convention and requiring them to attend. Potter Stewart: Well, it would seem to me, and you tell me if I'm wrong and if so why, that when you're talking about whether or not this is income to the taxpayer, then the purpose of the company becomes a dominant relevance. When you're talking about whether this is deductible, if income whether it's deductible by the taxpayers as a business expense. Then the purpose of the taxpayer in making the trip becomes a dominant relevance, is that correct? Richard A. Freling: Mr. Justice Stewart, that's correct that the purpose of the taxpayers on the expense side of the case is the ultimate question. But in arriving in that determination, it's not possible to separate the business purpose of the company from the business purpose of the taxpayers because -- Potter Stewart: No -- Richard A. Freling: -- this wasn't an independent pleasure joint which they took of their own volition. This was something that they did -- Potter Stewart: Well, that -- Richard A. Freling: -- in response to -- Potter Stewart: -- that's kind of begging the question here. That's the question, isn't it? It's the purpose of the taxpayer though that -- which is relevant -- Richard A. Freling: Yes. Potter Stewart: -- in determining whether or not this is a -- Richard A. Freling: Yes. Potter Stewart: -- business expense to the taxpayers, isn't that true? In other words, if an insurance salesman takes me to lunch, it's his purpose in taking me to lunch it's important in determining whether or not that lunch is deductible from his income for tax -- federal tax purposes. Richard A. Freling: Yes, Your Honor. Potter Stewart: Not my purpose in going with him? Richard A. Freling: Yes, Your Honor. Potter Stewart: He takes me to lunch to sell me insurance then it's perhaps deductible. Richard A. Freling: I agree, Your Honor. But on the other hand, if your employer required you to do something to go lunch with him and you went and you were charged with income by virtue of his buying your lunch then the reason why you attended is important in determining -- or is the ultimate issue in determining whether you can deduct the cost of that lunch but his purpose in asking you is also relevant. Potter Stewart: Aren't you -- the deductibility of -- Richard A. Freling: Yes, yes, Your Honor. Potter Stewart: -- the lunch and the bill from his income. Richard A. Freling: Well, also if you were charged with income by virtue of -- Potter Stewart: Now, are you getting in the third -- that's a third, that's a question not involved here I take it to be. Richard A. Freling: Well -- Potter Stewart: He's not my employer. Richard A. Freling: Yes. Well in our opinion, because of the error of the Court in not considering the business purpose of Southland in holding the convention -- Felix Frankfurter: May I ask you? It's not clear to me that the relation of these convent -- what are does this call, conventions? Richard A. Freling: Yes, yes, Mr. Justice Frankfurter. Felix Frankfurter: Is the relation of the expenditure of the convention purposes to the employer unrelated with the problem before us? If the relation -- are we unconcerned with the bearing of the money outlay by the insurance company were these -- were the physiques by their agents at this convention, is that -- are we unconcerned with that? Richard A. Freling: No, Mr. Justice Frankfurter. I think we're very vitally concerned with it. I think that the purpose of Southland, the company in spending time and money and effort in planning and paying for and holding these conventions goes to the very heart of the case because it demonstrates both the business purpose in Southland in holding the conventions and the reasons why they required the agents to attend and why the agents responded and attended. I think it is -- Felix Frankfurter: But then -- Richard A. Freling: -- is directly relevant. Felix Frankfurter: -- in the case of an employer, of a potential insured, sending an employee of his to talk with a fire insurance agent and you're going up -- to go with him at lunch for which the agent pays, the relation of that to his employers' activity is relevant, isn't it? Richard A. Freling: Very definite sir, extremely so. If I may jump ahead in my own timetable of argument, I hypothesize for a moment. Suppose that the -- an employee of a Dallas based company is required by his employer to travel to New York City to close a long term loan with the Wall Street financial institution and that he returns immediately when his loan is consummated. And suppose further that the employer arranges accommodations, his transportations and his meals while he was there and paid for them directly. I don't think anyone would seriously contend that the cost of that trip should be taxable to the employee as income. But the appropriate inquiry is why? Well, we -- I think that the reason, the answer is found in precedent and practicalities. The dominant business purpose of his employer was the reason why he took the trip in the first place. The trip wasn't intended as compensation. And his only gain was the subjective pleasure which he may or may not have experienced by virtue of his position. Felix Frankfurter: But there's another gain, he stayed at home, he would've had to pay for his own meal and board. Richard A. Freling: I think that's true, Mr. Justice Frankfurter. But I think that answer was resolved in 1921 when they enacted the statute and permitted the deductibility of all meals and lodging away from home. So our position on the income side of the case is that there are limited exceptions to gross income other than those specifically enumerated in the statute. And we state this board recognizing full well the perva -- the pervasive characters brought to gross income by this Court. For it seems to us that those very decisions which established that broad character also recognized intrinsically that not every things received by a tax gain, not every gain in a classical economic sense constitutes income too. We're not now asking the Court to restrict its broad definition of income. To the contrary, we're asking only that the Court expressly recognize the non-taxability of something that lies beyond that definition, which we don't think has ever been precisely defined or delineate. Felix Frankfurter: Is there a statutory definition of gross income? Richard A. Freling: No, there's not. Gross income is just gross income. Felix Frankfurter: Gross income is whatever gross income is -- Richard A. Freling: Yes, sir. Felix Frankfurter: -- need to be. Richard A. Freling: Now, we believe that this rational and the law of governing the hypothesis which I posed is entirely consistent with the Court's decision in Commissioner versus Smith that compensation in whatever form constitutes income. And we think it's also consistent with Commissioner versus Glenshaw Glass Company wherein the Court noted that the damages received for fraud or any trust violations resulted in undeniable accessions to wealth clearly realized and over which the tax per head complete dominion. That the trip taken by the employee in my hypothesis wasn't intended his compensation nor did he clearly realize any benefit, any accession to wealth over which he had dominion. He's actions were governed and controlled by the dominant business purpose of his employer. We believe that petitioner stand in basically the same shoes as the employee in my hypothesis. The only distinction being that they were personally involved in the business purpose of a company. Thus, an effort must be made to isolate that business purpose from a simple intent to compensate. But once it can be established as we believe the uncontroverted testimony as established here. That the dominant motive and reason for the company sponsoring the convention was its own business purpose. That the convention was germane to that purpose based upon long standing interest, industry-wide experience and that there was no intent to compensate petitioners. And it seems clear to us that they received nothing which it constituted income, too. Our position on the expense side of the case is similar too because we believe that the same basic facts that support an exclusion from gross income also when turned around confirmed the presence of ordinary and necessary business expenses. The trial court ignored Southland's business purpose in holding the convention. It ignored the compulsion upon the petitioners to attend. It ignored the relationship between the convention and petitioners own business. Instead, the court apparently looked only to the outward or extrinsic appearances of the convention in holding contrary to every bit of the oral testimony that the convention was in the nature of a vacation. In the phase of what would seem the obvious, an overwhelming relationship between the convention and the agent, this would be exceedingly difficult to understand except for the trial judge's own admission that he wasn't concerned with the business purpose of Southland in holding the convention. Now, respondent attempts to justify this fact conclusion on the basis of two erroneous legal premises. First, he compares the times spent at the formal program on Friday morning with the total period covered by the convention as if this were conclusive of a non-business purpose. The error in this approach is two fold. It assumes first that informal activity at a convention cannot have a business purpose. But the management of Southland testified that the program was expressly designed to permit the agents and the officers to mix and mingle together in an informal atmosphere and that the exchange of ideas occurring in this manner probably was the most important business benefit of the convention. Shoptalk at a convention is a part of the business of a convention. And it need not be conducted in an auditorium to be so. In the second place, respondent's comparative analysis treats the travel time to and from New York as being a sterile thing which gain its tax character solely from the activities at the convention site but this couldn't be further from the facts. Southland intentionally chartered special trainings on which it required the agents and the officers to travel together so that they would have an opportunity with little else to do to talk about the insurance business. We believe therefore that the -- that the travel itself had an independent business purpose. If we had the travel time to the formal time of the program, we have four-and-a-half days spent in strictly businesses compared to one-and-a-half days in informal activities which we also think have legitimate business purposes. So, on the basis of respondent's own promise is that each expense should be deductible. His next error is an ignoring the company's insistence that Rudolph and his wife attend the convention. We believe it's legally significant when an employer required that an employee participate in what the employer in good faith believes to be a necessary business activity. What is the employee to do? What should any hardheaded business man do except to comply with the request of his employer? Sure, he couldn't argue with his employer about whether or not the convention bore a sufficient business relationship to his own business to warrant his attending particularly where this has been an industry-wide practice for 30 years or more. Felix Frankfurter: He could suggest that he doesn't want to go on a joy ride? Richard A. Freling: Yes, he certainly could, Mr. Justice Frankfurter. I don't know what his employer's reaction might be. We believe that when Rudolph accepted the company's invitation to attend the convention, he was acting in a way that was realistically indispensable to his business. And I think that the evidence before the Court demonstrated that there was a reasonable business relationship between the convention and Rudolph sold in business as an insurance agent. If so, his expenses were both ordinary and necessary and directly related to his business. John M. Harlan II: Did some of the employees not attending? Richard A. Freling: Yes. John M. Harlan II: Does the record show? Richard A. Freling: Yes. John M. Harlan II: How many couples? Richard A. Freling: Out of approximately 300 agents, 102 attended the convention Mr. Justice Harlan. Hugo L. Black: How many were invited there? Richard A. Freling: I think that there were few more who were invited and actually attended. Hugo L. Black: That depends largely on the amount of insurance they've written the year before? Richard A. Freling: Yes, it does. There is a standard prescribed that the agent has to meet in order to be eligible to attend. But I wish to make this point although my time is running short, that every business must have a standard for judging which of its employees are going to be advanced or brought into inner circle or give a special training. An associate in a law firm might be judged on the clarity of the contracts he writes. But in -- an insurance agent job is selling insurance. This is the only thing he does and it's the only method by which the company can judge his performance. Felix Frankfurter: But why doesn't -- why doesn't it, the mode of selection show that it is -- becomes of function of reward rather than a compulsion of duty or a manifestation of requirement. Richard A. Freling: Well, we think that that -- Felix Frankfurter: If it's related to how much insurance you'd written and you therefore say, "You're a good boy. You go out to Miami or to Palm Beach." Richard A. Freling: Well, it's not as simple as that Mr. Justice Frankfurter. All they wanted to do was to pay a bonus to their agents. They could just give him the money and tell him to go to Florida. But they don't do that. They plan a convention based upon years of experience with expressed business purposes marked. And they require the agents to attend. If the -- if it was their desire simply to give a bonus, they certainly wouldn't require that. Furthermore, they still had to be invited even though they satisfied the minimum standard of selling insurance. They still -- the record indicates that they still had to be invited by the company. Third of all, there was no great agent among the agents as to how much insurance they sold. One may have sold $2,000,000 and another $400,000 and they were still -- but they all still received exactly the same thing. The emphasis, the dominant purpose on -- of the company was not to reward or pay a bonus. Although, certainly that the petitioners may have enjoyed the trip but this wasn't the basic primary emphasis of the company, it was something else. It was something much more complex indeed. It was involved in modern business psychology and practices. John M. Harlan II: How many were eligible? Richard A. Freling: 300. Felix Frankfurter: Out of the eligible -- Richard A. Freling: Eligible to -- John M. Harlan II: -- they happen to receive the invitation or -- Richard A. Freling: No, I don't -- I don't know, Mr. Justice -- John M. Harlan II: What I wanted -- Richard A. Freling: -- Harlan. John M. Harlan II: -- to find out is how much were eligible and how many actually were invited? Richard A. Freling: The record indicates that there were 102 agents eligible in all but 10 or 15 attended the convention. I have just a few moments and rather than continue, I'd prefer to reserve the remainder my time for rebuttal. Earl Warren: You may. Mr. Jones. John B. Jones, Jr.: Mr. Chief Justice, may it please the Court. Let me make clear at the outset that the Government does not dispute that there are some businesses assemblages which employees can attend and they can receive their reimbursement and there won't be any tax consequences. And these business assemblages can take place at a resort spot or a tourist spot can be solely for the employees of one company. These are not conclusive factors. But the Government does insist that not every trip which an employer chooses to call a convention is a business trip. There must be some tests which enable us to determine whether we have a business trip or a pleasure joint. To take Mr. Justice Frankfurter's question which he asked that I addressed myself to referring to an annual meeting of presumably law school professors around the nation, if it is found that a meeting for program is conducted at the site of this meeting and if its further found that the law school professor goes to this meeting and participates to a reasonable extent has his discussions with his fellow professors and this is essentially business oriented. Of course, we make quibble about whether he puts it in income and then deducts his funds or whether he never puts it in income at all. But the -- it is clear that he has no tax consequences.But it is also clear that it would have irrational revenues. Potter Stewart: Well there wouldn't be any income in that case, would there? John B. Jones, Jr.: Well I used the word "quibble." Potter Stewart: I mean the ordinary -- the ordinary professional meeting a person goes and pays it on his own expense and then deducts him from his (Voice Overlap) -- John B. Jones, Jr.: Well, I think Mr. Justice Frankfurter suggested that his -- Felix Frankfurter: (Voice Overlap) -- John B. Jones, Jr.: -- travel fare was paid by somebody else. Felix Frankfurter: That's what I'm talking about. And most of those who go there do not participate in any formal program and most of it, if I can go on my experience, or to talk since most of it is talk in the corridors and in the bar room. John B. Jones, Jr.: Well, certainly -- Tom C. Clark: But you see wha -- what -- what happens is that young ones are looking for jobs and the old ones are there to look over the (Voice Overlap) -- John B. Jones, Jr.: Well, I believe there's respectful authority that expenses of looking for a job are -- do get you in trouble on deduction. If you're -- William J. Brennan, Jr.: Well, Mr. Jones what about the judicial conflicts which Uncle Sam pays us $30 a day in expenses and transportation to go to Atlantic City which is the -- John B. Jones, Jr.: $30 a day for expenses. William J. Brennan, Jr.: $30 a day for expenses plus transportations. John B. Jones, Jr.: There is a difference between $30 and expenses. William J. Brennan, Jr.: Well -- John B. Jones, Jr.: Yes. William J. Brennan, Jr.: Do you think it's a technical words that -- John B. Jones, Jr.: No, I -- we would -- it would seem to us -- William J. Brennan, Jr.: Well, I mean what happens there where you often as much as Justice Frankfurter described what happens if law professors -- John B. Jones, Jr.: But there are some sessions at a judicial conference by and large those who -- William J. Brennan, Jr.: What's the agenda? John B. Jones, Jr.: Pardon? If we found a case of a member of the judiciary attending such convention and not attending any of the formal sessions, it might be well to have an inquiry just what he did do at his time.But I would think in the case you've posed that you could make a pre -- Felix Frankfurter: Not really. You don't really mean that you could find out to what extent, you're present inside of a big room or so, that's even more important thing (Inaudible). John B. Jones, Jr.: Well, I'm not saying that the sessions are inclusive. I would think that it would be incumbent on somebody claiming that this is a business trip to say something about what he actually did at this convention. Felix Frankfurter: I conveyed a short for you Mr. Jones if I may suggest that the statute requires attendance. William J. Brennan, Jr.: Oh, I don't know -- Felix Frankfurter: Judicial contract. William J. Brennan, Jr.: Oh, no. John B. Jones, Jr.: Well, that -- that -- William J. Brennan, Jr.: Don't have to go to the (Voice Overlap) -- John B. Jones, Jr.: That's not my case. William J. Brennan, Jr.: -- judicial contract. John B. Jones, Jr.: That's -- I don't think Mr. Justice Brennan -- Felix Frankfurter: Well, I don't -- John B. Jones, Jr.: -- wanted to turn on that. Felix Frankfurter: Well, I don't need -- I'm not talking about what every Circuit justice by statute is supposed to attend by statute judicial conference of this Circuit, isn't that true? (Inaudible) Speaker: I think Justice (Inaudible). John B. Jones, Jr.: Well -- William J. Brennan, Jr.: I don't have to be -- John B. Jones, Jr.: I think the statutory compulsion -- Speaker: (Inaudible) John B. Jones, Jr.: -- outside which is certainly not present here. Hugo L. Black: Let me see, it's not Circuit judges in a party. John B. Jones, Jr.: Well -- Hugo L. Black: Why do you say it's not -- that element is not present here? John B. Jones, Jr.: Well -- Hugo L. Black: I think it was compulsory -- John B. Jones, Jr.: (Voice Overlap) -- Hugo L. Black: -- for them to attend. John B. Jones, Jr.: The statutory compulsion, I was -- Hugo L. Black: This is what (Inaudible)? Would there be any difference in the statutory compulsion and the employer-employee compulsion? John B. Jones, Jr.: Well, I'd be glad to turn to that point because I think -- Hugo L. Black: Well, I'm just asking if that was -- John B. Jones, Jr.: No -- yes, sir, but I do believe there would be. One of the things we would suggest in terms of compulsion is that that is not a magic test. And the easiest way I know to explain it is to give you the case of a man who's 48 years old working for the company. He gets called into the president's office. And the president says to him "Bill, you're 48. And we want to give your promotion and some new salary", and he says "Heck, no." He says "I like what I'm doing. I'm having a fine time. I just don't want anymore responsibilities." And the president says, "Sorry." He said, "You know, its company policy, you can't stay past 50 unless you come into the front office and we're going to insist you do it." And the employee then further says, "Well, I -- I'll come to the front office but I won't take the money." And he says, "No, we can't have that. We've got to front. You've got to take the money. And if you don't, you'll lose your job." The employee says, "Well, if that's the case, I'll do it." Now, there's pure compulsion we believe everything he says -- John M. Harlan II: Where do you find a generous hardly company man? John B. Jones, Jr.: I think it -- well, I think this is important because this goes to the whole point of -- we -- the Southland Insurance Company here is being generous in the sense in compelling this, if we accept their testimony, compelling this four insurance agents to take a trip to New York. They have to tell their wives and drag them along. It's a very sad thing. I don't really think that the case I posed is very different. And I don't think that compulsion is the test. Maybe one way to deal with it is to say that compulsion to be considered in the sense must be operative. It must be that the man, not that the company said it's compulsory but that that's the reason the man went. And when the benefit gets too great as in cash or a very pleasurable trip then we will take with a grain of salt and the testimony that the trip is required, if the company founds on it. That isn't why he went to New York. John M. Harlan II: It's conformity rather than compulsion. John B. Jones, Jr.: Oh, it's not conformity, it's greed. Hugo L. Black: Don't you think it's -- don't you think it's conceivable? John B. Jones, Jr.: He goes to New York because he wants to go to New York. He so testified that if they offered him this trip tomorrow, he'd take it. That's on page 43 of the record. Hugo L. Black: Don't you think it -- John B. Jones, Jr.: He made -- that's the whole crux of the case. There is no compulsion here. Hugo L. Black: Don't you think it's conceivable that a man wouldn't want to go to New York and unless he is compelled to do so? John B. Jones, Jr.: I -- certainly, it's conceivable. But I don't think it was operative here. This man said he'd go again tomorrow if he wanted to. If you can prove that compulsion is operative then I think it has some legal -- Hugo L. Black: Did they have a program at this meeting which was calculated to improve that the capacity of the agents to purchase insurance? John B. Jones, Jr.: To sell insurance? Hugo L. Black: And to inspire them to produce more insurance? John B. Jones, Jr.: There is certainly portions of this meeting, can be interpreted as having that purpose. They -- there was an inspirational address at the luncheon, there was talk about the company and its policies where it was going in the next year or so. There was two -- a morning meeting and then a luncheon immediately following. And that's all that happened at the convention. Hugo L. Black: Is it that -- is it a general rule that they do not allow tax -- taxing (Inaudible) will not allow deductions for things like these, for insurance companies? John B. Jones, Jr.: No. Hugo L. Black: Or do you decide it on the basis of what each convention was and what each one did there? John B. Jones, Jr.: That's correct. We would -- we would say -- Hugo L. Black: Suppose that another insurance company might call its agent New York and I presume do, the others can do it, aren't they? John B. Jones, Jr.: Certainly are, we have another one inserted. Hugo L. Black: And are they given deductions in some instances? John B. Jones, Jr.: Yes. But what it depends on is an analysis of whether we have here a business convention with the training of employees is significant to per dominant factor on the one hand or whether despite minimal trappings of a business convention, it is essentially a pleasure trip Felix Frankfurter: Your suggestion a little earlier, it isn't compulsion, is it compulsion? But compulsion isn't the determining quality whether it's a proper and necessary business expense. John B. Jones, Jr.: No, that -- Felix Frankfurter: Why do you even introduce compulsion? In a -- John B. Jones, Jr.: There's a -- Felix Frankfurter: particular -- John B. Jones, Jr.: -- suggestion by the petitioners here that it is completely unreasonable to include an income something which they are compelled to accept. Felix Frankfurter: We're comparing the sense of business practice, business pleasure and not compulsion. John B. Jones, Jr.: Well, I see. I -- I've -- Felix Frankfurter: Not displeasing the boss. John B. Jones, Jr.: But can't we highlight the issue if we strengthen -- I've -- I am giving them credit for more compulsion that is here operative and I said even if it was told in those terms, we still wouldn't let our 48-year-old man exclude from income the amount which he was forced to take. And if compulsion isn't relevant there then I don't think its relevant here where the compulsion is much less. Felix Frankfurter: I'm suggest -- I'm suggesting if business purposes affirms favor a strong desire that they meet together but that we'll just listen to a case, a different kind of compulsion. That exerts a force of pressure, an atmosphere which is very different from saying, "I want to go to Miami or Florida Beach to have a good time." John B. Jones, Jr.: That's true. I would think that the compulsion here though was operative only to say that I go to New York in 1956. Beyond that, I don't believe that there was -- that compulsion was the operative reason for the trip. Felix Frankfurter: Where do this initiate? Where do this originate? Where do the whole scheme gotten from? John B. Jones, Jr.: Of life insurance conventions? Felix Frankfurter: No, of -- in this case -- John B. Jones, Jr.: Well -- Felix Frankfurter: -- what was the moving force? Was it going also having a good time or responding to the needs expressly to the company, which was it? John B. Jones, Jr.: That we'd submit is a problem that is left to the trier of fact and we think he here answered it. That was clearly the pleasure aspects that predominated. If in a given case, the man wanted to show that there -- the accomplished business activities there, the trier of fact might be -- reach a different conclusion. But here, the trier of fact said that this was the taking of a pleasure trip by these people. Felix Frankfurter: Did all the claims of company interest is really the façade of the near or pretense? John B. Jones, Jr.: Well, or it can coexist. If you have a -- an intent to take a pleasure trip of this nature, it's not inconsistent that they coexist, the company intend to mobilize this general desire of their agents to take a trip to a far-off city. Felix Frankfurter: How about the other way around? The desire of the company to have their agents do something which as a consequence also, namely the people from (Inaudible) and Omaha and where not to New Jersey or New York? John B. Jones, Jr.: Well, in that -- Felix Frankfurter: If you put it the other way around then you'd -- then it would be different, would it? John B. Jones, Jr.: Well, we say that the inquiry here is which one predominates. We don't know any -- and it's never been suggested any other way out of the dilemma the regulations have explicitly made that the test that somebody has to determine in this post cases which mode predominates. Here the District Court laid his findings along the lines suggested by the regulation. The Circuit Court has reviewed and found this in accord with its prior decision in Thomas and Patterson. We're not only faced with the -- the cleared erroneous rule on this point. We are also faced with the two court rule which I think it's an even stronger barrier to review than the cleared erroneous one. Felix Frankfurter: But what do you do with the suggestion that -- which purpose predominates depends on what direction of vision to give to the trier of fact? John B. Jones, Jr.: Well, I would -- this goes to Mr. Justice Stewart's question. I would like to suggest that determining whose point of view you look -- whose point of view you use to determine the business purpose is not the great hurdle which it would seem. The point was made that the trial judge here looked at it from the employees' point of view and this is considered to be fatal error to our brief. In point of fact, if you read the specific findings you'd see he looks to the company and what he had meant to do as well as the effect on the employee. And I really think that what you have here is an alternative reference. In the last analysis, if you can find a truly sufficient business purpose to the company, it matters not that the employee is happy to go. And I can illustrate that by an example. If the Southland Insurance Company had set up a crackerjack program with two hours of meetings in the morning and three hours every afternoon, meals and places where the employees could get together and exchange their valuable information. Some recreation -- if they agreed the -- planned the program to do the kind of thing they said they wanted to do that would end it even though Mr. Rudolph said he'd go again tomorrow if his expenses were paid. Hugo L. Black: But they're -- Potter Stewart: But ended -- Hugo L. Black: -- rather different. Potter Stewart: -- which way? How was it ended? John B. Jones, Jr.: That would -- if we could show a sufficient business purpose to the company -- Potter Stewart: Yes. John B. Jones, Jr.: -- that they -- they were not motivated by an intent to confer a benefit on their employees but rather to train them in the sense that they would be better. Potter Stewart: Yes, then what? If we could do that then what would follow? John B. Jones, Jr.: If we could do that then we would have found that the employee -- the employer had a sufficient business purpose and either it would not be income to the employee or -- Potter Stewart: Would be income, wouldn't it? John B. Jones, Jr.: If it were income, it would be deductible. Potter Stewart: It would be income to the employees certainly -- John B. Jones, Jr.: The training -- if the employer provides training for an employee. Potter Stewart: Well, just like wages are -- wages are paid only in connection with a specific business purpose of the employee and there's certainly income to the -- of the employer, there's certainly income to the employee? John B. Jones, Jr.: Well, I believe there is a recognized exempt -- Potter Stewart: The business purpose would -- it would follow that there would be income to the employee. John B. Jones, Jr.: Well, I'm not certain. I believe that there's a -- Potter Stewart: And would be deductible, the expenses would be -- deduct -- deducted by the employer. John B. Jones, Jr.: The -- this business of whether it does or does not go through income account is not an easy one to answer. Potter Stewart: No, I was -- John B. Jones, Jr.: I believe that training -- Potter Stewart: I was wondering what you're trying to get at. If you could find a clear business purpose on the part of the employer then what would follow? And I still don't see. John B. Jones, Jr.: The employee would not in the end pay any income tax because of this benefit. Whether -- Potter Stewart: Is it on his wages? John B. Jones, Jr.: This will need to be excluded from his wages or included in his wages and he will be allowed a deduction. When we find a -- Potter Stewart: I don't follow that all. I maybe pretty dense at the moment but I just don't follow it. John B. Jones, Jr.: Well a -- we start from the fact that we're going to take a pure business convention, doesn't have any suggestion of pleasure to be -- Potter Stewart: Well, let's start very simply with wages. These are paid by the employer for a clear business purpose of his own. They're received by the employee. They were -- they're deducted by the employer. They're included in the income of the employee and not deducted by the employee. John B. Jones, Jr.: Correct. Potter Stewart: Now, let's say that a convention is put on by the employer for the employer's clear business purpose. The employer's clear business purpose for training employees -- John B. Jones, Jr.: Well, if I can break in there I'd -- Potter Stewart: I say -- John B. Jones, Jr.: I think I can suggest what -- where I would part from you. The reason why the first payments you've posed were income to the employee was because they were in effect compensation. Potter Stewart: Right. John B. Jones, Jr.: Compensation is specifically included in income. Now, when I find the business purpose as to this new convention that we've posited then I find that that is not intended this compensation, its training for the benefit of the employer and no longer compensation. The reason for including it in the employees' income has disappeared. If we're getting -- Potter Stewart: Certainly often in a training program, you do compensate employees, don't you? John B. Jones, Jr.: But that would be a sour continuation which will be a different point. We would still consider that compensation. Tom C. Clark: Suppose judges invited you give a Law Day address and he says he won't go unless he takes his wife so they pay expenses and the judge and his wife, make the Law Day address, Arizona or California or Missouri or Texas and they -- could that be -- John B. Jones, Jr.: Our answer to that has -- Tom C. Clark: -- income? John B. Jones, Jr.: That -- our answer to that has to be clear unless we can run away from the question that insofar as the wife is concerned, it is income. As to the judge, it is -- it may -- it maybe included in income and then deducted or else excluded from income at the start. But we would -- that that's very much involved in this case, I might as well cover it now that we just have to draw a hard and fast line. We feel on this question of wives because the very reasons which Judge Brown cited in his dissent or both dissents in this case and in the Thomas case that show how good an argument you can make about a wife being a part of the business trip would just create a hopeless task of enforcement. The regulation -- William J. Brennan, Jr.: Well, we're you talking about American institutions of previous case, what about the institution of marriage? You're really going to make things complicated. Felix Frankfurter: You told that wives are a fact of life, I was thinking about -- Speaker: (Inaudible) -- John B. Jones, Jr.: Well the -- there is -- all I can say is that -- William J. Brennan, Jr.: You would give any Law Day addresses. John B. Jones, Jr.: There are personal -- Speaker: (Inaudible) John B. Jones, Jr.: Well there may -- they can reimburse them up to cover the tax. They -- William J. Brennan, Jr.: They what? John B. Jones, Jr.: They can reimburse it up to cover up the tax. Tom C. Clark: Wouldn't there be a tax on that? John B. Jones, Jr.: Yes, but the -- but the form -- contrary to some earlier decisions that (Inaudible) can be resolved to -- Felix Frankfurter: Mr. Jones, I have a -- I have a greater difficulty in some of these charming questions. You indicate the circumstances under which he is living (Inaudible) expenses that you form a program and so on, is that right? If you are advising this company after a decision restraining your present submission, you wouldn't have great difficulty formulating a program that would take care of all the qualifications that you gave us, wouldn't you? John B. Jones, Jr.: Well, I'd (Inaudible) -- it would require some more time, devote of -- some more of agent's times devoted to business. Yes, it would have -- Felix Frankfurter: What I mean you could lay out a program like a (Voice Overlap) -- John B. Jones, Jr.: Yes, but it would be a -- it would be a different -- Felix Frankfurter: Like a law school programs. I can assure you the burden of those law school programs sit very likely on law professionals. John B. Jones, Jr.: Well, perhaps they've incorrectly been allowed some deductions. I -- Felix Frankfurter: I would talk -- John B. Jones, Jr.: You were talk -- you are talking -- Felix Frankfurter: Strike out -- Mr. Stenographer strike out everything I've said that's in the (Voice Overlap) -- John B. Jones, Jr.: Well, you were talking about a different convention than the one we had here. If that change in fact -- I don't mean to imply that this wasn't a close case for the trier of fact but I do think it was a case that has to be left to the trier of fact and that once he has decided that it is not profitable to be reviewed at this level. I subvert -- it is a -- Hugo L. Black: -- (Voice Overlap) -- your test is whether it's predominant for pleasure or predominant for business. I presume in that the man went to Honolulu on a convention and -- balance should be pretty heavy against him, wouldn't it? John B. Jones, Jr.: Well, I don't want to give too easy in answer to that because by and large, the hotels where you can hold a convention are in attractive cities. The unattractive cities don't have hotels that can take 400 people. Just on occasion there are seashore resorts or mountains resorts. And the way -- talking about away is -- if the airline gets more of the money. I mean this just further away. So, you can't make a turn entirely on the resort city. Hugo L. Black: You can't make it turn altogether on pleasure there or of business? John B. Jones, Jr.: No, no, I just don't think the fact that you select a -- Hawaii is -- Hawaii isn't so different from New York City that the result would turn on that alone. The point is that the -- every convention has held in the place that -- pres -- let's say presumably more attractive than home. Speaker: (Inaudible) John B. Jones, Jr.: At least you go to find out. William O. Douglas: If we're -- if we're to take judicial notice, I think I could get you a list of big hotels and unattractive towns. John B. Jones, Jr.: It's been suggested that the Commissioner might publish such a list. I don't know. John M. Harlan II: How does this convention differ from thousands of other conventions, business conventions, is there anything peculiar about this? John B. Jones, Jr.: Well, I would think that -- John M. Harlan II: Even just to program purpose. John B. Jones, Jr.: Well, when -- John M. Harlan II: Or anything else? John B. Jones, Jr.: We think the qualification test here on sales that the agents sell a certain amount of insurance before they'd be entitled to attend is itself in -- indicative of some intent to compensate for those sales. I would suggest that the time here in the program is minimal or -- if -- perhaps I can put it this way, Mr. Justice Harlan. Suppose that they had eliminated the business meeting, the two hour business meeting and Dr. Norman Vincent Peale's address, I don't suppose that the insurance company would claim that then they had a deduction for business expense. Just a trip up and back, isn't -- either just -- it isn't an ordinary expense. It's just isn't the kind of thing we're going to let people deduct. Maybe there weren't ordinary is what we hang it on there. But -- then they add to it a minimal business meeting and an address by not -- Dr. Norman Vincent Peale which is re -- is somewhat related to -- John M. Harlan II: Do you think he would simply use this deduction (Inaudible)? John B. Jones, Jr.: Excuse me? John M. Harlan II: Do you think he would simply use this deduction (Inaudible)? John B. Jones, Jr.: I'm talking about res -- reanalysis. I'm not talking about anybody's intent. But I -- I -- I just don't think that the Court can lay down rules that as long as you have something that looks like a business meeting at a destination city, that's automatically a business trip which entitles people to deduct their expenses. After all we live in a day where travel agencies are now offering professional man so-called "seminar cruises" at which doctors or lawyers or any other profession that has enough to do. They are told come to Bermuda on such and such boat and we'll give you a lecture every morning on some phase of your activity. And then when you get to Bermuda, you have a free time, come on back and have your morning of meeting. This is a very -- that -- he's going there and he is getting training perhaps even his employer will send him. But we have to keep our eyes open to the realities of situation. He is getting a very viable benefit. He is being transported to Bermuda for a vacation that would take a great deal more in taxable income for him to be able to provide that for himself. Speaker: So what's the reality of that situation to Tax Board? John B. Jones, Jr.: The -- there has been issued a warning that this is not an automatic deduction, that in each case, each case will be judged on its own facts to determine whether greedy is related to the business a professional man who purports to be attending a so-called "seminar cruise." And again, I don't -- it is not a pleasant thing to think that the courts of the country are going have to be resolving all this -- my nude factual questions. But I don't believe that you would want to issue a rule that made the seminar cruises either all in or all out. And there will be the -- these borderline situations. Felix Frankfurter: That the new taxable won't anything about it? John B. Jones, Jr.: No, it does not really. Felix Frankfurter: For anything -- John B. Jones, Jr.: The present -- Felix Frankfurter: like luncheon, (Inaudible)? John B. Jones, Jr.: Well, that's not involved in this case. But the -- Felix Frankfurter: Well -- John B. Jones, Jr.: -- it does go into the expense -- Felix Frankfurter: It involves for me whether these business whether -- a second part of the certain aspects of the case, taken you probably know about the Mediterranean Greeks, the Greeks, some are voyages in which they got a regular program of distinguished salads having the people enjoying -- to enjoy a -- rooms in the Mediterranean Greek islands, have all of the Greek islands and have some of the ablest scholars, Greek scholars lecture there. Now, they come to know any number of, not any number but several instructors or professors of Greek history would -- it would surely be a part of that. I don't see why that isn't just as important as buying books (Inaudible). John B. Jones, Jr.: Then that's just the intent of the announcement of which I have spoken that it has to be examined in the individual case. If the professor skips out on all of the meetings, sleeps late in the mornings and just goes ashore in days when they're important, there -- a question does arise whether you've been have a deductible expense. If he gets as much out of the seminar as you impute to him then in that case, the primary purpose becomes one of business. Felix Frankfurter: My answer would be jobs, varied jobs, the idea of that in court, going for each one of these separate things to find out how many lectures he have slept through whether in his bunk or in the chair, leaves to me to ask the courts to do more merits -- Potter Stewart: Mr. Jones, does the record in this case show how the company treated these expenses? John B. Jones, Jr.: Well, life insurance companies are -- Potter Stewart: Well, that's right the tax (Voice Overlap) -- John B. Jones, Jr.: -- (Voice Overlap) of themselves. Potter Stewart: Yes, yes. John B. Jones, Jr.: So that they didn't -- they -- Potter Stewart: That's right. John B. Jones, Jr.: They would not be entitled to deduct but -- Potter Stewart: That's correct. John B. Jones, Jr.: It is important to bear for the generality of cases in mind, the fact that -- it doesn't make any difference to the employer on these expenses. He can deduct it in either event. Either its compensation or training expense and subject to limitations on reasonable amount.He has no problem. So he doesn't have any particular reason to focus in his own mind as to what -- whether this is primarily to confer a benefit on the employee or primarily to advance his interest. Potter Stewart: A deductible as you say in either event by the employer. William J. Brennan, Jr.: Yes. John B. Jones, Jr.: That's deductible in either event. There were no question about that and that's -- Potter Stewart: Including the employer's taxes. John B. Jones, Jr.: But it is not in this case. Potter Stewart: Alright, I remember now. Tom C. Clark: Suppose he pay the tax on employees, on employees' tax? John B. Jones, Jr.: But we haven't yet established that the employee -- Tom C. Clark: Suppose you won -- John B. Jones, Jr.: -- does pay a tax. Tom C. Clark: Suppose you won this case and then the employer decided, "Well, I'l pay the tax." John B. Jones, Jr.: Well, that's -- I'm afraid that that's been long established. That too is taxable income. There is a formative to get you off the merry-go-round but if payment of somebody else's income tax where in you're in a relationship that payments would otherwise be income, the payment of the tax is still income. Tom C. Clark: But that would be a small amount. John B. Jones, Jr.: Well, it gets smaller each time around, depends somewhat on the bracket of the employee. Tom C. Clark: What made me think of that, you've said perhaps the -- on the justices' wives that they could pay the tax of the wives. John B. Jones, Jr.: Yes, they could -- or I suggested that but they -- they have to put in the cover the pyramiding effect. Hugo L. Black: Ex post facto? William J. Brennan, Jr.: How far is Black's joke? Hugo L. Black: Is that ex post facto? John B. Jones, Jr.: There are statutes of limitations that generally live -- limited income tax liability for three years -- William J. Brennan, Jr.: I'm afraid I've never been long enough here (Inaudible). [Laughter] John B. Jones, Jr.: Well, the regulations that reg -- on the wife problem the regulations are very clear. It is a difficult problem of enforcement but if the -- there are revenue system -- do we have a very explicit instruction in Section 262 that personal expenses are not deductible? And it's very hard to take in the usual case. Imagine in the usual case had more personal expenses than that of taking your wife along now there will be some exceptions on occasion. I would just like to close this argument by reminding the Court that the regulations under Section 162 are quite clear explicit on this problem, recognizing that there will be trips that are taken partly for business and partly for pleasure. And they do impose on somebody the task of determining which motive is primary. That was done by the District Court here, was affirmed by the Fifth Circuit. And we suggest that this Court should abide those findings. Hugo L. Black: May I ask you just one other question? Does the evidence showed here that their wives were considered by the company as being a necessary part of the carrying on with the business for the husband? And does it show that the -- they're inquiries about their wives to find out if they had that capacity and if the company's wanted their wives to come with them on this trip were they had these conventions? John B. Jones, Jr.: Yes, I think without coming down hard on each sense I think basically there is evidence in the record suggesting that this company does regard their wives as important. Hugo L. Black: Is there any finding that that's not a fact? John B. Jones, Jr.: There is some testimony in the record and there's some conflict in the brief on this that he didn't -- that Mr. Rudolph didn't feel he had to take his wife. William O. Douglas: Well, doesn't the Federal Government make now a conclusive presumption that half of the money earned by the president is earned by the wife? John B. Jones, Jr.: That would -- you can -- a husband and wife may file a return to get that treatment or in a community property estate, the estate law would have that effect. But absent that, the Federal Government doesn't -- and these people did file a joint return. Potter Stewart: It's an option on the part of the husband and wife. John B. Jones, Jr.: That's right. These people did file a joint return and that doesn't make it any difference whose income we're talking about. Felix Frankfurter: Mr. Jones, would you be good enough to turn to page 100 in the record in the first two sentences, on the top of page a hundred, if -- it's your answer to what Judge Brown there says that this is a question of fact duly submitted to the trier and found by the trier? And that he's making a question of law out of all these questions of fact, is that what you would say to that? John B. Jones, Jr.: I would -- the -- for the benefit of the members of the Court, I take it that -- to take a trip to preserve the security is something not done primarily for personal enjoyment. That's what you're constraining on? Felix Frankfurter: But what is involved is the right of termination under a contract granting the employer the right of termination at will if the thing is at stake. John B. Jones, Jr.: As I've suggested before I think that misstates the question. I think the -- the first question is whether the compulsion which I may -- if I may characterize as such, here described what's really operative. And the record is clear here that that wasn't why he went to New York. He went to New York because he had a good time. He'd do it again tomorrow. Now if we found in a given case that the man didn't want to go to New York and actually went because either expressed or otherwise, he was ensure of his job then this kind of consideration become important. Felix Frankfurter: But Judge Brown's view I take it implies that the surrounding circumstances negative what you've said. You mutilate the complex of fact by saying he went to New York because he had a good time. But Brown says the whole circumstance as the nature of his employment is that if he didn't go to have a good time, he might have no time at all with this company. John B. Jones, Jr.: Well, I think that Judge Brown is looking only to the testimony, if I may say, self-serving testimony of the company that would have this effect on them. And I think the record is clear that that's not all that has to be considered. And again as to him, he would be entitled -- he should give way to the trier of fact on that point. Earl Warren: Very well. Mr. Freling, may I ask you just one question and I know you've got a very little time but suppose that the employer in this case had said, "We want that all of these people who have written a million dollars worth of insurance last year to go to this convention." We're not going to pay their expenses but we order them to go just the same as -- in the la -- same language that they did in this case, would that be deductible? Richard A. Freling: Yes, Mr. Chief Justice, I think it would -- Earl Warren: There'd be no difference between that case and this one? Richard A. Freling: No. Earl Warren: Very well. That's all I have. Richard A. Freling: I'd like to address myself to some specific inquiries from the bench.Mr. Justice Black, Mr. Rudolph testified expressly that when he took a vacation, he like to get away from it all and do as he pleases. This is in direct contrast to the enforced and rigid companionship and schedule at this convention. Second of all, he testified that he would not wish to take this trip again unless his expenses were paid for by the company. He did not consider it a vacation. He considered it a business requirement of his as part of his job. Mr. Justice Harlan, this convention is an outgrow for a product of some 30 or more years of experience in the life insurance industry based upon management studies and experts in the field that say it has legitimate and valuable business purposes. It antedates the era of high taxes. And the suggestions of respondent that this is just one of the category of expense account abuses which we've heard so much about simply isn't the case. We feel that for over 40 years, these company conventions have been going on and yet no question has been raised. This is apparently a test case. And we think that obviously, it was intended to be pleasurable. The company would be exceedingly unwise if it attempted to stimulate and motivate its agents in at atmosphere of rigid tedious requirements. But this doesn't detract from its business purpose. The business purpose is still the -- to gain stimulation in a way that couldn't be accomplished by paying the agents a bonus. It's diametrically contrary to that. The informal activity at the convention was specifically, one is designed as such, is a part of the business of the convention. Why did the company charter special trainings and have people stay and enforced companionship for four days?

William H. Rehnquist: We will hear argument now in Number 85-1563, California versus Brown. Mr. Bloom, you may proceed whenever you are ready. Jay M. Bloom: Thank you, Mr. Chief Justice, and may it please the Court: This is a death penalty case arising out of Riverside County, California, and it involves the giving of an instruction at the penalty phase of that trial. Before getting into the instruction, I would like to lay out a little of the procedure, how the trial occurs in California. The California death penalty process is a two-step process. At the first step the jury determines the guilt or innocence of the defendant and determines the truthfulness of the special circumstances allegation. The special circumstances allegation is used to narrow the category of first degree murderers who may receive the death penalty. Once the jury determines the truthfulness of the special circumstances allegation, the case proceeds to the penalty phase where the jury may return a verdict of death or life without possibility of parole. Now, in this case the evidence of the guilt phase showed that the defendant had raped and murdered a young, 15-year old girl and then called the parents to tell... called the mother to indicate she would never see her daughter alive again. The jury returned a verdict finding defendant guilty of murder in the first degree and rape, and as a special finding found the murder was premeditated. It also found as a special circumstance that the murder had occurred during commission of a rape. At the penalty phase the defendant presented evidence of remorse of a prior rape and evidence of sexual dysfunction and evidence from his family. The prosecution presented evidence of a prior rape. The jury fixed the punishment at death, after hearing three instructions. The first instruction is the one that is at issue before this Court, and basically it says, you must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. Both the people and the defendant have a right to expect that you will conscientiously consider and weigh the evidence and apply the law to the case, and that you will reach a just verdict regardless of what the consequences of such verdict may be. The jury was also instructed that they were to take into account and be guided by various aggravating and mitigating factors contained in instruction known as 8.84.1> ["]. That laid out the various aggravating and mitigating factors and also indicated the jury could consider any other circumstance which extenuated the gravity of the offense, even though not a legal excuse for the crime. The jury was finally instructed with Caljic 8.84.2 which indicated the jury could consider, take into account, and be guided by the applicable factors of aggravation and mitigation upon which it had been instructed. The jury was then told, if the aggravating factors outweighed the mitigating factors, it shall impose the death penalty. However, if the mitigating factors outweighed the aggravating factors, it was to impose a punishment of life without possibility of parole. Sandra Day O'Connor: Mr. Bloom, where in the instructions was the jury told that it should consider mitigating evidence about the background and the character of the defendant? Jay M. Bloom: Well, it is our position, Your Honor, that Caljic 8.481 which deals with the various aggravating, mitigating factors, it discusses the jury is to consider the circumstances of the offense, prior violent conduct, any mental defects of the individual, and under the "K" section, any other circumstance which extenuates the gravity of the offense, even though not a legal excuse. Sandra Day O'Connor: Did it say... was the instruction, "any other circumstance which extenuates the gravity of the crime? " Jay M. Bloom: No. The exact language, Your Honor, was "any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime. " Sandra Day O'Connor: And do you think that that makes it clear to the jury that they could consider evidence going to the background and character of the defendant? Jay M. Bloom: Yes, Your Honor, because in the first place this instruction tracks exactly penal code 190.3 which this Court discussed in California versus Ramos, and in that decision this Court indicated in footnote 19 of the opinion that the instruction allowed the jury to consider all evidence to show a penalty less than death was appropriate and met the standards of Lockett versus Ohio. This Court also noted, citing to 190.3, that the California scheme like the Texas sentencing scheme insures the jury will hear all relevant mitigating evidence. Now, in addition, in Pulley versus Harris which dealt with the 1977 California law, this Court had occasion to also discuss 190.3, which was substantially the same language, and the Court indicated that the statute and the California system was constitutional. So, since the instruction given here tracks exactly 190.3, which in essence has been upheld by this Court in Ramos and Pulley versus Harris, to permit a defendant to present all relevant mitigating evidence, it is our position that the instruction does allow the jury to consider all the relevant evidence. Basically, what the position of the state in this case is, is the instruction telling the jury not to be swayed by mere sentiment, sympathy, conjecture; tells the jury, the best it can, to divorce itself from emotion. What these factors are, are not mitigating factors but are motions of the jurors, as Justice Mosk indicated below in his dissent in the Lamphear decision. And, when followed by Caljic 8.481, the jury then is to consider all the relevant mitigating evidence. This Court indicated in Gardner versus Florida that a motion has no place in decision to impose the death penalty. In addition, the Chief Justice, dissenting recently in Caldwell versus Mississippi, indicated, "There is nothing wrong with urging a capital sentencing jury to disregard a motion and render a decision based on the law and the facts. " He then said, "I do not understand the Court to believe that motions in favor of mercy must play a part in the ultimate decision of a capital sentencing jury. " "Indeed, much of our Eighth Amendment jurisprudence has been concerned with eliminating emotion from sentencing decisions. " It is our position that what these instructions do is, the instruction telling the jury not to be swayed by sentiment, conjecture, sympathy, et cetera, tells the jury, put aside these emotions. They have no place in determining life or death. But what you are to do is to view the facts and the law as given to you in Caljic 8.84.1 and Caljic 8.84.2. In addition, the emotions dealt with here, sympathy, sentiment and conjecture, aren't necessarily beneficial to the defendant as respondent alleges here. Sentiment, sympathy and conjecture could just as likely be engendered for the victim, or just as likely be engendered against the defendant in a death penalty case. Harry A. Blackmun: If the word "sympathy" were out of the instruction, would you be here; the single word, "sympathy"? Jay M. Bloom: Well, I think we would be here because the court below indicated that the instruction as a whole is invalid. It didn't deal just with sympathy. It also dealt with the issue of just verdict and consequences of the verdict. So, all these factors taken together, the Court indicated, were inappropriate for the jury to consider. John Paul Stevens: Mr. Bloom, may I follow up on a question that Justice O'Connor asked you about the adequacy of the instructions to take into consideration the mitigating evidence, and I have in mind particularly the argument of the prosecutor at the Joint Appendix at page 90 and 91 where he refers to the fact that they brought in a parade of relatives who talked about the background of the defendant as a child and then argued that that testimony was a blatant attempt by the defense to inject personal feelings in the case to make the defendant appear human, to make you feel for the defendant and so forth, but that the judge would in effect tell you that you must not be swayed by sympathy. Doesn't that suggest that the judge was in effect directing the jury not to consider that kind of mitigating evidence? Jay M. Bloom: Well, no, Your Honor. What he was telling the jury was to consider the facts and the law. At the opening of his argument, for example, he says, "You are not to consider sympathy, sentiment or any of these factors. " But then he goes on and says, "You are to consider the mitigating factors. " and he goes through them and lists them. That's the opening of the prosecutor's argument. Now, in addition he also notes at one point in his argument that the jurors are not to be swayed by sympathy for the victims. They are to consider the facts and the law of the case. John Paul Stevens: Well, I understand that, but is there an instruction in there that... I don't think... you responded to Justice O'Connor, I believe, by referring to the instruction that says, you should not... you may consider matters that reduce the character of the offense or of the crime, the quality of the crime. But is there anything that suggests to the jury that they may consider the sympathetic aspects of the defendant's personal history? Jay M. Bloom: Well, I think my point was that the instruction as a whole allows the jury to-- John Paul Stevens: It allows them to do it, but does it tell them to do it? Jay M. Bloom: --Well, yes. It tells them that they are to take into account and be guided by the following factors, and then it lists the various factors and some of the factors, for example, are the age of the defendant, whether at the time of the offense he had the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, whether he acted under duress or under substantial domination of another person, whether the offense was committed under a circumstance which the defendant reasonably believed-- John Paul Stevens: But none of those mentioned his background, his personal background? Jay M. Bloom: --Well, the last one does, any other circumstance which extenuates the gravity of the crime. John Paul Stevens: The gravity of the crime. Jay M. Bloom: Even though it is not a legal excuse. Now, the California Supreme Court in the Easley case did indicate that it felt that instruction dealt only with the offense and not the offender. However, this Court as I indicated in the Ramos decision, indicated in footnote 19 that 190.3 of the penal code, which this instruction is a verbatim statement of that, does comport with Lockett and Eddings and allows the jury to consider all relevant mitigating evidence. So, my point is in essence that this Court has already upheld the validity of this instruction by upholding 190.3 because they are the exact same language. Sandra Day O'Connor: But in doing that, did we have before us an argument or... like the prosecutor made here, or the other statements that were made to the jury? Maybe that catchall instruction is a little bit ambiguous, but what happens when it's coupled with the argument that was made to the jury? Jay M. Bloom: I think there are two answers to that. First of all, I think as I understand the issue before the Court, it is the facial validity of the instruction. Now, there may be cases where a prosecutor may go beyond bounds. We're not saying this is the case, but the issue is whether the four corners of the instruction comport with the Eighth Amendment. Antonin Scalia: Why is that, now? That the prosecutor's instructions... the prosecutor's argument, you say, are not before us and cannot be considered? Jay M. Bloom: Well, I'm saying that I don't understand that to be the issue before the Court. I understand the issue to be the facial validity of the instruction itself. That was what cert was granted on. Now, of course a prosecutor may make arguments in some cases that go beyond the limits of this instruction. In addition, in this case the prosecutor's arguments were consistent with that instruction. Antonin Scalia: Well, do you think so? I mean, in addition to the other things that have been read, he said, there is mitigation. Absence of criminal activity, no mitigation, right? Absence of prior felony conviction, no mitigation; whether or not the victim was a participant, no mitigation. All that's true. But then he says, no mitigation, no mitigation, no mitigation. Age of the defendant, no mitigation. Whether or not the defendant was accomplished, no mitigation. Other circumstances, no mitigation. Now, is it really possible to say that there was no mitigation in everything that had been brought forward, other circumstances, no mitigation? Jay M. Bloom: But in California the jury is instructed that the arguments of the prosecutor are not the law. The jury... the prosecutor presents his case. He's saying, the defense evidence does not constitute substantial mitigation to determine a punishment less than death. The defense then gets up and says, we've put on all this evidence of mitigation. It's an argument between both sides as to whether the evidence is substantial mitigation or not. It does not mean that the jury is precluded from considering it. It's just the argument of the prosecutor. He's not saying, you cannot consider this evidence. He's saying, divorce yourself... first of all, he is saying, divorce yourself from the emotions and look at the facts and the law. And then he says, when you look at the facts and the law, there is no mitigation here. Antonin Scalia: Well, I think a jury could reasonably understand that polemic language that way if the instruction were clear enough. But when the instruction says, "any other circumstance which extenuates the gravity of the crime. " the gravity of the crime, you know, you could read that to mean, it has to be a circumstance connected with the crime, not with the defendant's prior life. Jay M. Bloom: Well, I think you have to view that in the context, though, of the other provisions of the instruction where they talk about the individual. If "A" through "J" for example had been limited to just dealing with the offense itself, it's possible the jury would believe that. But all the other provisions deal with the offender as well as the offense, as I indicated, age, mental defect, duress, things like that; so there is no reason to suddenly conclude that when you get to the "K" provision, that that's only limited to the offense. And again, I think that-- Sandra Day O'Connor: Did the defendant's counsel object to the prosecutor's argument on this point? Jay M. Bloom: --I don't think he did, Your Honor. I'm not quite sure, in all candor. But again, I think that the issue as I understand it is what the validity of this instruction is, and not if the prosecutor may have misstated-- John Paul Stevens: But, Mr. Bloom, on that point the state court's opinion first states the instruction and then it goes on to say, "The prosecutor made similar arguments both during the voir dire of the jurors and the close of the penalty case. " "Defendant contends that these admonishments. " --that is, covering both the instruction and the prosecutor's argument, and then it goes on and says, "defendant is correct". So, it seems to me the ruling of the court that we are reviewing is one that relied on both the argument and the instruction. Jay M. Bloom: --Well, but the question that was certified... we filed a petition for cert, and as I understand the question that was certified was question one of our petition which was, whether an instruction at the penalty phase on these issues violates the Eighth Amendment where the defendant has been permitted unlimited opportunity to present mitigating evidence, and the instruction merely advised the tryer of fact not to consider matters not relevant to the offense or the offender. Antonin Scalia: Well, if we adhere to that and we agree that the instructions alone would not be bad but combined with the argument would be bad, what would we do? Would we reverse and remand to the state? This is a capital case. It seems to me we want it to come out right, don't we? Jay M. Bloom: Well, I think what happens, though, is the Supreme Court of California viewed the prosecutor's arguments in the context of what we would construe its misunderstanding of the validity of the instructions. The Court historically, as all the briefs have indicated, has found that giving of a sympathy instruction violates the federal Constitution and previous deferment indicated that it violated the state Constitution, and it viewed the prosecutor's arguments in that context. Now, if this Court were to adopt our position and conclude that the giving of this instruction is not improper in that it just tells the jury to put aside its emotions and view the facts and law of the case, if the Supreme Court of California would look at the prosecutor's arguments in that light it might reach a fully different conclusion. Antonin Scalia: So, you would say, then, we would remand for separate consideration of the instruction... of the argument if we have a problem with that? Jay M. Bloom: I would think that that would be an appropriate way to do it because again, I think the Supreme Court of California has what I believe is a misunderstanding of what the concepts in this instruction mean versus concepts of mitigation. These are emotions, which as I have indicated the law of this Court is, really has no place in the equation of determining life or death. Antonin Scalia: Of course, part of the problem is, it's not just the instruction in this case. I'm not sure of the appropriateness of it, but in one of the briefs there was a listing of instructions in other cases which present the same problem. Jay M. Bloom: That's true, in Louisiana-- Antonin Scalia: I don't mean instructions. I mean, arguments by the prosecutor. Jay M. Bloom: --Well, again those arguments, we don't know... those arguments are not this case, obviously, and there may be error in those other cases. But again, those cases are not before this Court, nor do I understand it is the validity of the prosecutor's arguments. And even if-- Antonin Scalia: Except it's a little hard to hear the state come before us and tell us, listen, all this excludes is emotion. It doesn't mean that you can't take into account all these other factors, but then to read the argument that the State has made to the jury in a number of cases which seems to say the opposite. Jay M. Bloom: --Well, but again-- Antonin Scalia: I'm sure it's not your fault, but it has to be the State's fault. Jay M. Bloom: --Well, again those cases are not this case, and our position would be that if you are going to reach the merits of the arguments to the prosecutor, that they are consistent with what we are saying here because at one point in his argument he tells the jury, don't consider sympathy for the victims any more than you would consider sympathy or any of these emotions for the defendant. And at the beginning of his argument he talks about the fact that, don't be swayed by these emotions. You must consider the law. And then he goes through the 8.84.1 and lays them out one by one for the jury. And of course, he makes his argument that they are not to... there's no mitigation as to these factors but as to others. Our point, essentially, here, is that in California versus Ramos this Court indicated that within reason each state has a right to determine what factors should weigh in the life or death equation. And again, in Skipper versus South Carolina, Justice Powell in his concurring opinion noted the same thing, that within certain reasonable standards a state has a right to determine what these factors should be. It is our position that when a jury is allowed to consider all relevant mitigating evidence, as it is in this case, there is nothing inappropriate about telling jurors to try and circumscribe their discretion as much as possible and put aside these normal, human emotions and give both sides a fair hearing and determine the case on the law and the facts. Again, the final line of the instruction is, "You will reach a just verdict. " So, it tells them to view the facts and the law and render a fair verdict on that rather than on emotions. Thurgood Marshall: Mr. Bloom, do you say the State has a right to do this? Well, the State Supreme Court did this. Jay M. Bloom: Well, but again-- Thurgood Marshall: And you're objecting to that. Jay M. Bloom: --We're objecting but-- Thurgood Marshall: When you are talking about the State, what are you talking about? Jay M. Bloom: --Well, we're talking about the people of the State of California. Similarly, in Ramos the California Supreme Court indicated that giving the Governor's commutation instruction was inappropriate, but we petitioned for certiorari and the issue was whether the people of the state have a right to have this considered as a factor in the death penalty equation. And it is our position that-- Thurgood Marshall: The Court said that you cannot tell a jury that you can't have any sympathy for the defendant. Jay M. Bloom: --Well, it didn't say sympathy for the defendant. It said, sympathy for anybody. Thurgood Marshall: Well, that's what the State Court said. Jay M. Bloom: Well-- Thurgood Marshall: And you said the State didn't say that? Jay M. Bloom: --Well, first of all as I indicated, what we are saying is, as we said in California versus Ramos, the State or the people have a right to have certain factors considered in the death penalty equation. It's... each state has a right to determine what the qualities the jury should consider are. Now, California, this instruction has existed for many years and it has been decided that the jury should be told to put aside their emotions for anybody. We all understand that people when they are making a life or death determination are going to be emotional. You can't help but be emotional. What we're saying here is that it's not unreasonable to ask these jurors, to the best of their ability, to put aside these emotions and look at the facts and the law and consider any factor that's relevant mitigating evidence. For example, if the defendant wanted to put on evidence that as a child he was dropped on his head and his parents beat him up, that's fine. The jury may consider that as mitigating evidence and it may evoke some emotions. But, what we're saying is that they should not decide the case on emotions alone but view the evidence and determine in the equation whether under "K" or under any other provision, the aggravating factors are outweighed by the mitigating. Thurgood Marshall: Alone. Jay M. Bloom: Well, it says, "You must not swayed by mere sentiment-- " Thurgood Marshall: I said the word "alone". I don't see the word "alone". Jay M. Bloom: --I'm sorry, I don't understand. Thurgood Marshall: You said it said "alone". I'm saying the statute doesn't say "alone". Jay M. Bloom: I'm sorry. I don't think I said that, but I may have misspoke myself. But in conclusion, then, I think that what we're saying here is that it is reasonable in accord with the Ramos decision to allow the State to tell a jury to put aside its emotions and decide a case fairly on the facts and the law, as this instruction does do, and under 8.84.1, "The jury may consider all relevant mitigating evidence relating to the offense and the offender. " For these reasons, the giving of the instruction here was constitutional, and the decision of the California Supreme Court should be reversed. At this time I would like to reserve five minutes for rebuttal. William H. Rehnquist: Thank you, Mr. Bloom. We'll hear now from you, Ms. Knox. Monica Knox: Thank you, Mr. Chief Justice, and may it please the Court: In 1976 in Gregg versus Georgia this Court noted that the admission of relevant mitigating evidence under fair procedural rules is not alone sufficient to guarantee that the information will be properly used in the determination of punishment, especially if the sentencing is performed by a jury. Respondent here was allowed to put on all of his mitigating evidence. The problem was that he was denied the proper use of that evidence by the prosecutor's argument and the Court's instructions. I think it is worthwhile to spend a minute or two on some of the facts. I have no quarrel with what Mr. Bloom has said about the facts. I would just like to add a few comments. Respondent put on a substantial amount of mitigating evidence at the penalty phase of his trial. He put on several family members who testified that he was a quiet, loving youngster and young man, that he had been devastated at a very early age by the divorce of his parents and the separation from his father, and that he cared very much for his family members, keeping up relationships with them even while he was in prison. In addition, respondent presented the testimony of a psychiatrist who indicated that respondent had severe psychosexual problems, that they were based primarily on a grossly distorted sexual upbringing by his mother. Byron R. White: Was there any objection to that evidence by anybody? Monica Knox: No. All of this evidence came in without objection. Byron R. White: And the judge certainly didn't say, what's the purpose of all this? Monica Knox: No, he didn't. The psychiatrist further indicated that respondent was not a sociopath, that he was regularly employed. He valued education. He kept close relationships with family and friends, that his behavior was sexually and not violently motivated, and that he presented no danger in an all-male prison population. Respondent testified on his own behalf. He echoed the pleas of his family members and asked the jury to show him mercy. At the end of all this evidence the judge instructed the jury in the instructions that Mr. Bloom has indicated to this Court. The prosecutor exploited these instructions in his argument by emphasizing the duty of the jury to follow the law as the Court would give it to them. He argued that all the factors that the Court would list for them to consider were aggravating factors, that no mitigating evidence had been presented on any of them. He repeatedly warned the jurors against personal emotions of sympathy, compassion or mercy. Sandra Day O'Connor: Ms. Knox, if in this case the judge had not given the instruction, the catchall instruction about relevant mitigating evidence as to the crime but had made it clear in that instruction that the jury could consider evidence going to the background and character of the defendant, but nevertheless had given the sympathy instruction that the State petitioned on, would you be making this same argument? Does that sympathy instruction alone necessitate a reversal, in your view, or is it the problem of the companion instructions? Monica Knox: Respondent's position is that the anti-sympathy instruction alone is unconstitutional in all circumstances. But I really believe that the issue before this Court can be and is much narrower than that. That is, this is really a straightforward Lockett case. Respondent put on a lot of mitigating evidence and yet nothing in the instructions that were given to the jury adequately told them that they could consider that mitigation. In fact, the instructions really told them that they couldn't consider that mitigation. That was the argument of the prosecutor, and if the prosecutor understood and interpreted that instruction that way, it certainly is likely that at least one if not more of the jurors understood the instruction in that way. Antonin Scalia: Oh, I don't know that that's so. You know, the adversary system does tend to produce extravagant statements on both sides, doesn't it? Monica Knox: It certainly does. Antonin Scalia: So, that isn't necessarily true, it seems to me. What have we accepted cert on? Do you agree with the statement of the State that the only point that we've taken this case for is the sympathy instruction? Monica Knox: No. I believe that this Court has taken this case to review the decision of the California Supreme Court. That decision was that the anti-sympathy instruction, together with the other restrictive penalty instructions, did not allow the jury to properly consider respondent's mitigating evidence. And I believe that that is the decision that is on review in this Court, and that that's the issue that this Court is considering. Byron R. White: What was the order granting certiorari? Monica Knox: What the order said was restricted to the first question presented in the petition for cert.-- Byron R. White: Which was? Monica Knox: --Which was, whether the giving of an anti-sympathy instruction was unconstitutional. Antonin Scalia: Now, you're making your case weaker than it is. It was whether the giving of that instruction was all right where the defendant has been permitted unlimited opportunity to present mitigating evidence, and the instruction merely advised the tryer of fact not to consider matters not relevant to the offense or the offender. It was introducing some matters beyond the mere instruction, the opportunity to introduce evidence, at least. It doesn't mention, however, the argument of the prosecutor, does it? Monica Knox: No, it doesn't, and I don't believe that respondent's argument hinges on the argument of the prosecutor. I think the argument of the prosecutor is relevant because it indicates the type of interpretation that people schooled in the law give to these instructions. Sandra Day O'Connor: Was any objection made to the prosecutor's argument at trial? Monica Knox: No, there was not an objection made to the prosecutor's argument. But this really is an instructional case, as I said. I don't believe the argument hinges on the prosecutor's argument. William H. Rehnquist: Ms. Knox, let me go back just a minute to your own view of the proper construction of the question presented which we granted certiorari on. It talks about the sympathy instruction. It says, "Where the defendant has been permitted an unlimited opportunity to present mitigating evidence. " Now, you don't have any complaint, do you, here that the trial court excluded mitigating evidence that should have come in? Monica Knox: No. I think that brings up the issue of California versus Ramos, which the State seems to be relying on very heavily. In a footnote in that opinion, this Court did say that the California penal code, Section 190.3, was consistent with Lockett principles. What penal code Section 190.3 says before it gets to the list of factors that the jury is to be instructed on is that the defendant should be able to present evidence on any matter relevant to mitigation including evidence of his character, background, history, mental condition and physical condition. That is quite consistent with Lockett. The problem is the very problem that existed in Eddings. Eddings was allowed to introduce all his evidence without limitation. The problem was that the sentencer didn't consider the evidence. That is the very problem that exists in this case. Respondent clearly was allowed, without objection, to present all of his mitigating evidence. The problem comes with instructions to the jury. The jury was not told that they were to consider that mitigating evidence. And so we're left-- Antonin Scalia: Ms. Knox, how do you get that? If I read it together with the argument, I'm... you know, I'm on your side. But apart from the argument, why would you read the instruction that way? The last part of it is... the residual clause is, "Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime. " Now, the argument you make in your brief is that the jury would think that that has to be something that relates narrowly to the actual commission of the crime itself. But, as was pointed out by the state in its argument, a jury wouldn't reasonably understand it that way since before Subsection K a lot of the other subsections specifically mention factors that have nothing to do narrowly with the commission of the crime, such as whether there was any prior felony conviction, whether... how old was he, and so forth. It seems to me, in that context it would be unreasonable to read "K" alone and again, leaving aside the prosecutor's argument, it would be unreasonable to read that to say there has to be something about the narrow circumstances of the crime as opposed to the defendant's prior history. Monica Knox: --I think there are two answer to that. One has to do with... this instruction was not given by itself. It was given with an antisympathy instruction which I'll get to in a minute. But more important than that, it seems to me that when you say there are other factors that don't go to the narrowness of the crime, there are two factors in this whole list that don't go to that crime. One is the age of the defendant and the other is his prior criminal activity. All the rest of those factors listed have to do with what the defendant was like at the time of the crime. Was he acting under physical impairment? Was he acting under the duress of another? But, it all has to do with what he was like at the time of the crime. When you get to factor "K", the very wording of the instruction restricts it to a consideration of what happened at the time of the crime. It says, "any other circumstance which extenuates the gravity of the crime, even though it is not a legal excuse for the crime. " It talks just like all the other factors do about what defendant was like at the time of the crime. And I think that's the problem. If you look at the opinion of the California Supreme Court in People versus Easley, they said that was the problem. And now, since 1983 and since the opinion in Easley, what courts are instructing juries about penalty is... there's another sentence that is added to factor "K" which says, "Or any other evidence the defendant offers as a basis for a sentence less than death. " That tells the jury, it's that language that tells the jury that evidence that isn't connected directly to the crime-- Antonin Scalia: Where is that new language? Monica Knox: --It's now in the standard Caljic instruction. It was developed by the California Supreme Court in People versus Easley. Antonin Scalia: Of course, even when that's given you would still come in and object if the anti-sympathy instruction were given, I presume? Monica Knox: Yes. And the reason for that is, because of what the jury is supposed to be doing at the penalty phase, that it's clear from decisions of this Court that what the jury does in the penalty phase is not a rigid and mechanical parsing of statutory factors; that it's a highly discretionary decision, it calls for a highly subjective opinion by the jurors; that it calls not just for their legal and factual judgment about the evidence they heard but it calls for their moral assessment and their moral judgment of that evidence too. I think that to classify sympathy-- Antonin Scalia: To the use of the word "emotion" too, that they shouldn't put aside their emotions? Monica Knox: --Well, I think the-- Antonin Scalia: I mean, is that the next case after we disapprove sympathy... excluding sympathy, would we be asked to disapprove the exclusion of emotion? Monica Knox: --No, I don't think that's the next case, because I think that... well, I think if the judge were to instruct the jury to disregard emotion and not say anything further, yes, that would be wrong. There are clearly some types of emotion such as prejudice, for example, which are not supposed to play a part in the jury's determination, whether at guilt or at a penalty trial. But it's also clear that there are many emotions which validly play a part in the jury's determination at penalty, for example, retribution. Retribution is the primary justification for a death sentence. Retribution is clearly an emotion, and yet it plays a proper part in the jury's determination at penalty. In Gregg versus Georgia, this Court said that the instinct for retribution is part of the nature of man. The same thing is true with sympathy. Sympathy is a natural reaction on the part of jurors to the type of mitigating evidence that respondent presented in this case. William H. Rehnquist: But, counsel, the language in the instruction here was qualified by the word "mere", "mere sympathy". I have read that with perhaps not full regard for the ejusdem generis rule which you suggest all jurors know, as meaning that you don't want to just go off on sympathy alone or emotion alone. Now, if that were a correct reading of that instruction, do you still think it's objectionable? Monica Knox: Well, first of all, I don't believe it is a correct reading of the instruction because-- William H. Rehnquist: If it were, do you think it would be objectionable? Monica Knox: --Yes, I think it's objectionable because it's very unclear what that means. I mean, the state makes... in its pleading has made much of the idea that this is mere sympathy, that what that means is that it's untethered sympathy. Well, it's not entirely clear to me what untethered sympathy means. If it means sympathy that's not based on evidence but sympathy that just comes out of the sky, then it seems to me we have dealt with the exclusion of that by the Witherspoon Whip process. We have gotten rid of those people who are just going to bring in some type of emotion because they're against the death penalty, for example; that once you've gotten past that stage and you're at the penalty stage and they've heard all this evidence, it seems to me that if they have a feeling of sympathy and they have a sympathetic response to the evidence and they want to exercise mercy for the defendant, that is clearly constitutionally valid and to tell them "mere sympathy", what the "mere" does is imply that there's something wrong with sympathy. It doesn't tell them there are different types of sympathy, some of which apparent and some of which are not. William H. Rehnquist: You know, if we were a commission or a committee of the California Bar sitting down to compose jury instructions, maybe we wouldn't come up with this one. But to win your case, it seems to me you've got to show that this instruction is not just a little bit off the mark but that it's actually unconstitutional, that it doesn't come within the latitude that Pulley and Ramos said there are for states within the capital system. Monica Knox: And I think we can do that. It seems to me that the jury... when you tell the jury that they can't consider sympathy, that because we believe that juries pay attention to jury instructions and they follow them, the jury is going to try to make some sense of what that means in the context of the decision that they're supposed to be making. Antonin Scalia: But you think we would approve an instruction that says to the jury, you may consider your feelings of retribution in deciding what penalty to impose; you may consider your thirst for retribution? I gather that from your earlier comments. Monica Knox: I don't think you need an instruction for that because I think that just naturally happens. Antonin Scalia: Oh, I know, but let's assume California says, let's do it, and they have an instruction like that. Do you think we'd approve that? Monica Knox: Well, I think that the comments this Court has made in cases such as Gregg versus Georgia indicate that you would, yes. Antonin Scalia: Well, the state in setting up a criminal system can have retribution as one of the purposes of its penal system. But we said that the jury can be instructed that... what about sympathy for the victim? Would we approve an instruction that said, you may consider your feelings of sympathy including sympathy for the 15-year old girl who was raped and murdered? Monica Knox: Yes. Antonin Scalia: You would? Well, you're consistent, I'll say that. Monica Knox: I think that without telling the jury that, though, that that in fact does happen, that that... in part, that's my point, that these are all very natural reactions. Antonin Scalia: It's an imperfect world, and it may well be that the jury doesn't always follow instructions. But what the State is trying to do is saying, you know, as much as you can, put aside emotion. Put aside sympathy. You're right, they may not do it 100 percent. Monica Knox: Let's say the jury makes their best attempt to do that. Then what good has respondent's mitigating evidence done him? I mean, he might as well have not introduced it. If the jury cannot use their sympathetic response to that evidence and decide whether to exercise mercy for respondent, or for a capital defendant, then the defendant might as well not put on the mitigating evidence. It's the only use their mitigating evidence has, and if you tell the jury that they can't use it that way, essentially what you're doing is telling the jury not to pay any attention to the mitigation at all. Antonin Scalia: But the use under the California instructions is that you put the aggravating factors on one side and the mitigating factors on the other side, and prescinding from emotion or sympathy, the California courts say, you decide which outweighs the other, making believe you are an emotionless judge. That's what they're telling... it may be hard to do, but is there anything wrong with asking them to try to do that? Monica Knox: Yes, because to say that you put the aggravating evidence on one side and the mitigating evidence on the other side makes it sound like what you're doing is something that is very mechanical, that all you do is, you know, see how many are over here and see how many are over there, and whatever side has the most number wins. Well, as Chief Justice Rehnquist said in Barclay versus Florida, that is not what a capital sentencing proceeding is about. It is not a mechanical parsing out of statutory aggravating and mitigating factors. Byron R. White: --some evidence that may suggest to the jury that there is a reason for forgiving the defendant for what he did, is that forbidden by this instruction? Monica Knox: Yes, I think it is forbidden by this instruction. I think that the sense that a jury would make of this instruction is that any feelings of leniency they have for the defendant are totally unacceptable feelings, and that they cannot act on them; that if they want to exercise mercy towards the defendant because of the mitigating evidence they've heard about his background, that they cannot do it. Byron R. White: Let's take age. Why does the state permit that as a mitigating factor, and how would it mitigate if the jury... I take it you think this instruction forbade the jury to take into consideration age? Monica Knox: No, I don't think it did, but one of the factors specifically given to the jury as something they could consider, the age of the defendant. Byron R. White: Well, I know, I know, but... well, I take it that... wouldn't the age just provoke sympathy? Or, what would it do? Would it help... would it say, we ought to forgive him for this, or that, it's easy to understand how he might have committed this crime? What is it? Monica Knox: Well, I think the factor of age can work in several different ways. It can work as aggravating, for example, and in many, many cases in California it's argued that way. I believe that it can work as mitigating in a case, if you have a very young defendant, for example, I believe it could be mitigating to the jury. Byron R. White: Well, and any mental disturbances or anything like that? Monica Knox: Well, I think that you have to look at the instruction carefully, though. What it says is, any mental disturbance at the time of the crime. It does not indicate that a prior or subsequent mental disturbance is at all relevant to the jury determination. But, see, if you believe... let's say that there was a mental disturbance at the time of the crime, and that's one of the things that the jury is specifically told on their list of factors to consider. If you believe that they will consider that as mitigation, I think that you're quite right, Justice White, that the way they consider it as mitigation is if they have a sympathetic response to that evidence. The problem is when you give-- Byron R. White: Here's the evidence, that this fellow's been a good man all his life. His relatives and his friends say, we think he's great and this is just a temporary lapse, and trying to convince the jury that this man will be all right in the long run, we just shouldn't execute him, shouldn't kill him. Now, is that sympathy? Monica Knox: --I believe that there is a sympathetic component in that analysis. Byron R. White: Well, do you think this instruction forbade the jury from taking that into consideration, saying, well, he just doesn't deserve the death penalty, he's probably never going to do this again, this was one of those crimes of passion that will never happen again? Monica Knox: Yes, I believe that's exactly what the instruction does. First of all, the standard instruction listing the factors doesn't tell them they can even consider that type of evidence. But assuming that they were given a more expansive standard instruction telling them that they could consider that type of evidence, then I think what happens when you then add on top of that an anti-sympathy instruction is that, what you have done is you have give them conflicting jury instructions. On the one hand, you've told them to consider it and to consider it there is a sympathetic component in the consideration, and on the other hand you have told them they can't weigh that sympathetic component. And so, I think at the very least what you have done is hopelessly confuse the jury. Byron R. White: You don't think the word "mere"... isn't the word "mere" in the instruction? Monica Knox: There is a word "mere" in the instruction. Byron R. White: You don't think that helps any either? Monica Knox: No. In fact, if anything I think that probably confuses the issue much more. I mean, what the instruction says is not to be influenced by mere sentiment, conjecture, sympathy, et cetera. Now, if the "mere" modified "sympathy" as is being suggested, it modifies every term in the instruction. And therefore it would modify, for example, "prejudice". Well, then what it means is, you are telling the jury is not to be influenced by mere prejudice, suggesting that prejudice is okay as long as it rises above the level of "mere". Well, it seems to me that type of analysis-- William H. Rehnquist: There are an awful lot of jury instructions that have never been challenged by any responsible defense lawyer which, if you treated them as if you're parsing provisions of the Internal Revenue Code, you could adduce some doubt about which adjective modified which. That isn't the way we ordinarily go about parsing jury instructions, is it? Monica Knox: --Perhaps it's not, Your Honor, but I think that we have... we're dealing with a decision between a defendant's life and death, and we should be very careful what we tell jurors. Maybe we have to be more careful about what we tell jurors. William H. Rehnquist: But we also, if there are 170 cases in California that depend on whether or not this instruction is unconstitutional, we should also be very careful not just to get into a very arcane word game. Monica Knox: And I'm not advocating that we should. I would like to correct an assumption which I think Your Honor has, and that is that there are 170 cases that rely on this. This instruction has been against California law for many, many years. This is only the third case that the California Supreme Court has considered where this instruction was given at the penalty phase. It is not routinely given, and there are nowhere near 170 cases, or even 17 cases in California where this instruction was given. William H. Rehnquist: But didn't one of the dissenting judges make some comment to that effect? Justice Lucas, was he wrong when he said there were 170 cases? Monica Knox: Justice Lucas was not referring to the anti-sympathy instruction, Your Honor. There is a second part of the Brown decision which is not before this Court, and that has to do with the separate penalty instruction which was give, which told the jury that if they found aggravating outweighed mitigating that they shall impose the death penalty. It is that instruction that is routinely given to penalty juries, and that is what Justice Lucas was talking about when he said that there were a lot of cases which that instruction was given in. Sandra Day O'Connor: Is this instruction, though, one that is quite common nationwide? I recall, certainly in the State of Arizona, it was part of the standard instructions in that state for years, and I had rather assumed that it was given all over the country. Monica Knox: No. There are, I think, about seven states which fairly routinely give anti-sympathy instructions at penalty. Byron R. White: Death penalty statutes that have produced a lot of people on death rows? What states are they? Monica Knox: I don't know. I know Illinois, for example, is one of them. Byron R. White: Well, how about Florida? Monica Knox: No. Interestingly, Florida is one of the states which does not allow an anti-sympathy instruction. Byron R. White: Texas? Monica Knox: I'm not sure about Texas, Your Honor. Byron R. White: Georgia? Monica Knox: No. I think Georgia doesn't allow it, because I did speak to the head of the ACLU there. Byron R. White: Alabama? Monica Knox: I don't know about Alabama. Byron R. White: Louisiana? Monica Knox: I'm sorry, I don't know. Antonin Scalia: The trouble is, you don't know which way the sympathy is going to break, for the victim or the offender, and that's part of the problem. The... whole thrust of our jurisprudence in this field has been to try to eliminate the irrationality of capital punishment, to try to prevent one person getting condemned to death in a flukey way where somebody else didn't, and sympathy is simply not tied to reason. What you sympathize with, I may not sympathize with. Monica Knox: Maybe so, but the whole penalty decision cannot be a totally rational, objective decision. It is a very subjective, discretionary decision by its nature. We cannot make it totally rational. It's true that-- Antonin Scalia: We have been trying. Monica Knox: --Well, but to try with an anti-sympathy instruction is essentially to tilt the scale towards death for a defendant. Yes, it is possible that if you allow the jury to consider sympathy, that some jurors will have sympathy for the victim. I think that happens whether you allow the jury to consider sympathy or not. But in the end, it's all the capital defendants have going for them at the penalty trial. They get to the penalty stage of the capital proceeding because they have been convicted of a very serious crime that is essentially an unmitigated crime, that as Justice Groden in the Brown opinion noted, that the issue is not really between good and bad, is this defendant a good man or is he a bad man, do we give him death or life based on that. The fact of the matter is that we are dealing with very serious offenders who generally have very serious criminal backgrounds, that the only thing that they have going for them in terms of getting the jury to opt for a decision of life is a sympathetic response to their evidence in the hope that they will exercise mercy. Respondent literally staked his life on the hope that the jury would do that in this case, that they would listen to his evidence, that they would consider it, that they would have a sympathetic response to it, and that they would exercise mercy for him. And yet, the instructions given in the case which were clearly aggravated by the prosecutor's argument... but the instructions given told the jury that they could not do that. Respondent might as well have sat mute at the penalty phase for all the good putting on all his evidence did. Antonin Scalia: I forgot what you answered before. You would allow the exclusion of emotion, you would allow... say, don't be swayed by emotion? Can you give that instruction? Monica Knox: As long as it's clear to the jury that factors such as sympathy, compassion and mercy can be considered. And the reason I say that I would allow for the exclusion of emotion is because there are some emotions such as prejudice, for example, which clearly should not play a part in the jury's determination. Antonin Scalia: Well, if you just said emotion, it would probably eliminate compassion, wouldn't it? Monica Knox: I don't think that we can constitutionally eliminate compassion. It's the very basis for a decision such as findings, that if you eliminate compassion, if you eliminate the types of things that we're talking about, defendants at a penalty trial have absolutely no chance at all of getting a life verdict out of their jury. Antonin Scalia: We are just trying to figure out how many standard instructions... and how many states eliminate emotion. I mean, you know, I would certainly put that in an instruction all the time. And, you think that would be bad because it's too broad? Monica Knox: Yes. I think that one of the things that is rather telling about this instruction is that the instruction was developed for the guilt phase of the trial. In fact, the use note in the standard Caljic, the book of jury instructions in California, specifically tells judges not to give it at a penalty trial. It was developed for a guilt trial because the issue there is much more of an objective issue. It is a stage-- William H. Rehnquist: Your time has expired, Ms. Knox. Thank you. Mr. Bloom, do you have anything more? You have seven minutes remaining. Jay M. Bloom: Yes, Your Honor. Thank you. May it please the Court: With regard to the issue of sympathy, I think it must be considered that at the penalty phase when this instruction is being given, the defendant has already presumably been convicted of murder in the first degree, and a special circumstance of some sort has been found. So, under these circumstances to believe necessarily that sympathy would be helpful to a defendant, I think is wrong. I think that if anything, as indicated in the briefs, sympathy is likely to be engendered the other way against the defendant in favor of the victim. So, for this reason it seems eminently reasonable and fair to everybody involved to tell the jury, put aside these gut reactions the best you can; decide the case on the facts and the law. Now, with regard to the prosecutor's argument, I wanted to invite the Court's attention if I could to page 6524 of the reporter's transcript, and this is the opening of his argument. He says, "Remember, during the voir dire I told you that the Court would not leave you adrift to your own feelings to decide which of the two punishments should be imposed. " "The Court would provide you with guidelines, instructions to make these decisions, and indeed this will happen. " "The Court will instruct you in determining the penalty to be imposed. " "You shall consider all the evidence which has been received during any part of the trial. " "You shall consider, take into account and be guided by the following factors. " He then goes through the various "A" through "K" factors. So, even though he starts out saying, I want you to put aside your emotions as I told you, he then says, go ahead and view the evidence, which is precisely what he's supposed to be doing. In addition, I think the instruction must be viewed as a whole. I think that respondent's brief narrowed the Court too much onto the issue of sympathy. The other words are crucial here: "You must not be swayed by mere sentiment, conjecture, sympathy, but you will conscientiously consider and weigh the evidence and apply the law of the case, and that you will reach a just verdict. " In other words, the best you can, put everything aside with regard to emotion, carefully weigh the facts and the law, and render a just and fair verdict. We believe that the State of California, consistently with the Ramos decision and the Eighth Amendment, may ask the jury to render a just verdict based on the facts and the law, and for that reason the judgment of the California Supreme Court should be reversed. William H. Rehnquist: Thank you, Mr. Bloom. The case is submitted.

Warren E. Burger: We will hear arguments next in 1529 Henderson against Morgan. Joel Lewittes: Mr. Chief Justice and may it please the Court. This case involves the granting of a federal writ of habeas corpus to the State Prisoners by the United States District Court from the Northern District to New York. Wherein, the District Court vacated a 1965 plea of guilty solely on the ground that the relater, that is the responded here, was not informally advised of each legal element of the crime to which he pleaded, where the plea was otherwise unassailable and where the responded admitted the act charged. The second Circuit Court of Appeals unanimously affirmed to that opinion, the granting of the writ. Turning to the facts for a moment, the crime was committed on the night of April 6, 1965, where upon Mrs. Ada Francisco, a widower, who owned the farm where the respondent was working, was brutally murdered in her home in Fulton County which is an up state rural community in New York State by an assailant who stabbed her more than 40 times. The respondent Morgan was convicted of that murder which occurred while he was working on the victim’s farm. Mr. Morgan at that time was 18 years old and the record varies as to his intelligent “From a range of 40 to 75”. It is noteworthy as we will refer to later on that at the time of sentence there was psychiatric report on the basis of the psychiatric examination of the Utica State Hospital that the defendant, the respondent in this case, was competent to stay in trial, was able to understand the nature of the charges, and would able to assist in the defense. The underlying altercation which resulted in the commission of the crime here, was no doubt the fact that the respondent originally was a resident of the Rome State Hospital which a division of the New York State Mental Hygiene Department for Young Defectives, Mental Defectives. Apparently -- Potter Stewart: He was there as a patient? Joel Lewittes: He was there as patient, Your Honor. That is correct. And apparently his record was good enough so that he was released out to various farms and particularly in this case to the farm of the decedent where he worked. And apparently his will, there was a rule on the part of the Rome State Hospital that those that were released would have to be home by 10 o’clock at night, each night, and the respondent violated those rules and Mrs. Francisco, the decedent, told the respondent that he must not to do that again. He must not violate the rules but yet he did, and she said, “Well, I am going to have to tell the people of Rome State Hospital.” And the respondent fearing no doubt that he would be returned to the State Hospital sat according to the record bruited about it, and decided that he was going to leave. He went up to Mrs. Francisco’s room with a hunting knife in his hand. It was not a pocket knife as the record reveals; it is was a hunting knife 5 inches long, went into the room, awakened her. The decedent screamed and thereupon the respondent stabbed her approximately 44 times. He ran away with a small some of money, fled in the decedent’s car, drove about a hundred miles away was involved in a head on collusion with another car, and was taken into the hospital whereupon he was arrested based upon the description of the respondent that they were looking for him. They did find the hunting knife in the car and confessions were made, the record shows. He was arraigned about nine days afterwards to the crime of murder in the first degree at which time the Judge at the arraignment proceeding assigned to him two counsel, two lawyers. The indictment, murder one, was read to him in open court. He was advised that he was entitled to a Jury Trial and have the right to subpoena witnesses, on his behalf to produce any evidence, necessary for the defense. The Attorney’s at the time of the arraignment requested that the respondent be examined psychiatrically. This was granted by the Court. The Attorney’s also informed the Court that they would moved at that time to obtained copies of various statements made by the respondent to the police into the District Attorney’s office. That was on April of 1965, on June 8, 1965 respondent in fact pleaded guilty to murder on the second-degree upon the recommendation of the District Attorney and the request of the respondent. Defense counsel was present at that time, those were members of the family. The Trial Court was quite aware of the limited intelligence of the respondent and the record shows, the plea minutes too demonstrate, the solitude taken by the Trial Judge. William H. Rehnquist: Mr. Lewittes, does the New York make what I think of as a customary distinction between the first-degree murder and the second-degree murder that first degree would require a predisposition as well as intent, while at second-degree intent would be sufficient without predisposition or premeditation? Joel Lewittes: That is correct. That is way statute read in 1965. It has subsequently had been changed Your Honor, but at that time, murder in the first degree required premeditation and deliberation with intent, a murder in a second just required an intent to affect the design to kill. The respondent at the time of plea, admitted he had consulted with his attorney and that he knew that he was going to go on the prison, and seven days later, the sentence was imposed and ended termed 25 years to life. The actual minimum amount under the statute for murder in the second degree at that time was 20 years to life. There was a plea for leniency on the part of the defense and before passing sentence, the Court did note as it is required and was required of that time in New York State that prior to sentence, the Trial Judge must have before he may present his report in a social history report, and he did have the report of the psychiatrist. It is noteworthy as well that at the time of sentence there was no surprised or disappointment either by defense counsel or by the respondent when the sentence was pronounced. Well, all was quite for five years, and five years after the conviction, Coram Nobis application was commenced by this respondent, and for the first time, he now alleged this his plea was involuntary because he was unaware of the consequences of the plea, and he was unaware that intent was an element of murder in the second-degree. Supreme Court in Fulton County denied the writ without a hearing. It determined that indeed it was voluntary that he did have counsel that he had spoken to counsel about it, and it was voluntarily and knowingly made. The State Coram Nobis denial was affirmed unanimously without opinion by the Appellate Division of the Supreme Court in New York State and leave to appeal was denied by the New York Court of Appeals on July 6, 1972. Then following the procedure that is quite familiar in my office, the State inmate then proceeded by way of federal writ of habeas corpus, it was time in the District Court, in northern District of New York. And he raised the same issues that he raised in the State Coram Nobis proceeding, they had failed to ascertain, the Trial Court failed test ascertain the factual basis for the plea and that he was not told with the elements of the crime to which he pleaded where the consequences of it. The District Court denied the federal writ of habeas corpus not unlike the decision in Coram Nobis that actually tracked the decision of the State Coram Nobis within State Court termination, and District Court held that the plea was indeed voluntary. A certificate of probable cause was granted by the Second Circuit Court of Appeals and they reversed or remanded on they say without any request for opposition by the State to put in opposition papers on the certificate of a probable cause -- William H. Rehnquist: It was not orally argued. Joel Lewittes: It was not Potter Stewart: If you know about the tendency of the application for Certificate of Probable Cause, did your office know? Joel Lewittes: We did not know at that time. Potter Stewart: Although, this was -- Joel Lewittes: That is correct. Potter Stewart: Does a statute or rule require notice, I wonder? Joel Lewittes: I do not believe that it does. I may say this is in all candor, however, that when the certificate of probable cause is granted, we did move for rehearing of that which is denied. The Second Circuit reversal and remand was for an evidentiary hearing to be held in the District Court to determine whether or not the allegation is raise of the federal writ of habeas corpus application. William J. Brennan, Jr.: (Inaudible), is there any practice at all relating the notice that you are familiar with? Joel Lewittes: I can say Justice Brennan that there is no hard and fast rule. I usually find my experience is that where the relater is defended by counsel as opposed to pro se, when he is defended by counsel, we do get notice of it. But usually in the pro se applications it is determined in the first instance by the pro se clerk, and then so the judges and we do not -- Speaker: In the District Court or in the Court of Appeals? Joel Lewittes: In the Second Circuit of the Court of Appeals, and very often we do not get any notice of it until the denial or the commission so proceed. Warren E. Burger: Any procedure comparable to an order to show cause directed to your office, why release should not be granted? Joel Lewittes: Not when it comes to certificate of probable cause in most cases. William H. Rehnquist: Does the Court of Appeals on a significant number of occasions grant a certificate of probable cause but not decide the case, set it down for oral argument after granting it? Joel Lewittes: No, they usually remand it. William H. Rehnquist: So if they grant a certificate -- Joel Lewittes: Oh I am sorry, I am sorry. They do grant a certificate of probable cause and then, we are -- counsels then usually assigned if there is no counsel at that time and then the appeal proceeds normally. William H. Rehnquist: So, this would be the extraordinary procedure, the one followed here. Joel Lewittes: That is correct. Lewis F. Powell, Jr.: Can I ask a question? In your brief and in your petition, as I understand it, you take the position that the Court of Appeals of Second Circuit adopted per se rule. Joel Lewittes: We do. Lewis F. Powell, Jr.: You do. And yet if I am reading the District Court’s opinion correctly, on Page 6A of your petition for a writ, bottom of Page 6A, the Judge under caption entitled the law cites Black in the first sentence and then says, “the standard to be applied to the plea of guilty herein is whether under all of the circumstances, the petitioner made a reason choice voluntarily after proper advise and with a full understanding of the consequences”. Do you find any fault with that statement of standard? Joel Lewittes: I find no disagreement with the statements at all. My disagreement is with the application thereafter, in spite of that statement -- Lewis F. Powell, Jr.: Right. Joel Lewittes: -- the District Court when on and did formulate the per se rule. Lewis F. Powell, Jr.: Yes. The District Court may have decided the facts incorrectly but Court said and stated the rule correctly as you just conceded, so they would be no precedent against you, would it? Joel Lewittes: Well, I am afraid that I am not in agreement. On Page 8A of the Appendix, and this is to the petitions, the Court cites the statement McCarthy and then says, based on upon the foregoing, I hold this is a matter of law, that petitioner plead guilty was not intelligently and knowingly entered. So, it seems to me that in spite of the general statement at the beginning of the decision, it is clear indeed and it is seem also in light of the fact in the remand order by the Second Circuit Court of Appeals that the holding was indeed that this was a per se rule that but for that it would have been voluntary. Byron R. White: Are you suggesting that the Court has held anytime you fail do advise a person of an element of the crime that it automatically means that the plea not voluntary. Joel Lewittes: That is our understanding of the case. Potter Stewart: If the word that fact have been substituted for the word law in the passage that you read us, you wouldn’t be so sure that was a per se rule, would you? Joel Lewittes: Well, I might be, because if read that I hold is a matter of fact that the petitioner’s plead guilty was not intelligently or knowingly entered and was therefore involuntary. I still would fear that mere fact, rather than the use of the word law, still could render a guilty plea involuntary. Potter Stewart: It would, at least in your admission, have been an erroneous factual determination in this case. But if the District Court’s opinion contained as my Brother Powell, pointed out it did contain a statement of a proper general principles to be applied. This would then be a single erroneous case in your submission. Joel Lewittes: Yes. Potter Stewart: I mean, I am not assuming it was erroneous but you say it was. Joel Lewittes: There was this evidentiary hearing on the basis of the remand where the relater, the respondent here, did testified the, two defense counsel testified the District Attorney testified, and although technically not made part of the Rule 52A, conclusions of law and findings of fact. The Court did note that indeed there was a factual basis for the plea, but did hold as mentioned moment ago that a mere fact in essence that the element was not of the crime, was not told to this respondent, the plea was involuntarily as a matter of law. The District Court -- William H. Rehnquist: You read that District Court’s opinions, the Court of Appeals’ opinion was reading out any possibility of harmless error in a situation like this, I would think where the defendant had stabbed the victim 40 times. Whether he knew as a matter of law that intent had to be proved or not, might be fairly in material since I would think that Jury confronted with that evidence would virtually inevitably conclude that there was intent. Joel Lewittes: I have assumed, they read out a harmless error here. Speaker: You read this is in fact a holding that the omission to mention any element means a guilty plea must be vacated. Joel Lewittes: Yes, that is the way we read this decision and that is the evil of this decision we feel. Now, that the decision itself from the District Court is quite odd, it seems to me, particularly when they commence their discussion of the law citing Boykin against Alabama, and they claim it is not applicable to the instant case because Boykin is not retroactive. And yet, they rely upon the McCarthy case which was held not to be retroactive, and the Halliday decision in this Court, and yet they have based their reliance upon the McCarthy against the United States which was, of course, decided under the supervisory powers of this Court. So that it is a strange decision even on that basis. William H. Rehnquist: Do think there is some possibility that Judge Port (ph) may not have been internally persuaded by the Court of Appeals. Joel Lewittes: No, I think the opposite was truly -- Justice Rehnquist, I think that he was very much influenced by the Second Circuit. Speaker: There were very (Inaudible). Joel Lewittes: In my Judgment, that is correct. Warren E. Burger: You are relying on the McCarthy case. Joel Lewittes: I think if we look at Page 8A of the Appendix to the petition for writ of certiorari. Warren E. Burger: Give me your view of it? Joel Lewittes: It says there that citing McCarthy can not be truly voluntary unless the defendant possess and understanding of the law relation of the facts. Warren E. Burger: New York State County has, in the way of a counterpart, Rule 11 of the Federal -- Joel Lewittes: We do not. Warren E. Burger: What is inherent the applying Rule 11 as a judicially constructed -- Joel Lewittes: Very much serves, and I believe that the fear that Justice Harlan related in Boykin case in his dissent that Rule 11 was -- excuse me. Byron R. White: I think you would be making the same arguments this was post Boykin case. Joel Lewittes: Yes. Byron R. White: I gather -- Joel Lewittes: The Court -- Byron R. White: Judge the District Court said that this is a pre Boykin case and to be Judge by pre Boykin standards. Joel Lewittes: Yes, I would make this argument even if it were post Boykin because I think that we can not isolate one single element and say, and fashion a per se rule, and I think the court decisions in Brady and McMann against Richardson, and in the output case tell us that we have to look at all the relevant circumstances. Byron R. White: So you would not say that it is never a violation of the Boykin Rule to put on the record reasonable -- and make a reasonable showing on the record that if plea is intelligent and voluntary to -- you would not say it is never a violation that rule to fail to informing of an element of the crime. Joel Lewittes: No. Byron R. White: When is it? Joel Lewittes: I think that it is a violation of the Boykin Rule when there is no factual basis for the plea in conjunction with not understanding the nature of the plea plus the fact that it must be intelligently and knowingly made. So what I am saying in essence is that it must be a voluntary statement, it must be consensual. Byron R. White: I think of that but how about not knowing an element of the crime that is your pleading guilty too? Joel Lewittes: I do not think if we set it that way we have a problem, because it we can not communicate to the defendant in essence the element of the crime without formally using the statutory phrase. Byron R. White: If that is the Boykin Rule before, I gather to think it would be true. You do not -- I guess you think the rule is the same after than as before Boykin. Joel Lewittes: That is correct! Byron R. White: So it does not make any difference whether Boykin is retroactive? Joel Lewittes: No, it does not, except that I think -- except that I think many of cases that have followed Boykin assumed, some of the cases assumed that they are constitutional requirements, although that flow out of Boykin through McCarthy. Byron R. White: I wonder if Boykin made though -- was it the requirement of having on the record? Joel Lewittes: Yes, there was no record at all on the Boykin case. Byron R. White: Now, suppose you believe after Boykin or before or suppose you agree that it is been shown that the defendant was actually ignorant of one of the elements of the crime to which she was pleading guilty. Joel Lewittes: I do not think that in itself would change my view, because if the motivation behind the plea was, for example, that he -- and there are several reasons why one pleads guilty, but one maybe that he still felt that he wants a shorter sentence and sentences are very important motivation or perhaps the most important motivation. I think that even if he did not understand the element but he understood that he would get a lower sentence and there would be less penalty imposed and he pleaded because of that, I do not believe the guilty plea would be infirm. Warren E. Burger: The maximum, but he could not get under New York Law, life. Joel Lewittes: He could have had a mandatory sentence of life on a murder one conviction at that time. Potter Stewart: That was a plea of guilty to second degree murder. Joel Lewittes: That is correct. Potter Stewart: That was a maximum sentence that could have been imposed to him. Joel Lewittes: A maximum was life but the minimum was 20 years. He received 25 here to life. Speaker: What if the State argued in the Court of Appeals that the error, and then it was harmless beyond the reasonable doubt. Joel Lewittes: I do not believe they do. Warren E. Burger: What do you suggest now or at least I got an inference that was 44 stab wounds the intent element is really not an element in the case, that any trier, in fact, could reasonably assume that if you stab somebody 44 times you intended it. Joel Lewittes: I believe it as well, Mr. Chief Justice that that was the assessment of his counsel, but that would be the problem if he had to go trial but no Jury would believe that there was no intent here. Warren E. Burger: Is the impact to this holding now that all the State Courts and the Second Circuit are bound by Rule 11? Joel Lewittes: It would be appear to be and more -- yes, it would and I am disturbed by that for many reasons, because I think that the Rule 11 goes some extent to the tools to be used by a judge. These are tools in ascertaining voluntariness. They do not necessarily go to voluntariness itself. But this case of all cases we believe, it is a perfect example not to have any per se rule. This was the case where the man was very happy to get away of what he did sentence wise. He entered the room with a knife and the multiple stab wounds, and to omit a per se rule here would not only to substantial harm as far as criminal administration is concerned. But I should like to tell the Court and I am sure we are all aware that there hardly a guilty plea entered or has been entered, where the legal elements would necessarily toll to the defendant. So I can imagine the plethora of federal writ of habeas corpus that will succeed after this. Speaker: But if he prevails, then what do we do with this case? Joel Lewittes: I think we -- Speaker: We tell them the standards of your right. We read it as you have suggested it should be read. We say “No” there is no per se rule; it’s totally or circumstances. Joel Lewittes: And this is one of the circumstances. Speaker: Well, then what do we do send it back and let them apply the Rule as we tell him. Joel Lewittes: I think that we -- I think you could reverse, just plain reverse. Speaker: If we say it is totally rule then we have to apply the rule, said it? Joel Lewittes: Yes. Speaker: Do we usually do that? Joel Lewittes: Yes, I think you do. In the case where there was evidentiary hearing and the, I think yes. Warren E. Burger: Now that have passed on this event. Joel Lewittes: Yes. Warren E. Burger: Pretty good record made. Joel Lewittes: That ends and the fact that they relater waited five years before he suddenly discover this. Warren E. Burger: He was satisfied -- he was satisfied for a while with his sentence but not after a while. Joel Lewittes: That is correct. Warren E. Burger: Mr. Joseph E. Lynch. Joseph E. Lynch: Mr. Chief Justice, may it please the Court. Sitting on the Court room the portion of the last two days I have instruct by what it seems to me to be a significant difference between this law suit and the cases I have heard and I suppose when it the cases it come here. In those cases, the party’s are in disagreement about what the law is. There is no such disagreement here. We all recognize that under our system of Justice are probably under any unlike system of Justice or a plea of guilt to a crime to be valid and must be intelligent act. It must be done by a person who realizes his significance in quite consequences of that act. Both parties also agree that when the question is whether a particular plea meets that standard that the Judge charge with the determinate question was looking all of the circumstances that surround the plea. Warren E. Burger: You mean that that (Inaudible) circumstances rule? Joseph E. Lynch: I do, your Honor. Warren E. Burger: Do you think the Second Circuit did? Joseph E. Lynch: Yes. Warren E. Burger: In this case? Joseph E. Lynch: In this case, very definitely Your Honor, if I may explain. Warren E. Burger: How do you explain the Court relying on Rule 11 in the McCarthy case? Joseph E. Lynch: No, I do not think that this case stands for proposition as counsel has suggested that this means that every -- Warren E. Burger: McCarthy decided in the opinion, it is not? Joseph E. Lynch: The opinion says that the plea must be voluntary. What I am saying Your Honor is this, vis-a-vis Kercheval and Machibroda, the plea must be voluntary, that in deciding whether it is voluntary the Court can and must look at the circumstances it is surrounded, and I say that that is what they did here. Warren E. Burger: The crucial elements of those of the totality of circumstances starting I suppose with the fact that he had counsel or you would concede that was -- Joseph E. Lynch: That would be pertinent very definitely Your Honor. I think -- Warren E. Burger: But you have to inquire whether this was experience Counsel? Joseph E. Lynch: Yes. Warren E. Burger: Do you think its passes those two tests here? Joseph E. Lynch: Yes, I have no quarrel with the conduct of the defense counsel here. They did certainly as good a job as I could have done and well that may not be a very adequate standard. It compels me to say that they did a good job. I think the other circumstances that are included here and that were before the Court and which I say that the Court must have taken into consideration was the age of the accused, the fact that prior to this particular problem he had had no serious crushes with the law and, therefore, was not presumably familiar as harden criminals are familiar with the judicial process, and of course, very importantly the diminished intellectual quotient of the accused. William H. Rehnquist: Mr. Lynch, Judge Port originally found that it had been a voluntary and intelligent plea, and then the Second Circuit reversed. Joseph E. Lynch: That is correct, Your Honor. William H. Rehnquist: And at Page 10 that very short opinion of the Second Circuit or at Page 10A of your petition. All they say the case is remanded to the District Court to conduct an evidentiary hearing on the issues raised by the petitioner including whether at the time of his entry of his guilty plea, he was aware that intent was essential element of the crime. Now, does that not suggest that the Second Circuit thought that fact might have been dispositive? Joseph E. Lynch: It certainly suggests that the Second Circuit thought it was important, but that does not mean I believe that in deciding this case Judge Port looked only at that issue. You see, I think where the parties part company here and where the disagreement arises is that petitioners says to this Court that there was only one factor that decided the outcome of this case, namely the effect that this young man did not known that intent was an element of the crime. And let me say, so I do not forget it parenthetically, I would agree with you that there is all kinds of intent in this case. If this went to a Jury, a Jury clearly could have found to intent in the number of wounds. William H. Rehnquist: But then let me interruption you and then go ahead and answer as much. Judge Port originally found that to be voluntary and advised, it goes up to the Second Circuit. The second Circuit says take it back and consider whether he knew intent was an essential element of the crime and whether was advised to the scope there punishment. It goes back to Judge Port.. Judge Port says he was advised to the scope of the punishment. He did not know that intent was an element of a crime and Judge Port releases him. Now, to Judge Port, that was dispositive what the Second Circuit said about to intent. Joseph E. Lynch: I respectfully disagree, Your Honor, because in Judge Port’s original decision there had been no evidentiary hearing. After the Second Circuit decision, there was an evidentiary hearing. For the first time the Judge saw this young man; he heard testimony not only from this young man but from the other people, and it is this type of thing that creates the additional circumstances which I contend he took in the consideration. William H. Rehnquist: He does not say he did though. Joseph E. Lynch: Oh no! That is true. Well, he does not say that he does -- he did acceptance so far as he says I am going to apply the totally of circumstance rule. When he talks about the law that he is going to apply, he says that he is going to use the very standard that the petitioners says, he should use. You see what the petitioner says here as I understand his argument and I am reading his brief. Everything he says is premised in one simple conclusion and that conclusion is that since the opinion talks about nothing except intent of necessity, it must be only intent that dictated the decision. Now, I think that is logically wrong and unpersuasive when the Court says “I am not going just consider this on the element of intent but I am going to look at all of the surroundings circumstances”. I think it is also significant when those circumstances are as important and as significant as they are here and, of course, I am thinking about the intellectual level of this young man particular. Really that premise that if it is not cited, it is not considered, I suppose has a corollary that it is says that if you are writing decisions, you must put in the decision what you consider to be significant, because if you do not it will be assumed that you have not considered it. And that -- well, I think the premises are illogical, I think that corollary is potentially catastrophic, and I would assume it makes the writing of opinions even more chancy than I suppose they are without that corollary. Byron R. White: What you can say that is just the other side of the -- but requiring on guilty plea -- you are supposed to put on the record if the elements that go to guilty plea. Joseph E. Lynch: Under the Federal rules as I understand them that is correct. Byron R. White: It is under Boykin too. Joseph E. Lynch: Yes. Byron R. White: Under Boykin, and so may we assume that the Judge put up record the elements that he relied on in overturning the guilty plea? He was supposed to? Joseph E. Lynch: Yes, I think you may assumed that I would like to have you also assume what I think is a valid assumption that when a Judge says I am going to take into consideration all of the circumstances that is what he does. Now, there is no question that he wrote solely in terms of intent. Warren E. Burger: First time or the second time. Joseph E. Lynch: The second intent. Speaker: Were those all of the circumstances as far as he was concerned? Joseph E. Lynch: Well, you see I find difficulty accepting that Your Honor, because -- well, stop and think a second, isn’t in any adversary proceeding isn’t one of the most significant things that takes place throughout the preceding, is it not the presence of the witnesses, the appearance, the impression they create, their integrity, their ability to honestly recall and relate. That is present in every preceding, and it was present here, and it is seems to me that to say that this stands for the proposition that the decision rest only on the element of intent overlooks the facts that this Judge saw these witnesses, came to the conclusion as to what their are testimony was and to what the facts were and fact that he entered in the decision that he rendered here. Warren E. Burger: He did that twice; he did that twice. First time he came up black and the next time he came up white. Joseph E. Lynch: No, if I may disagree, Mr. Chief Justice. The first time there was no hearing. All he had in front of him on the first occasion were papers. On the second -- Warren E. Burger: I think it probably showed that this man stabbed the victim 44 times -- Joseph E. Lynch: True. Warren E. Burger: -- a pretty important the element of intent is it not? You have already conceded. Joseph E. Lynch: I conceded, and the issue Mr. Chief Justice, it is vital, if it went to a Jury for determination. There is no question they could have found intent here. Warren E. Burger: I hold in the appraisal of a defendant and his lawyers as to how he should plea? Joseph E. Lynch: Yes, but that is not the issue here. As I understand the issue here, it is not whether he had they intent but it is whether he knew that the State had to prove he had the intent. He says that he did not -- and I think that that is a very different proposition. Warren E. Burger: Well, if you concede that without the any doubt as you apparently have that the State could make a case of intent. Joseph E. Lynch: No question. Warren E. Burger: Then, how is the degree of his understanding of this, a layman’s understanding of this, assuming of perfectly average intelligent person not a subnormal as he is, what would that have to do with it? Joseph E. Lynch: Does that not really go to the very question we are trying to resolve whether the plea is voluntary and intelligent. In other words, how can a person make an intelligent decision as to what he should do under these circumstances, if he does not know that one of the problems that the people face here is that they must prove that he had intent? Now, I am not suggesting -- Warren E. Burger: For realistic matter such a person, a layman, on that kind of an issue, depend almost entirely on his counsel. Joseph E. Lynch: Yes, but you see here Your Honor, the counsel quite candidly admitted that -- and I do not denigrate them for this; one counsel said that he had not told this to the -- not told the accused that intent was an element of this matter, and the other counsel said that he thought of what he could not be sure and accused himself testified that he had never been told. William H. Rehnquist: But is that not one of the things that counsel would just pretty well write off in assessing the defense of this kind of a case when you stabbed 44 times, you do not dwell with any great length in your client on how we are going to disprove the element of intent? Joseph E. Lynch: I agree with that. I would not dwell on it, particularly, whereas here my client had very limited ability to understand. But that does not mean that I -- well, I might not dwell on it. I think I have to tell it to him. So that there maybe some inconsistency in saying that an accused who is at some place between an idiot and a moron, must be told the -- I must saying he has to be told the elements of crime; I think he has to be told the substance of the crime, and I think, that was not told to him here, and I think that that is one of the circumstances that resolved in this decision. William H. Rehnquist: And yet he was found capable of standing trial; that decision was never challenge. Joseph E. Lynch: Well, that is true and we are not saying in this preceding that he was not capable of understanding. In fact, the irony of this -- John Paul Stevens: Mr. Lynch, could I ask -- you say that he has to be told the substance of the crime -- Joseph E. Lynch: Yes. John Paul Stevens: Suppose this lawyer tells them that if the Jury finds A - that you are mentally competent, and B - that you stabbed this lady 44 times, they will find you guilty, would that not be substantially true? Joseph E. Lynch: I do not think it would be technically true, but I think it would be practically sufficient because I -- John Paul Stevens: Suppose as you admit that all you have to tell them is the substance of the crime. It seems to me you have to confessed error? Joseph E. Lynch: But you see that they did not tell them that Your Honor. John Paul Stevens: Oh, Yes. The only thing that the Judge found was, he was not aware of this concept to intent which may mean that he thought, well I did really mean to kill her, but that would not be a defense. Joseph E. Lynch: Well, you see that is what I am really saying. Perhaps my answer to your original question was they will conceive what the -- what I am saying here is it is my understanding of the law that the plea must be an intelligent plea. Now, they will obviously assume that the person making that plea has some knowledge. I mean that, Mr. Morgan were from another planet and you know came down and was charged and had no knowledge of our society or our rules whatsoever. I think that that we would have to impart some knowledge to him. Now the question turns, what kind of knowledge must you impart for the plea to be an intelligent act? And what I suggest is that what you must tell in accused for his plea to be an intelligent act is the substance -- the essential substance of the crime of with which he is charged. Now I do not wish to get into -- John Paul Stevens: It is between that and telling him the specific legal elements of the crime. Joseph E. Lynch: Well, let me explain. There are number of cases as I am sure Your Honors aware where pleas have been set aside because the accused did not understand the nature what he was doing. Now, these have tended to fall and may exclusively fall under the conspiracy area. The Courts have said in those matters, because the accused did not know what he was doing; he did not know in effect what a conspiracy was, we are not going to accept his plea and we are going to send it back for re-pleading. I take those cases to mean that for an accused to plead intelligently in accordance with the constitutional requirements of due process, he must know the essential substance of the crime. The essential substance of conspiracy, I take it, is that two or more people get together to commit a crime. The essential -- Warren E. Burger: The effects would be more subtle than whether 44 stab wounds afford a basis for an inference of intent. Joseph E. Lynch: Well, it maybe more subtle, in fact the petitioner has suggested that the conspiracy cases that have set aside plea should be considered -- he does not phrase it this way, but I gather a short of an aberration in this system that those are complex cases, and therefore, it can be understood only in that light. I prefer to think of them as I think that they are, not an aberration but an actual practical example of the principle of the rule which says that he accused must know. Now, a conspiracy case complex as it may or it may not be. The plea to such a charge may not necessarily have to be set aside because the accused is not told. In fact, as I recall, I think it is the, I want to say Podell case, the Podell case. There the case went through partly to trial. The accused was an Attorney, pleaded guilty and then moved to separate plea aside and a grounds he did not -- not that he did not understand but to be was not told the element of conspiracy and the Court had no problems that will -- this is as sophisticated and intelligent man and he does not need -- Warren E. Burger: The same analogy, the Court might have reached that conclusion very properly, if this young fellow had been pleading guilty to conspiracy given all the other facts. But when his pleading becomes something very much less subtle than conspiracy, doesn’t the explanation –isn’t the explanation to be tailored to the nature of the crime? Joseph E. Lynch: I think it is to be tailored to the nature of the accused, because I think that a sophisticated accused may need no explanation. Certainly the attorney example that I have just mentioned, he requires no explanation. The unsophisticated or the mentally deficient, I think need a lot more. If the standard is a complexity of the crime, does not that necessarily pre suppose that you make a list of the crimes in terms in order complexity, and that seems to me like an unworkerable judicial rule. I think -- John Paul Stevens: Your suggestion about the intelligence of the accused may not cut the other way. Is it not possible that the more ignorant the man the more important that is that they have the advise of Counsel on which to rely. Joseph E. Lynch: I would accept that. John Paul Stevens: And here you do have two trained counsels who in effect made the decision for him. So Is it not reasonable to assume and made it in intelligent decision. Joseph E. Lynch: Let me say quite candidly that they made the decision, I am sure that I would assume suggest if you made. There’s no way through there. But the issue really is not what they did what was right or wrong, but whether this was an intelligent plea. Now, there are problems both ways, I mean, do you have a young man of very limited intellectual ability and I suppose it can be said well with such a person is not really unwise to say you must tell him in great detail what the substance of the crime is. On the other hand, this has been pointed out, he has been found able to stay in trial. He is able to understand apparently enough to go to trial and it is seems to me that the due process provisions of our constitution say that under those circumstances, it his plea is to be an intelligent one, it has to be made on a basis of some knowledge. He is not just a chip in a whirlwind of legal knowledge here. He has to make an intelligent decision of his own and he has to -- Speaker: What is the (Inaudible) did you stab a lady 44 times? Joseph E. Lynch: I think that he should have gone on and if he had answer such question— Speaker: Well, I do not think somebody asking when they ask him when he said yes. Joseph E. Lynch: I would not consider that giving him information he need it Byron R. White: (Inaudible). Joseph E. Lynch: That is correct. Speaker: (Inaudible) Joseph E. Lynch: Because the—when I talk of substance of the crime you Honor. I am talking about the element without which the crime would not be the same. Now, when you are talking about murder second, the very thing that is distinguishes it from the lesser degrees of homicide is the intent to cause the death. Speaker: You think Mr. Lynch the Lawyers, the two of them, should have said to him: “Now, look young fellow second-degree is the plea that they are asking you to -- let me tell you what that is all about that involves intent, it involves this, it involves that, it involves the other one. Now on this case, 44 stab wounds are enough to establish intent. The jury could find the intent on the basis of that. Now there you are, that is all the thing, how do you want to plea of them. You can get from 20 years to life.” Is that what they should have done? Joseph E. Lynch: I think that that is the least they should have done yet. Speaker: I suppose in Judge Port’s initial findings, it suggested that is exactly what they said to him? Joseph E. Lynch: No. You see, I would hope that Court not go off on the original decision. The original decision was decided and papers submitted solely -- Speaker: Well, I agree Mr. Lynch, but what Judge Port did in his initial opinion, layout the things that he found had been done at the plea hearing by every one concerned the lawyers, the accused, and the Judge. There are the couple of paragraphs. Joseph E. Lynch: In so far is that was contained in the Court records. Speaker: I miss the word intent I agree, but he talks about what the lawyers did, he lays down of, as I read that on the taking of the plea, the court made a special effort to emphasize the defend the gravity and importance to this change of plea. The Court asked the defendant while he understood that he was accused to killing the victim. Did the plea of guilty was the same as being convicted after Jury Trial and it would be sentenced to prison. Defendant answered in affirmative to each of these questions. Joseph E. Lynch: That is correct Your Honor. Speaker: Then they ask him in addition if he fully understood what he was doing and if he was doing this voluntarily and upon the advise of counsel. The defendant again responded in the affirmative where other defendants mother and two brothers were present with him in the Court room and he change this plea to guilty. As of that is separate list to what Judge Port found on the basis only the papers had occurred at the taking of the plea. Joseph E. Lynch: That is correct Your Honor. The reason at decision was different on second occasion in my Judgment. Its ironically enough the presence of the defense counsel testifying on behalf of the people of the State of New York. I think, it is very possible that if those Counsel would not have not been present and if the Court had not have enough opportunity see the witnesses, it would come into different—different results. The -- Speaker: So even, if there are some suggestions what I have just read to you that the usual intent had been discus between Counsels that the after hearing the lawyers the Judge concluded now he was wrong --. Joseph E. Lynch: I think, that after hearing not only the lawyers but of course the accused himself, the Court had a complete picture of what -- not only what went on, that was in the records originally. But he could better understand the intellectual deficiency of the accused and could recognize as I think he did recognized based upon at deficiency, that he accused did not know that intent was an element. And it is, you know, it is very well for us to say that he should have known, I mean that intent was so obvious, and it is obvious here but this young man testified at the evidentiary hearing that he not intent to kill this one. Now, you know, let me find it -- Speaker: Then it is quite possible to read that testimony that was confusing intent and pre-meditation, is not? He testified as he went up the stairs he did have to intent to kill her. Joseph E. Lynch: That is possible -- there is one possible explanation of the testimony Your Honor, that is true. I think, it is also possible to interpret that testimony to mean, that he actually believe he did not intent. William H. Rehnquist: What that does it mean? He did not intent not only at the first stab wound but at the 44th to kill her. Joseph E. Lynch: That is was he said. And when you are dealing -- now at this we are perfectly rational human being, normal human being, I would agree that that is testimony is incredible as a matter of Law. I am not sure is not incredible when you are dealing with the person of this—of this intellectual level or lack of that, really. I think that the -- John Paul Stevens: Or not at the level of one competent to stay in trial, it is what you are saying? Joseph E. Lynch: He was competent found to be competent, and I can say candidly that I was surprise in my discussion with them at the level of his understanding at that time. I think that if have been told that intent was element of the crime, I am sure he could have understood it and he says we would not plea that if had them so told. Speaker: And I gather you just that we are not to make these decisions on the cold record when a Judge who actually had him before him. Joseph E. Lynch: That is correct. Speaker: Ask the questions they heard his answers and that -- Joseph E. Lynch: That is correct Your Honor. I feel that there is clearly a question of fact, like what I have cited the Brady case with the proposition that to question of voluntariness of the guilty plea is always a question of fact and it obviously only the Judge it sees the witness and hears the testimonies in a position to make that judgment. I would ask that you affirm the judgment of the lower court unless you have any other question out. Warren E. Burger: The sentence would reduce to 20 years, would that wash this case out? Joseph E. Lynch: Well, it might watch the case all but I do not think it would do anything with your principle your Honor. You see the -- Warren E. Burger: (Inaudible) you get 25 instead of 20 years, is it not? Joseph E. Lynch: Well, actually I am not sure he is even complaining about that. Honestly, I have just been advised that he is on the street on parole. You see, I do not think this stands for the proposition in this decision that there has to be a legalistic mechanistic formalistic recitation of every element of the crime to an accused. At the very most this decision stands for the proposition. If you say he did consider another single thing, at the very most it stands for the proposition that when a person is charged with murder in second degree, he must know that intent is an element of that crime, and that he must not -- that that information may not come to him from the horrendous nature of the crime. It has got come to him by someone who is in a position that to tell him this is the element. That is the only element that was talked about here. There are cases as the Court realizes where people for example have been found guilty of postal robbery and they attempt to set -- and not found guilty, pleaded guilty of postal robbery. They attempt to set the plea aside on the grounds that it was not explained to them that to commit this crime, you will have to have to put life in danger, you have to use a dangerous weapon and put life in danger, and there are certain presumptions as to whether a weapon is dangerous, whether ti is loaded or not. The Court had no problem with that they said no, you do not have to know all that, you do not have to be told all that, but that I take its different when you are talking the element of intent in a murder second charge. Thank you very much Your Honors Warren E. Burger: Thank you Gentleman. The case is submitted.

John G. Roberts, Jr.: We'll hear argument first this morning in Case 16-5294, McWilliams v. Dunn. Mr. Bright. Stephen B. Bright: Thank you, Mr. Chief Justice, and may it please the Court: This Court, in 1985, clearly established in its decision in Ake v. Oklahoma that a poor defendant whose mental health or mental issues were a significant factor in the case, is entitled to an expert, and an expert independent of the prosecution, to assist in the evaluation, the preparation, and the presentation of an effective defense for the defendant. Anthony M. Kennedy: Suppose we thought that -- and it's not your position, I understand it -- that Ake was ambiguous on this point. And then over time, it became clear that, really, the psychiatrist ought to be consulting with the defense and -- and not with the prosecution. Would we say that the basic right was clearly established, and that over time, we are simply making a refinement, or if we think Ake is ambiguous -- I know you'll disagree -- if we think Ake is ambiguous, we are establishing a new right -- Stephen B. Bright: Right. Anthony M. Kennedy: -- when we say it must be a defense psychiatrist. Stephen B. Bright: Well, as Your Honor guessed, we don't think it's ambiguous. In fact, we think it's quite clear when you look -- Anthony M. Kennedy: Sorry. Go ahead. I'm -- I'm assuming that we find it ambiguous. I'm asking, then is that -- is -- can it be the position that this is just a refinement of the right, or is it a new right? Stephen B. Bright: Well, if you accept that it was ambiguous, which, of course, we do not accept -- Anthony M. Kennedy: Right. Stephen B. Bright: -- but, of course, I mean, this goes to some of the clearly established cases the Court has looked at where it's -- does it extend a decision that the -- the Court has -- has rendered, and is this asking for something more. We would submit here, it -- this can't be anything but an independent expert, because -- Ruth Bader Ginsburg: Why -- Stephen B. Bright: -- if it even goes to -- Ruth Bader Ginsburg: -- is that so, Mr. Bright, if -- if it's -- we're informed correctly by the Respondent that on remand in Ake itself, the lower courts held that due process is satisfied by the assistance of a neutral psychiatrist. So if it was all that clearly established, it was not understood by -- in the very case that was argued here, and that on remand, according to the Respondent at least, the lower courts held a neutral psychiatrist is good enough. Stephen B. Bright: Well, but whether or not the Oklahoma court got it right or wrong when the case was remanded, what -- what clearly established, we believe, starts and ends with this Court, whether something is clearly established. And when the Court says, where it's a significant factor, you have a right to an expert and then goes through the things that that expert is going to do to gather facts for the defense, to analyze facts for the defense, to even assist in cross-examination of the State's expert witness, you can't get more intimately involved in the defense of the case than being involved in the cross-examination of witnesses for the prosecution. Ruth Bader Ginsburg: But we're told here that the -- that the -- the prosecution didn't have a partisan expert either, that there was this -- everyone who was appointed was a neutral expert serving the court, the prosecution, and the defendant. So I think, roughly, it suggests you're asking for something that the prosecution didn't have, didn't have an independent expert. Stephen B. Bright: Well, in -- in our case, it's very much like Ake. I mean, there were mental health experts who testified, but all of them are State experts. And -- John G. Roberts, Jr.: What do you mean by "State experts"? Stephen B. Bright: They all worked -- John G. Roberts, Jr.: Provided by the State or working for the prosecution? Stephen B. Bright: No. They all worked for the State hospital. And so, as a result, they were people who -- the Lunacy Commission, which did the first examination, are three doctors at the State hospital that make an evaluation and then report to the court. John G. Roberts, Jr.: So you mean they were paid for work by the State -- Stephen B. Bright: Right. John G. Roberts, Jr.: -- as opposed to being -- working for the prosecution for a particular result in a given case. Stephen B. Bright: That's true, Mr. Chief Justice, but had there been an issue, which there was in this case, and should have been litigated, certainly the State has no problem having an expert. The State can retain an expert, can retain more than one. The -- the right that was given in Ake was very modest. It was very modest. It was an expert -- the defendant can't choose the expert. But -- and -- and it's only one expert. But it is an expert to at least make the adversary system work, to some extent. And I think what the Court recognized, and I think this goes to what Justice Ginsburg was asking me about, is that mental health today, as the Court said in Ake, experts vary widely with regard to, first of all, whether there is a mental illness. Second, what it is, what the effects of it are on behavior, and how it plays into the legal -- Elena Kagan: Mr. Bright, even the terminology that you are using, both here and in your briefs, contains some ambiguity, because you keep saying, well, Ake established the rights to an independent expert. But "independent" can mean, really, the defense expert, or "independent" can mean independent of both the prosecutor and the defense. And what you are saying that Ake held was that it was a defense expert. But -- and there are certainly parts of the opinion that read like that. There's no question that when Ake talks about assistance over and over again, it reads like a defense expert. But the question is, did Ake really preclude the idea of a completely independent person, independent of both the State and the defense? Stephen B. Bright: Well, it did, because of the way it described what the expert was to do. And in the two places where the Court said, "we hold," they said, "we hold, when it is a significant factor, that the defendant is entitled to an expert." That is with regard to both the guilt phase issues and with regard to the penalty phase issues. So I think the Court -- and then the Court isn't -- this is not one of these cases that has, at least in my opinion, a lot of ambiguity, because the Court could not have been more detailed or specific about what that expert was going to do. So we get -- Anthony M. Kennedy: Suppose you have a single, court-appointed expert, and let's assume he's not paid by the State; he or she is an outside expert. Can that expert, ethically, under the ethical rules that apply to psychiatrists, meet just with the defense and say, now, you should be sure to do this, and then go meet just with the prosecution, or do both parties have to be present? Do -- do you know what their ethical duties are in this regard? I read the article by Dr. Stone and wasn't quite clear on this. Stephen B. Bright: Well, I think the ethical duty is that you can't work both sides of the street in that way. It's hard to imagine how that could ever work, unless you just want the opinion of the expert. But once -- what happens so often with people who start out as neutral experts, is they become experts for one side or the other, usually the prosecution. John G. Roberts, Jr.: Well, you say -- Stephen B. Bright: So -- John G. Roberts, Jr.: -- in your -- in your reply brief in -- on page 1, you've got four examples where you say the language clearly shows that they were meant -- meant to be -- I don't know what the word is, but you hope it's not partisan or nonobjective, but aligned experts, I guess. And the first one, they are supposed to provide assistance that may well be crucial to the defendant's ability to marshal his defense. Well, you can certainly understand the assistance being here is the diagnosis, this is what these medical terms mean, this is what the, you know, rules are or this is -- you know, it doesn't necessarily mean that they are going to be partisan in helping shape the defense. The other one -- another one of the four you say is that they're needed to translate a medical diagnosis into language that will assist the trier of fact. Well, that doesn't entail partisanship of any kind. It -- it's simply sort of a medical instruction. You know, this particular term means this, and then the lawyer can go off and develop her defense. Stephen B. Bright: But I don't think you can take each one in isolation. You have to look at all the things that the Court talked about. It talked about this person gathering information, organizing information, meeting with the defense about how this can be used in the defense of the case, choosing among viable defenses. It even talks about the person, as I said, talking to the lawyers about how you cross-examine the prosecution's expert. Sonia Sotomayor: Mr. Bright, that is the essence of this. Another -- there is a lot of talk about independent, neutral, defense expert, but really what's at issue is what kind of aid a defendant is entitled to to mount a viable defense, correct? Stephen B. Bright: Correct. Sonia Sotomayor: And so once there is evidence -- and here, there was evidence at the last moment -- that, in fact, as the prior experts have testified that certain tests should be taken, that certain signs of organic brain injury were present, once that was confirmed, what the expert was saying to the Court is now I need help. Stephen B. Bright: Right. Sonia Sotomayor: Because this expert is -- this court-appointed expert is telling us that all these things really are irrelevant to my defense, but I have a viable claim that organic brain injury exists, and that it might have an effect and provide me with a defense. So I need assistance in determining that, correct? Stephen B. Bright: Exactly. Sonia Sotomayor: In what other area do we permit the State or a court to appoint -- to not fund an expert once there is viable evidence of a potential defense? Stephen B. Bright: I -- I don't know of any. You mean with regard to mental health? Sonia Sotomayor: In the -- in any area. Stephen B. Bright: I mean, you look at Ford v. Wainwright, where the Court looked at the question of whether someone was competent to be executed or not, and the Court found that there, the -- for the process to work, you couldn't have what Florida had, which was just accept information from the State's doctors and not accept information from the defendant's doctors. And, of course, this Court found in Panetti v. Quarterman that that was a clearly established rule, what was in Justice Powell's concurring opinion was a clearly established rule about the procedures that were to be involved with regard to whether or not a person is competent to be executed. Sonia Sotomayor: Now, I'm not sure that you've answered Justice Kennedy's question. He started with the observation that there is an argument. I know -- we know you don't accept it, you don't have to keep saying that -- that Ake was ambiguous. If it was, what happens to your case? How do you win? How do you get to the point that this was sufficiently clearly established at the time of this case so that it was an unreasonable application of law by the court below? Stephen B. Bright: I -- I think to prevail under 2254(d), we have to show that there was a violation of a clearly established -- of a -- a Federal rule or a constitutional rule that was clearly established by decision of this Court. So I think that's what our -- what we have to show, and Ake is what we have to show for that. And I want to say this -- John G. Roberts, Jr.: Mr. Bright, before you move on to that, you say it's clear. The LaFave treatise on criminal law -- which I think is, if not the most cited treatise in this Court, certainly one of them -- this is a quote: "Ake -- Ake appears to have been written so as to be deliberately ambiguous on this point, thus, leaving the issue open for future consideration." So your position has to be that the LaFave treatise is -- is wrong, it wasn't ambiguous at all -- Stephen B. Bright: Well, I -- John G. Roberts, Jr.: -- it wasn't deliberately ambiguous. Stephen B. Bright: -- have the greatest respect for Professor LaFave, but just like lower courts, professors make mistakes, too. John G. Roberts, Jr.: Well, they do, but your position has to be that LaFave made a mistake, the Fifth Circuit made a mistake, eight State courts -- the final State courts made mistakes, the -- on remand in Ake, it was a mistake. All of those things -- not saying whether you're right or wrong on the merits, but that body of authority that takes a different position would seem to me to establish that the question was ambiguous, at least coming out of Ake, as opposed to clearly established. Stephen B. Bright: Well, I think whether a proposition is clearly established begins and ends with this Court. I think the ultimate question of whether it was clearly established -- yes, this has been 30 years since Ake was decided. So, of course, there are going to be lawyers and judges, being what they are, there are going to be differences. But I would point out the weight of the authority is certainly on our side -- Samuel A. Alito, Jr.: Mr. Bright -- Stephen B. Bright: -- according to the Court's finding. I'm sorry. Samuel A. Alito, Jr.: As I understand your position -- and you'll correct me if I'm wrong -- you seem to be arguing that what the defendant is entitled to is an expert who will function, more or less, like the kind of expert who would be retained by the defense, if the defense were simply given funds to -- to hire an expert. Am I right in -- in thinking that? Stephen B. Bright: Well, that's not what the case holds. Samuel A. Alito, Jr.: But I -- but in terms of what this expert would do, you'd want an expert who would function more or less like that. Stephen B. Bright: Well, to -- I mean, the prosecution can hire as many experts as it wanted. Samuel A. Alito, Jr.: Right. Stephen B. Bright: It can choose experts that will come out the way it wants. If you're in Texas and you want to prove future dangerousness, doctors will testify every single time they get a chance that the defendant is a future danger. So you can hire that kind of partisan expert. Samuel A. Alito, Jr.: Yeah, well, that's what I'm -- Stephen B. Bright: But I -- Samuel A. Alito, Jr.: -- that's what I'm getting at. I don't see how an expert who is chosen by the court and paid by the court can ever function in anything like that capacity for a defendant. And one thing that is perfectly clear from the opinion in Ake, is that the court would pick the expert, and it's one -- the court will pick one expert and that's it; the defense has to live with it. And I just -- if you could explain how that kind of an expert can ever function like an expert retained by the defense. Stephen B. Bright: Well, it's no different than a court-appointed lawyer. I mean -- Samuel A. Alito, Jr.: It is different from a lawyer, because a lawyer -- you know, a lawyer doesn't have to believe in the client's innocence. The lawyer has a professional duty, within the bounds of -- of professional responsibility, to do everything that can be done to advance the interests of the client. But an expert who's going to write a report and is going to testify, presumably, if the person acts in good faith, is going to give an honest opinion. Stephen B. Bright: Yes. Samuel A. Alito, Jr.: Am I wrong? Stephen B. Bright: Right. Samuel A. Alito, Jr.: So what would you say to this court-appointed -- you -- you get one expert that's appointed -- what do you say to this expert? Now, I don't really want you to give your neutral opinion. I want to give you -- I want you to give your most defense-friendly opinion on this? Stephen B. Bright: No. But, I think, what the -- the court could have gone further. Sonia Sotomayor: But, Mr. Bright, why is that wrong? Stephen B. Bright: What? I'm sorry. Sonia Sotomayor: Why -- why is it wrong to ask an expert that's been provided to the defense to do that? Stephen B. Bright: Well, I think -- Sonia Sotomayor: -- to say I have to defend this man, give me my best argument. Stephen B. Bright: I -- I think that's what lawyers do. And I think -- Sonia Sotomayor: Not lawyers, experts. Stephen B. Bright: Yeah, and experts. I think we ask the expert to look at whatever information the expert has gathered, look at the defendant, examine the defendant, all those sorts of things. And, of course, you're looking for, hopefully, a favorable opinion, but that's not always going to be the case. Samuel A. Alito, Jr.: Well, no, I understand. That really wasn't my question. I -- of course you could ask the expert, you know, give me the -- give me whatever is most favorable, give me advice that is most favorable to my client. But when it comes down to giving an opinion about whether the individual is sane or -- or something that's relevant to mitigation, I don't see how you can ask the expert to do anything other than to give the expert's honest professional opinion. So it doesn't -- it's -- I'm having difficulty seeing how an expert who is appointed by the court -- you get one -- could ever function that way. And I -- I read the oral argument transcript in this case, and there are several places in the oral argument transcript when -- where the court and the attorney for Ake equates an -- an expert who is appointed by the court with a neutral expert. And that seems to be what that kind of an expert would be, a neutral expert, not an expert who is really part of the defense team. Stephen B. Bright: But -- but the -- the expert described in the Ake opinion, Justice Alito, is someone who is a part of the defense team. I mean, this question of partisan came up, of using the word "partisan." Of course, parties, whether it be the prosecution, whether it be a wealthy criminal defendant, whether it be a wealthy civil litigant, are all going to hire partisan experts. They're going to hire the experts that they think will give them the opinion that will help their side of the case. Stephen G. Breyer: Did the -- Stephen B. Bright: But -- Stephen G. Breyer: Did the -- did the defendant ask for an expert? On page 11 of their brief, they quote the Respondents, these court of appeals, which says that there is no indication in the record that McWilliams could not have called Dr. Goff, or the trial court indicated that it would have considered a motion to present an expert. But McWilliams says the Respondent chose not to file one. And your brief on page 9 doesn't say he did ask for an expert. He wanted more time. Stephen B. Bright: Well -- Stephen G. Breyer: Did he ask? He said, Judge, please appoint an expert. Did he? Stephen B. Bright: Two things, Justice Breyer. Stephen G. Breyer: Yeah. Well, did he or didn't he? Yes or no. Stephen B. Bright: Well, what he did, and you can look at what John Bivens, one of the lawyers said, right towards the end -- it was in the Joint Appendix at about 207 -- where he made a long plea, you can almost see him on bended knee reading this, in which he said, we've received these records, which show he's on psychotropic drugs. We've received this report. We don't know what these terms mean or what it's about. We cannot determine for ourselves what we have here. And I'd point out, these lawyers were really sandbagged. Stephen G. Breyer: And then he ended up by saying, that is why we renew the motion for a continuance. Stephen B. Bright: For an expert. I mean -- Stephen G. Breyer: Does it say that? Where did it say that? I just don't see -- Stephen B. Bright: Well -- Stephen G. Breyer: -- where he said. Stephen B. Bright: -- if you read all the way through, all the motions for a continuance, I mean, half the pages. Stephen G. Breyer: Did he ask the judge to appoint -- Stephen B. Bright: He didn't come right out and say -- Stephen G. Breyer: The answer is no, then; is that right? Stephen B. Bright: Well, no, I don't think that's true -- Stephen G. Breyer: Okay. Stephen B. Bright: -- because I think everybody knew what exactly was going on when he kept saying, I need an expert and I need -- Stephen G. Breyer: Where, somewhere else, does it become apparent that he wants the State to appoint an expert? Where? I just want to know where. Stephen B. Bright: Well, he says -- Stephen G. Breyer: I'm not seeing -- Stephen B. Bright: -- over and over, we can't do this without an expert. Stephen G. Breyer: Yeah. But maybe he already has -- Stephen B. Bright: We -- Stephen G. Breyer: -- someone -- Stephen B. Bright: -- need -- Stephen G. Breyer: Maybe he already has an expert. They did have someone advising them. Stephen B. Bright: Well, when the case goes up on appeal to the court of criminal appeals, both the State of Alabama and the defendant brief it on the merits of the Ake claim. The State argues he got everything he's entitled to under Ake, a neutral expert. He's not entitled to any more. The argument for -- on behalf of Mr. McWilliams was that he was entitled to an independent expert. And the court of criminal appeals, when it decided the case, said all he was entitled to was the expert that he had or no expert at all, but to have these State experts examine him. So that issue is crisply and clearly presented there. It's presented in the district court. It's presented in the court of appeals. And every court has looked at this on the question of whether he was entitled to an independent expert or not. Sonia Sotomayor: May I -- may I point out -- Stephen B. Bright: Yes. Sonia Sotomayor: -- on page 211A, Mr. Soble does say, "I told Your Honor that my looking at these records were not of any value to me, that I needed to have somebody look at these records who understood them, who could interpret them for me. Did I not tell Your Honor that?" And shortly thereafter he says, "Your Honor gave me no time in which to do that. Your Honor told me to be here at 2:00 this afternoon. Would Your Honor have wanted me to file a motion for extraordinary expenses to get someone?" "The Court, I want you to approach with your client." And proceeded to sentence him; correct? Stephen B. Bright: Sentenced him to death right then, without any further -- and I'd point out this, as I was saying -- about to say a moment ago, all of this evidence came in in 48 hours, 48 hours before they get the first report from Dr. Goff, which is a neuropsychological examination, the day before they get records from the mental health -- the hospital, from the Taylor Hardin Mental Health Hospital. And on the day of -- he had been subpoenaing the records from the prison since August, and this is October 7th -- he receives those records on the morning of the hearing itself when he gets to court. And now he's got two huge piles of records from the hospital and from the prison. He's got a report using terminology that he doesn't understand, making findings that he doesn't understand. And he says I need help. We can't possibly go forward in this case because we don't know what we have. Anthony M. Kennedy: Suppose -- Stephen B. Bright: We know we have something. Anthony M. Kennedy: Suppose the Judge, the court, appoints the head of the psychiatric department at a distinguished private university, one person, and he comes in and he tells the defense counsel, now I'm going to explain to you what all these terms mean. There are lots of tests. I'll tell you about each of these tests. And I'm going to have the same meeting with the prosecution later on. You can ask me anything you want and then I'm going to testify. I'm not sure what my opinion is yet, but I'll give my opinion. But here -- here's the basis for -- for my opinion, and I want you to ask any questions you want about what these tests mean. Is -- is that sufficient? Stephen B. Bright: That's not sufficient -- Anthony M. Kennedy: Okay. Stephen B. Bright: -- because -- Anthony M. Kennedy: So you say that there's always a conflict of interest unless the psychiatrist works for the defending -- for the defense only. Stephen B. Bright: No. Not necessarily a conflict of interest. But what Ake stands for is two things, really -- the adversary system. The Court talks about making it possible for the defendant to present his case within the adversary system. It's a minimal ability. He doesn't get a partisan expert. He doesn't get to choose the expert, but he gets a competent expert to give whatever advice that expert can give to him as he prepares his defense and as he prepares to deal with the prosecution case. Elena Kagan: Mr. Bright, can I ask you for your interpretation of -- there are two paragraphs on page 85 which talk about Smith v. Baldi, which was a case -- Stephen B. Bright: Yes. Elena Kagan: -- where there was, in fact, a neutral expert. And -- and -- and the court talks about why it doesn't have to pay attention to Smith v. Baldi. I'm just curious as to what your interpretation of these paragraphs are, because -- well, I'll just leave it like that. Stephen B. Bright: Well, I think it was giving Baldi -- Smith v. Baldi a respectable burial is what it boils down to, because the court says we're in fundamental disagreement and points out that Baldi is a case that comes from 1953. At the time that case was decided, there wasn't even a right to counsel for -- for defendants. So the court says this is of another time and other variables and, therefore, it's -- it's not -- keep us from -- from facing -- taking on this issue about -- Neil Gorsuch: But, counsel, if we could just follow up on that. Doesn't it imply that a neutral expert would be permissible? Stephen B. Bright: No. I think it says that was the old days. Those were the horse-and-buggy days, or almost there, and this is today. And today, mental health is hotly contested. It takes experts on both sides. And for the defense to -- Neil Gorsuch: Where -- where is the stopping point, then? Because common law history, our tradition is that often courts could apply and appoint a neutral expert of its own choosing. If the defense now has a right to a particular kind of expert, partisan expert -- Stephen B. Bright: It's not a partisan expert. I'm sorry. Neil Gorsuch: Well, if I might just finish, and then you can tell me where I've gone off the rails. Where's the stopping point? Is it just psychiatry? Would we also have to apply the same rule in other kinds of medicine, perhaps? Forensic science? Where is the stopping point that you would advocate for the Court? Stephen B. Bright: Well, I wouldn't advocate it because it's not before the Court in this case. And -- Neil Gorsuch: But it would be something we'd have -- an implication we would clearly have to consider. Stephen B. Bright: Well, but -- but the thing that the Court has to consider here is the unique nature of mental health and the fact that experts widely disagree on mental health. Neil Gorsuch: Experts widely disagree on everything. That's why -- Stephen B. Bright: And that -- Neil Gorsuch: -- you hire them. Stephen B. Bright: And that may mean -- Neil Gorsuch: And why they cost so very much. Stephen B. Bright: And -- and many courts, State courts, other courts, have said and, of course, under the Criminal Justice Act in the Federal courts, that where there are other issues, there may be other experts as a due process question -- Neil Gorsuch: That's -- that's my other question, is if due process requires a partisan expert, surely it would also require a partisan lawyer, in which case what does the Sixth Amendment do? Does it guarantee the -- the right of effective assistance of counsel, it's just superfluous? Stephen B. Bright: No, the Sixth Amendment guarantees a lawyer who will carry out their professional responsibilities in an ethical and legal way as they should. And by the same token, an expert who's appointed would stay within -- would act within the professional boundaries of -- of the profession, of the mental health profession. I would like to reserve the remainder of my time. John G. Roberts, Jr.: Thank you, counsel. Mr. Brasher. Andrew L. Brasher: Thank you, Mr. Chief Justice, and may it please the Court: Ake did not hold that a neutral expert fails to satisfy the Due Process Clause. Let me talk about the psychiatric assistance that was provided in this case, because I think it's important to begin there. So before the trial of this case even started, the defendant made a motion for a full psychiatric evaluation, specific to mitigating circumstances that he was then going to want to put at issue at the penalty phase of the case. And he was evaluated for over a month by three psychiatrists and a psychologist for that purpose, for developing mitigating circumstances. Sonia Sotomayor: I'm sorry. I thought that the three psychiatrists were part of the Lunacy Committee. Andrew L. Brasher: That's correct, Your Honor. Sonia Sotomayor: And I thought that the purpose of the Lunacy Committee was to see if he was mentally competent or not. Andrew L. Brasher: That's incorrect, Your Honor. The -- the first motion that was presented by the defendant expressly asked for an evaluation with respect to mitigating circumstances, and the Lunacy Commission report also addressed that issue of mitigating circumstances. But the -- Sonia Sotomayor: Did that report suggests that further tests had to be taken with respect to that? Andrew L. Brasher: No, Your Honor. That report suggested that there were no mitigating circumstances on the facts of the -- of the case. Then after the penalty phase, the defendant asked for more psychiatric assistance. They filed a motion for a full neuropsychological evaluation, including a specific series of psychological tests. And that motion was also granted. That motion was granted on the same day it was filed, September 3rd, 1986, which was just a year or so after this Court had decided Ake. And then two experts did that. There was an expert -- Elena Kagan: Sorry, General, but if we could just focus on -- because I think it would help to just sort of -- let's assume for the moment that this defendant did not get what he was asking for, which was a defense expert, and say whether Ake entitled him to such an expert. And I just want to sort of focus on the money sentence in Ake, you know, what -- the "we therefore hold" sentence. And it says -- here's what we hold. "We hold that when the defendant makes this preliminary showing that mental health is going to be at issue, the State must assure the defendant access to a competent psychiatrist who will assist in evaluation, preparation and presentation of the defense." So assist in evaluation, preparation, and presentation of the defense. And, you know, recognizing that we're all smart people, and we can read any words, we can have an argument that any words mean anything we say, still, "assist in evaluation, preparation, and presentation of the defense," doesn't that mean, like, you know, that's what you -- that's the phrase you would use for a counsel, to assist in evaluation, preparation, and presentation of the defense. It means somebody on the defendant's side. Andrew L. Brasher: Well, if I can answer that with two points, Your Honor. The first is that I think neutral experts are capable of -- of assisting the defense in a way that an expert assists the defense. An expert -- Elena Kagan: Well, they're capable in the sense that sometimes they might, but it's not what you would -- this is -- I -- I guess I'm repeating myself, but this is the language that you use when you're talking about, not somebody who sometimes might, and is capable of, but who, in fact, will do so, to the best of his ability, assist the defendant. Andrew L. Brasher: And -- and I think the way an expert assists the defendant is by translating a medical diagnosis into language that lawyers can understand. The -- the Court says in Ake that psychiatrists gather facts and offer opinions. And we would submit that a psychiatrist who does what you ask them to do, who does the evaluations that you ask them to do, prepares the reports that you ask them to prepare, they're assisting your defense, just like they did in this case -- Ruth Bader Ginsburg: But the word "assistance," you know, we use it -- we use it most often is, the defendant is entitled to the assistance of counsel. Assistance of counsel doesn't mean neutral. And this -- the one thing that stands out in this case is the word assist the defense, assisting, adversarial. The -- those at least are clues that what the decision writer had in mind was assisting the defense, just as a lawyer assists the defense. Andrew L. Brasher: Well, if I could just respond to that, Justice Ginsburg. I think the Court has to evaluate the holding of Ake, in light of the facts and the question presented in Ake, right? This isn't a statute that we're interpreting, it's a judicial decision. And the problem in Ake was not that there was a neutral expert that had assisted the defendant. The problem in Ake was that there was no expert that had assisted the defendant at all -- Elena Kagan: But sometimes the Court goes beyond what the facts are, and sometimes -- you know, sometimes it issues a holding that's just precisely calibrated to the facts, and sometimes broader. And -- and it seems that what we do is we look at the language, we look at what the Court said, and said given what the Court said, is this right clearly established. And I guess, again, just to repeat what Justice Ginsburg said, I started counting up the word "assist" in this opinion and, frankly, I lost track. That every time this opinion talks about this, it talks about assisting the defense and assisting the defendant, including to cross-examine the prosecution. It just seems that the premise of the entire opinion is you're on the defense team. Andrew L. Brasher: Well, there are -- there are parts of the opinion that we would suggest that also cut in our favor. So, for example, the Court's discussion of Baldi, I think, cuts in our favor, because the Court does distinguish Baldi on the grounds that neutral experts testified in that case. Baldi was a case where this Court affirmed -- Elena Kagan: Well, at first it does, you're exactly right. And this is why I asked about Baldi. I find those two paragraphs incredibly confusing, because the first paragraph says, we're distinguishing it because there it was a neutral expert. And then the second paragraph says, anyhow, Baldi -- I mean, it does -- it doesn't use the term overall, but a lower court would be crazed if it relied on Baldi after that opinion. Andrew L. Brasher: Well, I'll count "incredibly confusing" as a plus for me in a Federal habeas case, where the law has to -- Elena Kagan: No, no, no. Two paragraphs might be confusing, but the question is, what does the opinion say, and particularly, what does the holding say? Andrew L. Brasher: Right. And -- and the other part of the opinion that we think counts in -- in our favor is the part where the Court says, in the paragraph that has this holding in it, that we're going to leave it to the States to decide how to implement this right. Stephen G. Breyer: I saw it, but what about the point that Justice Kagan raised. She was quoting from the opinion. Why do we have to get into an argument about whether they can be independent or partisan? An expert should not be -- he should give his honest opinion. That's what they're supposed to do. Why is that the right characterization? Why not just quote from the opinion? Andrew L. Brasher: What -- what -- Stephen G. Breyer: The defense has to have somebody who will conduct an appropriate examination, assist in evaluation, preparation, and presentation of the defense. And in case we're unclear what that means, the court previously said that that person, the object is, is the insanity defense viable, present testimony to that effect, assist in preparing the cross-examination of a State psychiatric witness. So why do we have to say more than? That's the question. And here it seems to me that this defendant certainly did not get that help. Andrew L. Brasher: Well -- Stephen G. Breyer: He came in, they presented a -- a report, I've read pages from the report. And that report was apparently controversial. And did the defendant have someone to do cross-examination, help him with that, help him understand the report, et cetera, and that's the end of the case. Andrew L. Brasher: Right. So if I could just address that, Justice Breyer. So just with respect to the timing, the defendant asked for this report, asked for a full neuropsychological evaluation, and the court granted the motion. And the defendant asked for that report to be provided to the -- to the court before the judicial sentencing. And that's when the report was provided -- Stephen G. Breyer: So what? So what? I'm sorry, I'm not being facetious. I'm -- I mean, literally, I'm -- I don't know the answer to that. So what? Did he have a person who could look at the report, help him cross-examine, help him understand? Now, who was that person? Andrew L. Brasher: Well -- Stephen G. Breyer: I didn't see one here. Andrew L. Brasher: My point, Your Honor, is that that person who prepared the report was his expert. It was exactly what -- Stephen G. Breyer: Mr. Goff? Andrew L. Brasher: Mr. Goff, exactly. Stephen G. Breyer: He didn't seem to be his expert. He seemed to be a member of the State Lunacy Commission. I don't think he consulted -- did he consult with the defense attorney before? Did he explain to the defense attorney? Et cetera, et cetera. Andrew L. Brasher: Just to be clear, he was not a member of the Lunacy Commission. Stephen G. Breyer: Oh, all right. Andrew L. Brasher: He was a -- he was the head of psychology at a mental hospital. And Dr. Goff also routinely testifies for criminal defendants in cases -- Stephen G. Breyer: Fine, fine. I'm assuming he was a fine doctor. My question is, did he assist the defense in the cross-examination? Did he assist -- of himself, I doubt it. Did he assist in the preparation, the -- you know, these -- those four things that were listed? Did he or did he not? Andrew L. Brasher: There was no cross-examination. Stephen G. Breyer: And he was -- and why was there no cross-examination? Andrew L. Brasher: Because he was the defense expert. I mean, this -- Stephen G. Breyer: Because he was the defense expert? Andrew L. Brasher: Right. Anthony M. Kennedy: Well, you usually meet with your expert and go over the testimony with care. Did that happen here, or could that happen here? Andrew L. Brasher: It -- I -- Justice Kennedy -- Anthony M. Kennedy: And -- and if he had met with the prosecution, would that have been a violation of -- of -- of his ethical obligations? Andrew L. Brasher: Dr. Goff comes into the case because the defendant files a motion for full neuropsychological testing after the penalty phase of trial. He wants to get those results to provide to the court. I mean, we submit that in Ake, this Court said that the defendant has the right to get a psychiatrist to assist him, to put his mental health at issue. And here, the defendant wanted to put his mental health at issue for mitigating circumstances -- Anthony M. Kennedy: Could he have been consulted by either or both sides privately to prepare -- prepare the examination? Andrew L. Brasher: I don't think that there was anything prohibiting the prosecution from talking to -- Stephen G. Breyer: Would you -- would you object to the following disposition of the case: That we say the issue is not partisan versus independent. The issue is whether the defense had assistance from a psychiatrist in the evaluation, preparation, and presentation of the defense, including cross-examination of hostile or State psychiatric witnesses. That's what Ake provides. That's clear. And what we want you to do, court of appeals, is decide whether that was so. Andrew L. Brasher: I -- I think that we -- I would suggest that the right way to -- to -- Stephen G. Breyer: Would you agree with that or not? Andrew L. Brasher: Well, I -- I agree with it except for this one caveat -- Stephen G. Breyer: You do agree with it. Andrew L. Brasher: Except for this one caveat, which is that this is a Federal habeas case, so the question would be whether the State courts unreasonably applied -- Stephen G. Breyer: If they did not -- Andrew L. Brasher: -- the holding in Ake -- Stephen G. Breyer: If they did not give the -- if they did not give him psychiatric assistance and pay for it, a psychiatrist who would have done those four things that I just mentioned, then they did violate clearly established law -- Andrew L. Brasher: But -- Stephen G. Breyer: -- because that's what Ake says. Andrew L. Brasher: But my -- my point is though, Your Honor, is that the question under Federal habeas laws is whether the State court unreasonably applied the law. That was the second question presented in the cert petition from Mr. -- Samuel A. Alito, Jr.: Mr. Brasher, I thought the question on which we granted cert was whether somebody with the status of Dr. Goff sat -- whether it was clearly established that somebody with the status of Dr. Goff did not satisfy Ake, not whether Dr. Goff, given his status, did the things that he was supposed to do under Ake. Andrew L. Brasher: That's exactly right, Justice Alito. And my point was that that was the second question presented in the cert petition. Justice Breyer's question was the second question that the Court didn't grant cert on. To talk about the question that the Court did grant cert on, I do think it's important that this issue wasn't presented in Ake because this is a Federal habeas case, and this is the first time that anyone representing a State or the Federal government has been able to stand here and argue that a neutral expert actually does satisfy the Due Process Clause. And we would submit that the way Federal habeas is supposed to work in this area is that the States sort of get a first shot at the -- the Supreme Court to -- to argue our position. Ruth Bader Ginsburg: Is there -- is there any jurisdiction that holds that today, that all that Ake requires is a neutral expert? I thought by now every jurisdiction recognizes that Ake requires an expert who will be, essentially, part of the defense team. Andrew L. Brasher: Well, this issue really has been mooted over the last 30-some-odd years because of statutory changes. So there are -- there are jurisdictions that have reversed their previous cases because -- Ruth Bader Ginsburg: Including -- including Alabama, am I right, that in 2005, the Alabama Court of Criminal Appeals said Ake made it clear that an indigent defendant is entitled to an independent expert devoted to assisting his defense, not one providing the same information or advice to the court and prosecution. Andrew L. Brasher: That's correct. But what we would submit is what these lower courts are doing is they are extending this Court's precedent to address this question. And we don't have to really address this here because this is not a direct appeal case. The question in this case is not whether Ake should be extended to say that a -- a neutral expert doesn't satisfy the Due Process Clause. The question in this case is whether Ake held that. And we would submit that Ake says nothing about independent -- Anthony M. Kennedy: Well, if Ake says that you have a right to meaningful assistance from a -- from a psychiatrist, you, the defense, and then over time it becomes clear to us that that psychiatrist must be -- must -- must be retained for the benefit of the defense only, is that a new clearly established holding, or is it simply a refinement of a clearly established right that was set forth in Ake? The -- the Petitioner's counsel didn't seem to want to embrace that. So then if -- gave us the impression that if it's ambiguous, he loses, but I'm not sure that's the case. Andrew L. Brasher: Well, I think the reason my -- my friend didn't want to embrace that is because when you use the word "refinement," I think what you're suggesting, Justice Kennedy, is extension. And this Court has said that you can't extend a precedent in the context of Federal habeas. And that really is what my friend is suggesting, is that this Court should extend the actual holding of Ake to embrace this new right that says that a neutral expert is insufficient. Anthony M. Kennedy: What was the case where we said that? I think you're right. Andrew L. Brasher: The Court said -- is that in White v. Woodall, the Court said that. I should also point out that there's -- Elena Kagan: But again, General, I mean, the actual holding of Ake calls for assistance in evaluation, preparation, and presentation of the defense. And the theme of Ake, if you will, is all about how we used to think that psychiatric opinions were just like one thing, but now we know better. We know that different psychiatrists have different opinions, and it's really important to arm even an indigent defendant with the tools that he needs to come back at the State and to say -- and to say -- and to establish what he wants to establish about his mental health. I mean, that's really the theme of the opinion, that you have to give the indigent defendants, just as you give the wealthier defendant, the tools that they need to establish what they want to establish about mental health. And then that's consistent with the -- with these words that are repeated in the holding and elsewhere. Andrew L. Brasher: Well, to go to the issue of wealthy and indigence, this Court did say, in a footnote, that it was reserving that question. It was not talking about the Equal Protection Clause. Elena Kagan: No, no, no. And it's not taking about parity. All it's saying is that we recognize that the State is going to have experts, we recognize that if you had money you would have experts, we recognize that mental health is one of those things that people can have different opinions about, and that people would really like to have experts. Andrew L. Brasher: Right. Elena Kagan: And we're going to give this indigent person a single one who will be able to assist him in these ways, in evaluating, preparing, and presenting the defense. Andrew L. Brasher: And our point, Justice Kagan, is just that this question presented in this case, which is about whether a neutral expert can satisfy that, was not at issue in Ake -- Stephen G. Breyer: It seemed in the defense -- well, here, what about this. Are you saying this? "The defendant should be entitled to one competent opinion from the psychiatrist who acts independently of the prosecutor's office." That's, I think, what you're arguing. I mean, it's a trick question. (Laughter.) Stephen G. Breyer: Because, of course, I'm quoting from the dissent. Andrew L. Brasher: Okay. Stephen G. Breyer: And what the dissent says is that is precisely what the Court doesn't hold. And I wish they would. I've written dissents like that, too. We all have. But if it's a dissent and you say that isn't what the Court holds, that's at least some evidence that that wasn't what the Court held. Andrew L. Brasher: Well, Justice Rehnquist -- former Justice Rehnquist in that case dissented for three reasons, really, on this issue. The facts was most of his dissent. He said that this is a situation where no expert assistance was required at all. And he also said that this entire discussion was dicta. And then, of course, he does have this phrase where he says that you shouldn't be entitled to a defense consultant on opposing view. But we would suggest that his dissent is no more dispositive than the Chief Justice's concurrence in that case, which took a very limited view of Ake. And ultimately, the way you interpret what is clearly established under one of this Court's holdings is you look at the facts of the case and you look at the question presented, and there's just no dispute that on the facts of Ake, the problem was that he did not get any expert assistance at all -- Elena Kagan: General, that just has to be wrong as a statement of how we figure out what clearly established is. We don't look at the facts in the QP, we look at the holding. Andrew L. Brasher: Well -- Elena Kagan: This is what the holding says. You're entitled to somebody who will assist you in evaluating, preparing, and presenting your defense. Andrew L. Brasher: Well, with respect, Justice Kagan, this is what the Court said in Lopez about how you evaluate this issue. The Court said, quote -- I'm sorry -- the Court said, you look at, quote, "the specific question presented," end quote, in the case, and you see whether it's come up again. And so the specific question presented here is about whether a neutral expert can satisfy the Due Process Clause. That wasn't presented in Ake. And just to be clear, in Ake, there was a motion filed for a psychiatric evaluation for sanity at the time of the defense, and that motion was denied. The -- the motion that was filed here for a psychiatric evaluation for mitigating circumstances, the two motions, both before trial and the full psychological evaluation after the penalty phase, both were granted. Neil Gorsuch: Mr. Brasher -- Andrew L. Brasher: And that's the dispositive -- Neil Gorsuch: Mr. Brasher, one piece of evidence about what a holding means is what the parties ask for in an adversarial system, where parties generally control the outcome of cases, in terms of the issues presented. And in Ake, as I understand it, defense counsel asked for either a partisan expert or a court-appointed expert. Would have been satisfied with either one. Is my understanding wrong? Andrew L. Brasher: That's -- that's exactly right. And the fact that that motion was denied led this Court in italics, in the opinion, to say, quote: "There was no expert testimony for either side on Ake's sanity at the time of the -- Elena Kagan: That would be quite something, I have to say, General. If we say: Listen, when you read our opinions and when you try to figure out what we're saying, what you have to do is go back to the QP and just narrow it to exactly what the QP said. I think that that would be a shocking way to interpret this Court's opinions. Andrew L. Brasher: Well, just to be clear, Justice Kagan, I'm not saying you look at the cert. petition itself. I'm saying you look at the question presented on the facts of the case. Because, once again, we're not doing statutory interpretation. The effort here is not to determine the intent of the author of Ake. The question here is to determine what Ake clearly established. And just the way you interpret judicial opinions has to be in light of the facts of the case, and the question that's actually presented in the case. Because this is the first time that someone from the State has been able to make this argument to you, because it was not presented in Ake at all. The State of Oklahoma -- Ruth Bader Ginsburg: May I -- Neil Gorsuch: Maybe what the parties actually -- John G. Roberts, Jr.: Justice Ginsburg. Ruth Bader Ginsburg: One -- one facet of this case you presented as -- as -- the defense is asking for a defense-oriented expert. And you said that there was no such expert for the State. But I think the opinion itself says that: Before the sentencing judge, the prosecutor relied on the testimony of State psychiatrists who had testified at the guilt phase, that he was dangerous to society. So the judge -- before the judge imposed the sentence, is looking back to the guilt phase where there were experts for the State, not independent, whatever, they were called by the prosecutor to testify to future dangerousness. Andrew L. Brasher: Just to be clear, Justice Ginsburg, are you talking about the facts of Ake, or the facts of this case? Ruth Bader Ginsburg: I'm talking about the facts of Ake. Andrew L. Brasher: Right. Yes, Justice Ginsburg. So -- so in that case, one of the issues at capital sentencing was that the State actually put the defendant's mental health at issue as an aggravating circumstance. So this Court knows that the way capital punishment works is it's the State's burden to prove an aggravating circumstance, and if State doesn't meet that burden, then the defendant isn't eligible for the death penalty. And in Ake, the problem was that the -- is that the State used psychiatric testimony to meet its burden to make the defendant eligible for the death penalty, and the defendant didn't have any -- any way to rebut that, because the defendant's motion had been denied. Here, once again, the defendant was trying to put his mental health at issue. He was trying to raise it as a mitigating circumstance. There is no issue of future dangerousness in this case, because the aggravating circumstances that made Mr. McWilliams eligible for the death penalty -- Ruth Bader Ginsburg: I -- I'm not asking about that particular issue, but I thought that the sentencing judge now, after the guilt phase, is looking to the testimony that was given at the guilt phase by experts who were prosecution experts, not neutral experts. Andrew L. Brasher: I'm so sorry. Is that in -- is your question about Ake? Ruth Bader Ginsburg: Yes. Andrew L. Brasher: Okay. Ruth Bader Ginsburg: This is all in Ake. Andrew L. Brasher: Yes. So -- so they were not prosecution experts; they were experts that were -- that had evaluated the defendant for competency to stand trial. They -- there -- there was no evaluation ever done for the defendant's sanity at the time of the offense. And that was a key fact in Ake, because that was the issue that the defendant wanted to raise. The issue wanted to raise his mental health with respect to his sanity at the time of the offense. And because his motion was denied, although Mr. McWilliams's motion was granted, in Ake, his motion was denied, and he couldn't put that issue in front of the court. Here, the -- the motion was granted, so he was allowed to put that issue in front of the court. He had a full neuropsychological evaluation, and the judge at sentencing looked at that report as part of his evaluation. I just wanted to mention one thing that goes back to the timing issue, which is this argument from my friend that there was some kind of sandbagging with respect to these records from the department of -- Department of Health. The only thing that he has ever suggested was relevant in those records was the specific prescriptions that the -- Mr. McWilliams was -- was getting at -- at the Department of Corrections. But the lawyer for Mr. McWilliams knew about those drugs well in advance of this hearing. If you look at page 269 of the trial transcript, well in advance of trial, counsel for Mr. McWilliams talks about the drugs that his client is getting. Actually, if you look at the Joint Appendix on page 191A, you'll see that the lawyer for Mr. McWilliams actually shows up to -- to the judicial sentencing with articles about the specific drugs that his lawyers -- I mean, that his client is being prescribed. So he knew about this well in advance of the hearing. And another way to evaluate this issue is that on post-conviction review, you know, 20-some-odd years after this conviction was -- was done, Mr. McWilliams got to hire a partisan expert. He got to search the country for the best partisan expert, and he hired Dr. Woods, an expert from California. And -- and his analysis of this was just that Mr. McWilliams had -- was bipolar. He didn't draw anything significant out of those records that would lead to a change in the -- in the ultimate outcome here. I mean, ultimately, this case has been pending for over 30 years. And -- and part of the reason why Congress said that under Federal habeas, we're going to require clearly established law at the time of the State court's decision, is because we're supposed to look at this not, you know, through 2017 eyes; we're supposed to look at this through the eyes of the State court that had to evaluate this issue in 1991. And that, we submit, is why the fact that all these lower courts were saying that neutral experts could satisfy the due process clause is important, because -- Samuel A. Alito, Jr.: No that's true. There have been a lot of lower courts, a lot of smart judges have read Ake and they found it ambiguous. And I wonder if this may have been what went on in their minds. We know what's -- what was going on in Ake because we have written opinions like that, and we have joined opinions like that. This is an opinion that is deliberately ambiguous, because there was probably disagreement among the members of the majority about how far they wanted to go. Do you think that's a reasonable hypothesis? Andrew L. Brasher: I think that's a very reasonable hypothesis. And I think one way -- one way that that hypothesis has some merit is that, when this precise issue about neutral expert versus partisan experts came back up to this Court in Granville, where it was directly presented, this Court didn't grant certs. And, instead, Justice Marshall was writing a dissent from the denial of the cert. I see that my -- my light is on. Unless the Court has any further questions, I'll just wrap up and say that this case has been going on for over 30 years. This Federal habeas case has actually been pending for over about 14 years now, and we would respectfully request that the Court affirm the Court of Appeals. Thank you. John G. Roberts, Jr.: Thank you, counsel. Three minutes, Mr. Bright. Stephen B. Bright: Thank you very much, Mr. Chief Justice. I think with -- with regard to this question about extension, I think what really has happened here is refinement, that Ake was decided in 1985. That's 30 years ago. There has been some refinement of it. As -- as was pointed out, almost everybody today -- this is just not a controversial issue, because -- and I think because of Ake you now have, as the amicus brief for the public defender showed, almost in every State that either that's done in-house in a public defender office so you don't even go before a judge and ask for an expert. You just go and get it from your boss, and there's a budget in the public defender budget for it. In other places they have done it in other ways, but most people, including, as Justice Ginsburg pointed out, the State of Alabama courts have come around to the view. And -- and in -- in Morris v. State, the Alabama court said: It is clear that this must be an expert independent of the prosecution. De Freece case, De Freece v. State, the Texas Court of Criminal Appeals, regardless of what Granville held, said: This can't be right, what Granville held, this -- in order for this to work in the adversary system. And I think that's what we come back to at the end on this case, is the proper working of the adversary system. And this certainly doesn't put the defense in an equal position with the prosecutor, not by a long shot, but it at least gives the defense a shot, at least gives them one competent mental health expert that they can talk to, understand what the issues are, present them as best they can. And one of the things it says is that that expert may very well testify for the defense. So we're talking about everything from gathering information, to organizing it, to preparing or deciding on the defense to be used in the case, to coaching the -- or advising the lawyer about cross-examination, to actually testifying. And this is like with Strickland v. Washington. And -- and the statement that was made there, in this Court in two cases, in Wiggins v. Smith and Williams v. Taylor, looked at the rule. That is, that there had to be an investigation that was clearly established in Strickland, and then applied it to the lack of investigation, different kind of investigations for different things, in Smith and in Williams v. Taylor. Ruth Bader Ginsburg: If you prevail, it would be a new sentencing hearing, right? Stephen B. Bright: Yes. Ruth Bader Ginsburg: Yeah, because guilt is over. Stephen B. Bright: Yes, that's true. Otherwise, if there are no questions, I'd ask the Court to reverse. Thank you. John G. Roberts, Jr.: Thank you, counsel. The case is submitted.

Warren E. Burger: The case on for argument this morning is Mackey against the United States, number 36. Mr. Ward, you may proceed whenever you’re ready. William M. Ward: Mr. Chief Justice and may it please the Court. This matter comes before you this morning in a writ of certiorari to United States Court of Appeals for the Seventh Circuit. It was commenced in the United States District Court for the Northern District of Illinois, Hammond Division within approximately two weeks of this Court's decisions in the Marchetti-Grosso cases. The petition was brought under 28 U.S.C 2255 by Mr. Mackey requesting a new trial from a conviction of willful evasion of income taxes. The gravamen of the petition was that during the course of the income tax evasion trial, the Government had admitted into evidence 60 wagering tax returns which under the Marchetti-Grosso decisions were, of course, taken from the defendants in violation of its privilege against self-incrimination. The petition was pending for approximately eight months. No answer was filed by the Government, and in order the court required an answer to the petition. Briefs were submitted. In August of 1968, the District Court denied the petition for relief under 2255 and a PO followed to the United States, Court of Appeals which affirmed and petition for certiorari was granted on August 29,.1969 by this Court. The facts insofar as they bear upon this appeal in the evasion case are as follows; Mr. Mackey was indicted for willful evasion of taxes for the years 1955 - 56 through 1960 inclusive. The trial and the theory of the Government in the evasion case was a pure net worth case. In other words, there were no specific items of unreported income shown by the Government. This type of case has been given the imprimatur by this Court in the Holland and Friedberg decisions. During the course of this trial, the Government’s offered into evidence 60 wagering tax returns which had been filed by Mr. Mackey monthly during the years in question. At the time that these returns were offered in evidence, the District Court trying the case decided that they were prejudicial. Objection was made to their admission on the grounds that they would be prejudicial that Mr. Mackey was not on trial for being a gambler. The court withheld admitting the exhibits into evidence until the future time, when offered again upon the submission by the Government that these were needed to show the gross income from gambling during the years in question, they were then admitted by the court below. At the close of the Government’s case, Mr. Mackey moved for acquittal. He was denied. Mr. Mackey then rested. The case was given at the jury. The jury then considered the case for approximately 43 hours over a period of five days, but in a judgment of conviction which was affirmed by the Seventh Circuit Court of Appeals and petition for a writ of certiorari, there too was denied by this Court. This case offers, we think two major issues to the court at this time. They are Willis decisions and Marchetti-Grosso be retroactively applied to criminal cases which were tried and finalized prior to the date of these decisions and secondly and I think personally more importantly what is the thrust to the privilege against self-incrimination. Is it a transactional privilege or is it a testimonial privilege? And does the privilege as specifically written into the Fifth Amendment mean exactly what it says. Now, as far as the retroactivity part of this case is concerned, I even question the accuracy of the word retroactivity. Marchetti-Grosso where decisions of this Court which I feel righted a wrong in the Kahriger and Lewis decisions. Marchetti-Grosso did not break any new ground. Marchetti-Grosso said and I think reaffirmed and reaffirmed as it should have reaffirmed that the Government, the National Government, the same as the State Government has no part to compel testimony or compel evidence out of the mouth of the citizen if the purpose of this compulsion is to provide evidence to be used against him criminal prosecutions. This Court I think Universally and constantly has held in any retroactivity case before it, relative to state matters that where the element of compulsion is present, where statements or where confessions are taken from a defendant through compulsion and used against him in a criminal proceeding at any time, he may thereafter move for a new trial or take whatever steps are necessary to afford him a new trial. I think what’s before the Court this morning is this, is the standard which this Court has imposed upon the states to be imposed upon the National Government. And quite frankly upon this Court, I think if this matter would have arisen in the state or in the State Court or relative to state legislation, I don’t think there’d be any problems in the court saying that once you find compulsion and if I may use one of Mr. Justice Stewart’s phrases in dissent. Compulsion is the focus of the inquiry. Once you find compulsion, once you find a compelled statement being use against a person in a criminal trial, then retroactivity or a new trial automatically follows. Warren E. Burger: Would you clarify it for me here, just what compulsion are you referring to? Compulsion on whom to produce what consequence? William M. Ward: If Mr. Mackey had not filed these returns, he could have been indicted for failure to file a return and could have been sentenced to the penitentiary for five years and could have been fined $1,000.00 for each offense. Warren E. Burger: It’s true of all of us, isn’t it, if we don’t file tax returns? William M. Ward: That is correct. That is correct and that’s the difference actually between the Sullivan case and between this case. In the Sullivan case, this Court specifically held that a return which was required from all of the people and for the purposes of raising revenue, certainly was not sheltered by the privilege against self-incrimination. Justice Holmes, then however suggested that if any particular part of that return, any particular question in that return would tend to violate the privilege and of course the privilege could be claimed in the return, the difference is in the Marchetti-Grosso situation at least as I read the two decisions and as the lower courts who seem to following it as I suggest them to read decisions, the court held specifically that these returns were not required from a general class of people for general Governmental purpose. I think this Court held specifically that these returns were required from gamblers in order to provide evidence to prosecute gamblers. That I think is the gravamen of the case. Warren E. Burger: I know this is going over old ground perhaps, but it might help me. What about an application for passport, statement and an application for a passport? No one is required to apply for passport, but in order to get a passport, you must file an application. Would you think that the statements made in the application for passport, for example, or anyone of many other similar optional areas would be sheltered by the same -- protected by the same shield of the Fifth Amendment? William M. Ward: In the first instance, no. If the law requiring the passport or if the law requiring the filing of some other hypothetical document is directed towards the populist or the citizens at large. For a illegitimate Government purpose, in other words, there’s no filing at the purpose of this legislation was specifically to obtain evidence to be used against a narrow class of people in criminal prosecutions. But if it were as passport’s law are directed to the public at large, certainly I think you would be required to file an application for a passport. Now, if there were something in that passport application which may tend to incriminate you, then I think yes, you have probably a serious constitutional question. You got the problem of whether in asking for a passport, the Government can either compel you to waive your privilege against the self-incrimination or make the claiming of the privilege costly. And I think on that basis, you might have to take it on a case-by-case basis. Warren E. Burger: And then what about the applications for Government employment which requires many, many answers and that is accompanied by a statute making it a felony, to give a false answer. William M. Ward: Well -- Warren E. Burger: For testing that that statute just someway violates the Fifth Amendment? William M. Ward: Of course, if you file a false answer, I think the Court has decided that decision just last month in the -- I mean last fall in the cases and (Inaudible) within this area that we are in. If the privilege against self-incrimination certainly does not protect you against filing a false document, this Court has so held. Warren E. Burger: But it's right to file a false document at many times is there? William M. Ward: Not if it’s a felony to so file it. No, I think this Court held that -- Warren E. Burger: Absent, absent the statute. Is there any inherent right to filing -- William M. Ward: A false document? Warren E. Burger: Make a false answer, any question? William M. Ward: Inherent right to file a false answer? I would say -- no. I would say no. You’ve got 18, 1001 staring in the face no matter anytime you file a document with the national Government. It’s just a felony to file a false document with the National Government. I think as a practical matter anytime you file a false document with any agency of the Federal Government, you got a felony staring in the face. But to the extent going back to your employment provision, to the extent that an employment application again is a document which is directed at all people, which is directed towards everyone, you don’t -- at the threshold meet the problem that you meet in Marchetti-Grosso. This would not be per se a violation of the privilege against self-incrimination. To the extent that anything was in there, any question or answer was required which may incriminate you, then you get into this question of, do you have a right to federal employment and can they compel you to waive the privilege and again, you may have a problem. I don’t profess to be able to specifically answer, but you may have a problem on the facts. But I think this Marchetti-Grosso situation goes one step further because we have a specific, direct finding by this Court that the statutes themselves where aimed at a small class of people for the purposes of getting information to prosecute the small class of people. I think that is settled by Marchetti-Grosso and I think the lower courts have so held. For example, the Fifth Circuit Court of Appeals in Nucio case, vacated a conviction upon a plea guilty on the grounds that protecting integrity the privilege against self-incrimination. The Seventh Circuit Court of Appeals has done the same thing last month. They have held Marchetti-Grosso retroactive. They have held that the harmless error rule doesn’t apply. They attempted to distinguish the Mackey case, but they also have had held that to protect the integrity, the privilege against self-incrimination prosecutions under the statute and land and the basic thrust of it is the rational of Marchetti-Grosso has found in those decisions from this Court. Potter Stewart: Mr. Ward, what was used here, as I understand it were the excise tax returns, not the gambling statute. William M. Ward: That is correct. In order to pay the tax, the tax is paid monthly upon gross receipts. It is not an income tax, it’s an excise tax. In order to pay the tax, you have to file a return monthly. Potter Stewart: Monthly. William M. Ward: Right. Now the reasons for putting these in were two-fold: one and I think this is admitted by the Government, it’s always been admitted by the Government to show that he was a gambler. They had to show he was a gambler. They had to show that he likely source of unreported income. Potter Stewart: Because it was as networth prosecution? William M. Ward: Precisely, and if this Court is held both in Friedberg and Holland that this is an absolute necessity in such a case because they are purely totally, solely circumstantial evidence cases. Now, the prosecutor then went onto say, he needed it for another reason. He needed those figures. He had to show that those figures -- he had to get those figures into evidence and right after these returns are put into evidence, Mr. Harrington then testified from one of his graphs, exhibit 765 showing the total gross receipts from gambling. Now the reason that those total -- that the prosecutor said he needed those total gross receipts from gambling to show that he had a greater income from gambling, than shown in his schedule C-returns. In other words, in evidence in this case was schedule C returns a showed income from “policy” and I think one returns had policy wheel, the man paid his income tax and his wagering income. But the Government argued I have got to show that he had a greater income from gambling than showed on schedule C. So I not only need those wagering tax returns to show that he was a gambler, I need him for the figures. And so he argued to the jury. He so argued to the jury on four different occasions. I think this is -- as far as the importance of these returns are concerned with the Government, I think the prosecutor summing up argument is almost the key here. This was a long trial and all net worth trials are long trials. I think they were over 800 exhibits, pieces of paper put into the evidence in this trial. The reason being is because the key testimony in a net worth trial is the Government’s expert. He has the expert exhibit and of course the foundation has to be laid to support everything in the exhibit. In spite of the fact that there were 800 exhibits or an excess of 800 exhibits and that they key exhibit in the net worth case is the file net worth summary by the prosecutor, that was mentioned to the jury six times and rightfully so you’d expect it. The next amount of time as far as any exhibit was mentioned to the jury was these wagering tax returns. Four different times, the prosecutor came back to these wagering tax returns and one of them in effect was very interested. It was almost a Griffin type case and these are said out in our reply brief. He said to the jury if these wagering tax returns are accurate, if they truly reflect the ins and the outs, then they’re okay, but there is only one man that can tell us. Mr. Mackey. Come up, waive your privilege against self-incrimination and explain this. Potter Stewart: Now, it was the Government's theory that the wage -- the monthly wagering tax returns were accurate and that they were inconsistent with his income tax return or that they were inaccurate and so was his income tax return? William M. Ward: The Government never took that position Mr. Justice Stewart. Potter Stewart: [Voice overlap] did it not? William M. Ward: I don’t know. They simply -- implicit in the jury’s verdict has to be one of two things that didn’t believe the wagering tax returns because the net worth bulge was larger than the wagering tax return. Or implicit in the jury’s verdict, this confusion, confusion that those wagering tax return represented taxable income. Potter Stewart: There was gross receipts? William M. Ward: Right. But see, not being and not taking the stand, Mr. Mackey didn’t have the chance of explaining it. We don’t know for a fact that the jury knew these were gross receipts. In other words, if you add up the wagering tax returns as exhibit 765 did, you find it in enormously greater figure of income from wagering than you did on the scheduled C upon which taxes were paid. It’s within the round of possibility and quite frankly, I personally believe that that’s what the jury found. Potter Stewart: Sure in a long trial was a good defense, you got it before the jury that gross receipts are not the same thing as net income, didn’t you? William M. Ward: We did. But after 43 hours, we have no idea exactly what the jury ultimately did find. Potter Stewart: So far as his occupation, that is he was a gambler by profession or vocation or revocation, what did he put down in his income tax return with respect to his occupation? William M. Ward: In that particular area? I don’t know what else. Quite frankly Mr. Justice, I don’t know what else he put on, but I do know that an income, one place he had in four years, I think just the word policy. And on the 50-year, he had the word policy wheel, plus other -- Potter Stewart: That is source of income? William M. Ward: One of the sources of income, yes. Potter Stewart: Isn’t there a place in the income tax return where you put down -- where you put down your employer if any? William M. Ward: Yes sir. Potter Stewart: As you put down your occupation if any or am I mistaken? William M. Ward: To my knowledge and I know I’m correct in this. I never use the word gambler. He never used the word gambler. Potter Stewart: Remember what he did say? William M. Ward: As far as his occupation is concerned? It could have been insurance. He was a President of two insurance companies and the MW Investment -- I can argue inferentially that he never did because of the argument made by the prosecutor to the jury and show he was a gambler and the argument made to the Seventh Circuit Court of Appeals and the appeal in the original case. The Government is admitted here that the only evidence of gambling that the wagering tax returns and to some extent the word policy or policy wheel in the income tax returns. But again, as to the weight given to that and the argument to the jury, the prosecutor never argued. Never argued that you could find that this man was a gambler because of what he put in his scheduled C’s. Four times the prosecutor argued to the jury, this man is a gambler because of the wagering tax returns and they so argued that in the Seventh Circuit Court of Appeals. So it seems a bit of a late date to come in here and try in a sense to change the facts. And of course, to me, the key aspect to that is the District Judge in the 2255 proceedings. The District Judge in these 2255 proceedings tried this case and when this petition was filed in his opinion, he said this represents a new and serious question. He specifically said in his memorandum opinion that these returns were put in to show a likely source of unreported income. And I think that to me is practically decisive as far as how important these returns were to the Government on a trial, the District Judge in these proceedings considered them extremely important. In its memorandum opinion, in its decision, this case was on the law, not on the facts, but on the law. Byron R. White: Do you have any (Inaudible) William M. Ward: No I think under the Sullivan case Mr. Justice in Candor, I think under the Sullivan case having put something into schedule C, you waived the privilege. As far as schedule C is concerned, I think -- Byron R. White: You say the Government -- schedule C usually requires a person to report his business income, doesn’t it? William M. Ward: Yes, plus his source. Byron R. White: Yes, plus the source and there he can claim any deductions and -- William M. Ward: Yes sir. Byron R. White: Did he? William M. Ward: The ins and outs situation, no sir. He just as far as my recollection is concerned, all he did was -- Byron R. White: State the net figure? William M. Ward: The net figure, the taxable income figure. Byron R. White: So, do you say the Government may require the income tax formally, you didn’t object to the use of that schedule C information? William M. Ward: No, no sir. Byron R. White: You waived your privilege if you had one? William M. Ward: Well, the Sullivan case pretty much teaches you that. The Sullivan case says that the income tax return must be filed and if there is anything specific within the return that would validate -- Byron R. White: Mr. Marchetti-Grosso fits into that or not? William M. Ward: No, no sir because I think there was a particular finding here and this case mentioned Sullivan and distinguished it in Marchetti-Grosso. Byron R. White: So the Government may still in the regular income tax form demand that a person state his business and the source of income? William M. Ward: Except under Sullivan. Byron R. White: Even if it is gambling? William M. Ward: They can demand the source of -- or they can demand the income figures, yes. Sullivan specifically holds and I think Sullivan is still the law that if any source of income information would in any way incriminate you, then you can claim the privilege. Byron R. White: But you didn’t? William M. Ward: In the income tax returns, no sir, no sir. But there is no as I say the income tax returns, there is no statement that he was a gambler, there was this policy and policy wheel. But again as I pointed out in the reply, if this were enough to go to the jury and I personally don’t think it would have been fair comments to go to the jury with these schedule C’s and say that this shows the man is a gambler and has a likely source of unreported income, there are two big insurance companies involved there. Byron R. White: You can normally say they’re like results of other income from whatever we scheduled C that exist. William M. Ward: But he didn’t. He could’ve but he didn’t. Four times he went back to the jury and he said here is your likely source of unreported income. Mr. Downing wants a likely source of unreported income here it is, and another occasion he said one of the witnesses testified that Mr. Mackey never had that kind of money, never had that kind of money. Do you want to see where he had that kind of money? Take a look at the schedules, the wagering tax. Four times he went back to those, four times. I think they were extremely important to the prosecutor and being extremely important to the prosecutor, they were important -- he fought something like two weeks to get these into evidence and even the judge at an evidentiary objection, at an evidentiary objection said they were somewhat inflammatory, didn’t want to leave them in, and then decided to leave them in, not so much into the issue of gambling but they contained figures that the Government said was absolutely necessary to their case. The Gross income figure is just the gambling. Now, if they weren't important, then the O’Connell case would have taken over. There was a specific ruling in the Seventh Circuit Court of Appeals that returns that characterized the man a gambler if not relevant to the case with prejudicial and reversible error. So I just don’t think the Government can have it two ways to have one point convince the judge at the trial level that these are relevant and extremely important and must go in and then on the appellant level hearsay, they weren’t very important, they weren’t very relevant and we didn’t really need them because if that were the case, this case should have been reversed the first time around on the issue of Ricardo. Then we get into the nature of the privilege itself, the transactional testimonial. The Government is argued that because Marchetti-Grosso specifically talked about gamblers, but this is not a gambling prosecution and therefore, the thrust of the decision should not go to this type of a situation. I think the privilege itself, no person in a criminal prosecution should be a witness against themselves answers the question. I think once the privilege is violated and this Court has specifically ruled that the privilege was violated in the Marchetti-Grosso situation. Once the privilege is violated, that taints the evidence. I can’t conceive of it being in use of another prosecution. I can’t conceive of this Court holding or stating that the privilege against self-incrimination can be violated and there are some circumstances in which the evidence could be used in a criminal prosecution against the witness. To me in any event is the beginning and the end of the privilege against self-incrimination. If you go back to the Silverthorne Lumber case, this Court held that the essence of a provision which prohibits the acquisition of evidence is not only that the evidence not be used in court, but that it not be used at all. You get into the Murphy v the Waterfront Commission state, a silver platter sort of a thing where the Court held that if evidence be taken on the state level in violation of a witnesses's privilege against self-incrimination, it may not be used in any manner, in any manner, these are the words of this Court in a criminal prosecution by the Federal Government against the witness. The Gardner case reaffirmed, just I think a year or two ago, reaffirmed the Murphy v Waterfront Commission in that situation and I would like to spend a second with the Gardner case because I think it has some relevance to this case. The Gardner case was a police officer who lost his job because he refused to surrender his privilege against self-incrimination. He wouldn’t sign a waiver of immunity. A year and a half later, this Court decided the Garrity v. New Jersey case said they couldn’t do that to him, couldn’t make the imposition of the penalty costly. He then filed a petition for reinstatement for his job which was denied and the case worked itself up and that this Court ultimately decided that he should get his job back but his privilege was a violated. In other words, in a civil manner, this Court had no problem with making Garrity retroactive to a set of facts that happened a year and a half before where a man had lost his property, his job if you will because of a violations privilege. It just seems to me in a criminal manner, in a criminal case where a man has been convicted in a very important link of the chain of evidence needed to convict is a part of the conviction process that he has a right to a new trial on the same basis that Garrity or Gardner had the right to his job. So as far as this Court I think persistently and continuously held that once the privilege has been violated that the evidence cannot be used in any manner against the witnessed, it is always held, at least I read the case as far as state prosecutions are concerned, and it is always been extremely careful and talking in particularly in retroactivity cases. In talking for example, that the Miranda Rule should be prospectively applied, the Escobedo Rule should be prospectively apply. It always been extremely careful to iterate and reiterate and continue to carve out this exception that where it a shown that a statement is taken from a witness involuntarily and used against him, then he still has the right at anytime to avail himself at any state or federal machinery for bringing this to the attention of the Court and getting the appropriate relief which is exactly what we have done here. I believe, I still have four minutes Mr. Chief Justice. I like to save them if I may. Warren E. Burger: Mr. Zinn. Matthew J. Zinn: Mr. Chief Justice and may it please the Court I should like first to set out some additional facts relating to petitioner’s conviction which we believe are essential to this Court’s resolution of the case. As has been noted, the Government proceeded on the networth method of proof. Under the Government’s proof, petitioner’s networth increased during the prosecution years by more than million dollars, while he and his wife reported taxable income during those years totaling a $143,000.00. Potter Stewart: How many years involved. Matthew J. Zinn: Five years, 1956 through 60 inclusive. Warren E. Burger: About $28,000.00 a year is what he was reporting, but he came out with a million dollars at the end. Matthew J. Zinn: Well, he started out with assets of roughly $360,000.00 and according to the Government's computation had over a million and a half dollars of assets at the end of the prosecution years. But in terms of taxable income that he reported a $143,000.00. The principal issue at the trial did not have to do with gambling, the issue was whether the Government was justified in including in petitioner’s networth, certain assets which petitioner’s acquired in the names of corporations which he controlled, in the names of friends, relatives and even a fictitious persons. It was a long trial. More than 80 witnesses testified and the bulk of the testimony showed that petitioner had furnished the funds for the purchase of assets consisting of securities, real estate, loans and mortgages paying for these assets either in currency or with cashier’s checks. The largest transaction and which is typical except for the dollars involved related to petitioners acquisition of stock in a fire insurance company. He first paid $50,000.00 in currency with instructions that the stock be issued in the name of one of the corporations which he control. Later, he paid an additional $98,000.00 in currency for the purchase of additional shares in the name of the second company that he controlled, and still later, he paid $15,000.00 in currency for additional shares. Well, this was the largest investment he made during the prosecution years. The Government’s proof showed that on literally dozens of occasions, he purchased assets using cash or cashier’s checks. The largest of the companies which petitioner controlled was the Gibraltar Industrial Life Insurance Company of which he was Chairman of the Board. Petitioner’s basic contention at the trial in this case was that the assets he purchased and in most instances had registered in the name of Gibraltar actually with the property of Gibraltar and therefore could not be included in his net worth, but the income tax returns that Gibraltar filed showed that the corporation operated at a loss during the prosecution years and did not have sufficient capital to acquire the assets which petitioner paid for during those years. Petitioner’s sister was Gibraltar’s treasurer. She testified on direct examination by the Government at Gibraltar’s books and records reflected all receipts of that company. On cross examination by defense counsel, she changed her testimony and explained that not all receipts had been recorded. Additional cash was available to Gibraltar she said because insurance premiums paid in cash by policy holders were not taxable and therefore where not recorded, while this might explain why the receipts were not included on Gibraltar’s income tax returns. It could not explain the absence of a showing of these receipts on the books and records of Gibraltar and on the reports which Gibraltar was required to file annually with the department of insurance of the State of Indiana. And in this connection, I’d like stress one point that while the investment which petitioner said belonged to Gibraltar but which were unrecorded on its books and records were paid for either in currency or cashier’s checks, that corporation’s expenses were with rare exception paid for by regular bank check. This then in brief compass was the Government’s proof that petitioner's net worth has increased during the prosecution years by substantially more than can be accounted for by the taxable income reported on his returns. In addition, it was the Government’s obligation under the net worth method to show a likely source of additional taxable income that could account for the net worth increase. To this end the Government introduced into evidence, petitioner's income tax returns for 1956 to 1960, which show that certain of his income came from being a “policy operator” and in one instance from a “policy wheel”. I’d like to correct one factual statement that Mr. Ward made and that was that defense counsel did not object to the introduction into evidence of the schedule C forms. He did object on the grounds of prejudice and the objection was overruled and the income tax returns were admitted. A second point omitted from Mr. Ward’s statement was that in addition to the schedule C forms which indicated that petitioner was in the policy business, there was the testimony of an Internal Revenue Service agent that in the course of his investigation, petitioner admitted that he was in the gambling business. The Government also sought to introduce petitioners wagering tax forms for the 60-month period covered by the indictment. Defense counsel objected and again this is most important, the objection according to Mr. Ward was based on the ground that the wagering tax forms were prejudicial, but it was also based on the ground that the information disclosed in the forms could be computed by reference to the income tax returns. That is that they showed nothing more than the income tax returns themselves. The Government attempted to introduce the wagering tax forms; first, during the course of the testimony of the first witness who had prepared petitioner’s income tax returns. These forms were not mentioned again until more than 60 witnesses had testified regarding petitioner's cash transactions, and this was during the course of testimony of petitioner’s secretary. On both occasions, the Court reserved ruling on the ground that the Government had not shown that the forms were not merely cumulative of the information that appeared in the income tax returns, not until the Government’s last witness testified was there further mentioned of the wagering tax forms. Defense counsel again objected to admission of the forms on the ground both that they were prejudicial and cumulative of what was in the income tax returns. Now, the forms which are reproduced in the appendix which is on file with this Court, show have an entry and I am reading form page 41 of the appendix, the gross amount of wagers accepted during the month -- page 41 Mr. Justice. Potter Stewart: That is not including layoffs. Matthew J. Zinn: That’s right. They were involved here though, and so far as I know, well, we do not have all the forms reproduced here. I am not aware of any layoff so that that was an issue in the case. So, those figures if you add up, if you take 12 months wagering tax forms and add up the gross receipts figures on those 12 forms presumably, that should be the figure that should go into gross receipts on schedule C of the income tax returns, gross receipts and that’s the line reads, gross receipts on schedule C. Potter Stewart: What is this schedule C, it is what? Matthew J. Zinn: Income from a business or profession, it is filed by an individual proprietor. Potter Stewart: Self employed? Matthew J. Zinn: Yes, someone who is employed wouldn’t have to bother with that form. Warren E. Burger: Mr. Ward, at least I thought I heard him say that this form that you are referring to now, the tax on wagering is a scheme of Federal Government from the sole purpose of forcing people to disclose their illegal activities. Did I hear him correctly well? Matthew J. Zinn: I believe you did Mr. Chief Justice and I hope to –- Warren E. Burger: The tax is 10% of the gross, isn’t it? Matthew J. Zinn: Yes sir. This is the point I am trying to make. Warren E. Burger: This is something it looks something like a reverent measure I should think. Matthew J. Zinn: The Court said in Marchetti and Grosso that this was a revenue measure, but that because of the inter relationship of the wagering tax information that had to be furnished and the comprehensive scheme of federal and states statutes prohibiting gambling and gambling related activities that the privilege would be a complete defense if the forms were not filed. I would like though to make the point because I don’t think it's clear as to what the income tax returns showed because I think that this is critical to this case. If I were preparing an income tax return and I have a wagering tax forms in front of me, I would take the 12 forms and I would add up the figures from each one and put it down in the gross receipts line on the income tax return. That is not what was done here. The figure that appears on the income tax returns is substantially smaller, the gross receipts figure that is substantially smaller than the sum of any 12 months wagering tax forms. But the reason for defense counsel’s objection was not only the prejudice, it was that it was cumulative and the reason for this is that on the income tax return in addition to the gross receipts figure, there is a space for deductions and one of the deductions that petitioner claimed was a deduction for the excise taxes paid. In other words, the sum of the excise taxes paid for the 12-month period appeared as a deduction on the income tax return. And basically, the argument that was made by petitioner’s counsel at the trial was, well the jury can compute this itself. All it has to do is to take the excise tax deduction again which on this form if you add up 12 forms, add up the deductions that show on 12 forms which is 10% of the gross. That figure appeared on the income tax return as a deduction. So defense counsel’s arguments as to that it didn’t shown anything more was, let the jury and multiply the excise tax deduction by 10 and then they themselves can see what the gross -- Potter Stewart: Is this deducted? Matthew J. Zinn: Yes it is Mr. Justice. Potter Stewart: The 10% of excise tax -- Matthew J. Zinn: Yes, it is and it was -- Potter Stewart: -- and gambling or it is deductible from your income in computing your income capacity. Matthew J. Zinn: It is the cost of doing business. It is a cost of doing business. And it is deductible and it was claimed. And so, it wasn’t only the prejudice ground that the defense counsel objected on. He said it was cumulative, let the jury multiply by 10 and then they will know that the gross receipts figure which was only a fraction of the total gross receipts shown on the wagering tax forms was substantially larger. Warren E. Burger: Could you have made your case if you had merely focused on the deduction taken on the general tax return? Matthew J. Zinn: I think very frankly Mr. Chief Justice. I am speaking as a matter of hind side. I think that the summary form to which Mr. Ward referred earlier, this form 765 which is a summary exhibit of all the wagering tax forms could have been computed by reference to the income tax returns alone. Warren E. Burger: Is ordinary, is regular when you speak of income tax returns, you’re distinguishing -- Matthew J. Zinn: From the wagering tax forms, the schedule C and we have asked the Government prosecutor why did you pushed to put this in. He said why should not I push, Louis and Cargo was on the books and this was good evidence, and it highlighted the opportunities that a gambler has to since he is always dealing in cash to hide income, but we had here evidence that he was a gambler from the income tax returns. The evidence of the revenue agent and also the fact that this could have been computed admittedly not as vividly for the jury by reference to the income tax returns. That is one of the grounds on which defense counsel objected to admission of the evidence on trial. Potter Stewart: And it could have been computed by -- Matthew J. Zinn: Multiplying the excise tax deduction by 10 and subtracting from the product of that multiplication, the figure that was shown as gross receipts on the income tax returns. Now, that wouldn’t have accounted for all the income that was missing. A question was asked if Mr. Ward is the Government’s position that the wagering tax forms are right or wrong. Or we really do not know whether they were right or wrong. They didn’t account for $4,000.00 a week of cash which is about what it works out was missing from petitioner’s income tax returns, roughly $200,000.00 a year. We do not know if the net figure was right or not, but we didn’t have to prove whether it was right. All we have to show was a likely source of income. Potter Stewart: Right or wrong, however, what you are telling us is that the wagering tax returns do show a much higher annual gross receipts than he reported as just total annual gross receipts for anyone with these taxable years. Matthew J. Zinn: That is right, but they all -- Potter Stewart: But he did use this or at least was usable as a part of your substantive case. Matthew J. Zinn: That’s right. Potter Stewart: Much more than just showing his profession as a gambler? Matthew J. Zinn: Yes, but the fact is Mr. Justice Stewart that defense counsel had a point in saying this could have been computed by multiplying the excise tax deduction which was also on the income tax returns by 10. And you would have again had this inflated gross receipts figure. The two just weren't consistent and there were other deductions claimed on the income tax returns. I have examined those. Mr. Justice White, I believe you asked the question regarding that. He claims deductions for cost of supplies and other deductions, but he only showed the net figure in the gross receipts column on the schedule C. Speaker: Supposing Marchetti and Grosso been on the books turning this prosecution, (Inaudible) Matthew J. Zinn: I think we’d still be given Mr. Justice Harlan. Our position is that at the time that these wagering tax forms were filed, there was no certainty that they would prove a significant link in the chain of evidence tending to convict petitioner of income tax evasion. And we say this --Mr. Ward has referred to Waterfront -- the Murphy and Waterfront Commission case and the very broad language that was used in that case regarding any use of testimony compelled in violation of the privilege. And I would like to put a hypothetical to the court regarding Murphy and Waterfront Commission which shows we think despite the broad language that there are some limits, let us suppose that a commission is convened to examine bribery by public officials. And I am called to testify before this commission today, October 21, and I testify that after invoking my privilege and having my claim rejected and so forth that on March 15th of this year, I accepted a $5,000.00 bribe for engaging in some nefarious activity in connection with my employment. Now, next, April 15 comes and I have to file my income tax return. If I don’t include that $5,000.00 as an income, I would suggest, that Murphy and the Waterfront Commission doesn’t necessarily resolved the question whether the privilege in that case would bar the introduction of my prior testimony because the theme running through this Court’s decision in the self-incrimination area has been that unless it will surely proved a significant link in the chain of evidence tending to convict, the privilege shall not apply. And so we say that even in the case you posited Mr. Justice, we think we’d be here. I would like at this -- Potter Stewart: In other words, became self-incriminatory only because of a later act which said it was a wrongful act. Matthew J. Zinn: That is correct. We couldn’t have gotten these in under Ricardo if the gross receipts figure and the tax deduction figures tide in with the income tax returns because then I think the argument as to prejudice and again, this would be in the discretion of the trial judge. He has to weigh the possible effect on the jury of the disclosure of gambling against the additional contribution that the evidence might make. So I think we would have had a very difficult time getting in the way using tax forms, had they been consistent with the later filed income tax returns. It was only the later act of showing a smaller gross receipts figure on the income tax returns that made the wagering tax forms at all relevant in this trial. Thurgood Marshall: But Mr. Zinn, if you haven’t filed those, it would never put on his income tax. He would never claimed the tax he paid on his income tax. Matthew J. Zinn: If he hadn’t filed the wagering tax forms at all? Thurgood Marshall: Yes. Matthew J. Zinn: I am not sure I understand the point of the question. Thurgood Marshall: Well, I am just saying that on his income tax, he claimed deduction. Matthew J. Zinn: Yes. Thurgood Marshall: For the wagering tax, he paid. Matthew J. Zinn: That’s right. Thurgood Marshall: Well, I would assume if he had not filed and paid the wagering tax, he wouldn’t have made that deduction. I think that’s obvious, isn’t it? Matthew J. Zinn: Right, I assume he would not have claimed the deduction. Thurgood Marshall: Well, can you go along with the thought and stretch it that far that it was all triggered by the wagering tax? Matthew J. Zinn: I do not think that is right Mr. Justice. It seems to me that nothing was triggered by the wagering tax forms. The last one was filed for any given year. Let us say 1956 on January 31, 1957 on or before that date and his income tax return was not filed until later and I don’t think at that point that they triggered anything. Looking at it on January 31st of any given year with respect to the prior year, I don’t think they triggered anything. Thurgood Marshall: Well assuming he did not take the deduction which I think is an assumption against fact and assume that he didn’t, he should then have been able to been able to put the wagering tax? Matthew J. Zinn: That he did not claim the deduction? Thurgood Marshall: Yes. Matthew J. Zinn: I think in that case -- I think first of all, let me just say I think that is an extremely unlikely hypothetical that you wouldn’t -- Thurgood Marshall: Well you did not answer that he still would need it for the gross receipts. Matthew J. Zinn: For the gross receipts, if he did not claim the deduction, yes. But that’s not this case. Thurgood Marshall: Don’t get too far and get these two tangled up together, that’s what I am worried about. Matthew J. Zinn: Well, we don’t think that -- Thurgood Marshall: That is one of the same piece I think that there is anything by getting Grosso on the wagering thing and you drag it over into the income tax. You might be getting some fruits. Matthew J. Zinn: I would say on that issue Mr. Justice Marshall that what the court was concerned about in Marchetti and Grosso was the comprehensive scheme of federal and state gambling statutes, anti-gambling statutes, and the fact that possible disclosures merely this form showing gross receipts and a deduction would be enough to incriminate somebody for violations of some of these statutes, but that’s not this case. These forms could not incriminate anybody of income tax evasion unless they were not consistent with the later filed income tax returns, and I think the proper way to look at it, is to say what was the situation on January 31 of any year? Warren E. Burger: Mr. Zinn, let me be sure if I got one of your responses to Justice Marshall clear. If he had not filed the wagering tax return, could he have taken the deduction of that 10% each year? Matthew J. Zinn: Of course not, of course not. Warren E. Burger: So he got a very substantial benefit out of filing these wagering tax returns? Matthew J. Zinn: In terms of income tax deduction? He did. I supposed he would argue that he subjected himself to self-incrimination for federal and state anti-gambling statute, but this is not this case Mr. Chief Justice. In the few minutes I have remaining I would like to turn briefly -- Speaker: Do you happen to take (Inaudible) Matthew J. Zinn: In Marchetti and Grosso? Speaker: Yes. Matthew J. Zinn: No Mr. Justice, we’re not. We’re saying that it simply doesn’t extend to this case that the premises on which Marchetti-Grosso was decided was this conflict between the privilege against self-incrimination on the one hand, and the comprehensive scheme of federal and state anti-gambling statutes on the other hand. And we’re not involved with this comprehensive scheme in this case. We’re involved with income tax evasion. And we say that Marchetti-Grosso's rationale does not extend to this case because at the time, the wagering tax forms were filed, it could not be said as it could be said in Marchetti and Grosso, that they would surely prove a significant link in the chain of evidence tending to convict petitioner of income tax evasion. It was only the later act of filing an inconsistent income tax return that made these forms at all relevant in this prosecution. And we say despite the broad language in Murphy and the Waterfront Commission regarding any use of compelled testimony, that question is an open one and warrants serious consideration by this Court. Speaker: Putting it another way, what you are saying is that retroactivity in Marchetti and Grosso who was not involved (Inaudible) Matthew J. Zinn: That is one of our arguments Mr. Justice Harlan. Potter Stewart: This branch we argument, assuming that they retroactive, still they are inapplicable to this case? Matthew J. Zinn: Yes, that is correct. Now, I would like to spend my last five minutes on the retroactive aspect and I would like to turn first, if I may to the test that was proposed by Mr. Justice Harlan in his dissenting opinion in the Desist case and we submit that under that test, there would be no basis for retroactivity in this case. We say first but since this is a collateral proceeding under section 2255, the first inquiry that must be made is whether this rule of Marchetti-Grosso is one that improves the fact finding process and it seems clear to us under Mr. Justice Harlan’s test that it does quite the contrary. It worsens the fact finding process because it excludes evidence that is plainly trustworthy and plainly reliable. Second, Mr. Justice Harlan would ask is this a new rule or an old rule? And we think contrary to what Mr. Ward has said earlier that it is clearly a new rule. There was a time when Lewis and Kahriger were on the books, when this case would not be here because it would be clear that the wagering tax forms were admissible. Finally, Mr. Justice Harlan would say we have to look at the law that existed at the time the conviction became final in this case. And the conviction became final in this case on October 11, 1965, when this Court denied petitioner's petition for certiorari on direct appeal. No petition for rehearing was filed from that denial and Albertson was not decided until November 15th, 1965. So that even if one could argue that the viability of Lewis and Kahriger was placed in question by Albertson. Petitioner would not be entitled to the benefit of Marchetti-Grosso under Mr. Justice Harlan’s analysis. Speaker: You’re talking about this is? Matthew J. Zinn: Yes sir, I am. And under your analysis -- Speaker: (Inaudible) Matthew J. Zinn: Yes sir. Speaker: Nobody else tried? Matthew J. Zinn: Yes sir. Speaker: And I didn’t decided (Inaudible) Matthew J. Zinn: No sir, but I apply the test that you say you would apply, if you had more than one vote and under that test, it seems clear to us that Marchetti-Grosso would not be retroactive. That’s only preliminary. I might add that we think the result is the same under the three factor test which this Court has followed beginning with the link letter case. The purpose of Marchetti-Grosso is to protect the constitutional privilege against the statutory system jeopardizing it. That statutory system is not involved in this case. Petitioner has not been prosecuted for any violation of a federal or state anti-gambling statute. Potter Stewart: Would you say, I missed what you said, the purpose was to protect something -- Matthew J. Zinn: The constitutional privilege against the statutory system that jeopardizes it and that statutory system is not involved in this case. Warren E. Burger: You are referring to the requirement for example, for registering a gun or I see that one case. Matthew J. Zinn: In this case, the comprehensive federal and state anti-gambling provisions are just not involved. And furthermore to the extent that the privilege against self-incrimination rests on notions of an individual’s right of privacy. The invasion of that privacy cannot now be restored by according Marchetti-Grosso retroactive effect. Finally, and most important in terms of the purpose criteria in which this Court has stressed, the Marchetti-Grosso rule does not go to the integrity of the fact finding process. We think the evidence here is far more reliable than the evidence involved in Johnson against New Jersey which held that Miranda was not retroactive. The plain fact is that nobody files wagering tax forms who does not have to file them and nobody puts a figure down on a wagering tax form for gross receipts that's higher than it has to be. We think it is clear that the -- at the very minimum petitioner had gross receipts from wagering as shown on his wagering tax forms. We would suggest to the Court that the trustworthiness and reliability of the evidence here is almost as great as it was in Linkletter and Desist. Petitioner attempts to avoid the rule of the Johnson case which we think is controlling and that of Tehan and Shott on the ground that he comes within the holding of Johnson and Deno. In short that this is a coerce confession case. We think this argument was adequately answered by the court below. I’d like to quote briefly from the first full paragraph on page 53 of the appendix. Defendant contends however that the wagering tax returns constitute coerce confessions since they were filed under the compulsion of a legal command and that retroactivity follows automatically once the question is so characterized, but the compulsion which turns interrogation into a violation of the privilege against self-incrimination is not the same as the coercion and intimidation which makes a confession involuntary and a denial of Due Process. And at this point, the court cited Davis v. North Carolina which was decided on the same day as Johnson and showed precisely what the court was pointing out but not every self-incrimination case is a coerce confession case and this is not a coerce confession case under any standards that this Court has applied. Speaker: Putting the retroactivity aside and what's your argument on the merits so to speak is, this itself is (Inaudible) Matthew J. Zinn: I am not sure (Voice Overlap) Speaker: This evidence is governed by the Sullivan rationale or out of Marchetti and Grosso? Matthew J. Zinn: I would like to say that completely Mr. Justice Harlan, I don’t quite think I can, except to the extent that I can show that the gross receipts figure could have been computed. The gross receipts figure from wagers could have been computed by reference to the income tax returns. To that extent to Sullivan is dispositive. Warren E. Burger: Well, is that part of the harmless error? Matthew J. Zinn: Yes it is Mr. Chief Justice. Warren E. Burger: Independent of Sullivan. Matthew J. Zinn: Yes, we are arguing harmless error here and at least that the court should set the standards for harmless error if it does not decide the case on one of the other two grounds that we have urged in our brief. If I may and if the Court will indulge me for one more minute, I would like to finish on retroactivity and I won’t take long. Warren E. Burger: You can march one more minute to -- Matthew J. Zinn: As far as the second factor reliance, it seems to us clear that the Government could reasonably have relied on Lewis and Kahriger. They were still on the books when petitioner was tried and Albertson was decided almost two years after the trial ended. In fact, petitioner can’t make too much of an argument regarding reliance because he himself relies on Lewis and Kahriger to avoid the claim of waiver in this case. He says he didn’t raise the privilege against self-incrimination because he did not know that he had it. And so there can’t be any serious question about the reliance prong of the three factor test. Finally, with regard to the burden on the administration of justice, it must be considered if Marchetti-Grosso is held retroactive that collateral attacks maybe brought not only with respect to convictions failing to filed wagering tax forms. Not only with respect to convictions of income tax evasion like petitioner's conviction in which wagering tax forms were introduced into evidence, but also as to convictions under the comprehensive prohibitory scheme both federal and state outlawing gambling and gambling related activities which this Court described in Marchetti-Grosso. And it seems to us that in Mr. Justice Harlan’s opinion, one of the reasons that he rejected the restrictions on use test which the Government urged in Marchetti-Grosso was the difficulty that states would have in showing that prosecutions under federal and state law for gambling, that states and the federal Government would have would be -- they could not show that they were untainted because of the filing of the wagering tax forms. Here if this Court holds to Marchetti-Grosso retroactive, that issue will be raised with respect to every conviction for violation of federal and state gambling statutes going all the way back to 1951, in cases in which wagering tax forms were filed. We urge therefore that the judgment of the Court of Appeals be affirmed. Speaker: (Inaudible) Matthew J. Zinn: Yes, Mr. Justice. It has been served and he is out on parole at this point. But I think your question points up really another aspect of the retroactivity of Marchetti-Grosso because one of the issues that is involved in this case is Mr. Mackey’s civil income tax liability and if this Court were to affirm the judgment below under settled principles of collateral estoppal, Mr. Mackey would be liable for tax, penalties and interests amounting to about a million-and-a-half dollars. Warren E. Burger: Your time is now enlarged to five minutes. William M. Ward: Mr. Chief Justice, on many occasions, the Assistant Solicitor General said that is not the case and that is quite true. The case he argued on the facts here is not the case that existed in the criminal trial. He is arguing basically is we should have won. He is arguing that the court was wrong, that this evidence should not come in, there are objections to the evidence at the time we made it were proper and correct, and of course I agree with him. The problem is we lost the argument and the evidence was admitted against us, and it was used against us. And I think to the effect that it was used against us, I refer the court to page 16 and 17 of our reply with a prosecutor having gotten that evidence in, relied on it, immensely before the jury. It was the second most important part of his argument to the jury. This is what we are talking about. How did this affect the jury out 43 hours for five days? That is exactly what we are talking about. Warren E. Burger: You have mentioned that I think three times now, is there anything remarkable about taking not many days to review a case that has 865 exhibits? William M. Ward: I think so, yes sir. I think that is a long time for a jury to be out, yes sir. I think it is a very long time for the jury to (Voice Overlap). Warren E. Burger: And how do you read all that materials in much less time? William M. Ward: Well, I question how much they really - they might have read it a quite number and quite a lot of it was foundation evidence, evidence that didn’t necessarily had to be read but had to be in for the purposes of providing the foundation for the exhibit evidence. So I think that is a long time to be out, yes sir. As far as the million dollar net worth case, I am not too sure it’s before this Court but I would like to refer in the large appendix that was filed, government’s exhibit 800 property held in the name of Gibraltar Industrial Life Insurance Company. In other words, I don't take too much time on this, approximately $1 million in assets, held in the names of regulated insurance companies, under the control of the director of insurance in the State of Indiana makes up that bulge. That is one of the big arguments in the case, but that was an argument in the case of the original level and would be on retrial. It certainly has nothing to do with the privilege against self-incrimination which is before this Court right now. On the harmless error doctrine, I do want to make this point. I want to make it strongly. The constitution says, the Fifth Amendment says, no person shall be a witness against himself on a criminal prosecution. It does not say that no person shall be a witness against himself in a criminal prosecution except he can be compelled to have testimony admitted against him, if later is found to be harmless error. The harmless error in the constitutional rulings, the Harrington and the Chapman situations usually at least as I read them come up on Fourth Amendment situations or confrontation situations. The constitution does not prohibit searches and seizures. It prohibits unreasonable searches and seizures and the constitution requires confrontation but it doesn’t necessarily, specifically prohibit evidence which would go in, in a trial without confrontation. These rules have exclusion or judge made rules and I think there can be a further emendation on these of harmless error, but the constitution specifically says, no person shall be a witness against himself in a criminal proceeding and Mr. Mackey was a witness against himself in a criminal proceeding. Thurgood Marshall: But Mr. Ward, what about the claim or the deduction that was legitimately an evidence, right? William M. Ward: Well, that was the claim I believe of the Mr. Mackey’s defense lawyer at trial that all of the evidence -- Thurgood Marshall: No, maybe he made a specific with -- in his return, you said -- William M. Ward: Are we talking about the wagering tax return Mr. Justice or the -- Thurgood Marshall: Income tax. William M. Ward: Income tax return. Thurgood Marshall: He said that I pay the tax for wages. William M. Ward: Correct. Thurgood Marshall: And all you have to do is one part of a 10, and you got to figure out. William M. Ward: That is what the defense lawyer argued. That is -- Thurgood Marshall: Do you find any fault with that? William M. Ward: I think you should have wanted at the time, yes, but having lost it having lost the argument. Thurgood Marshall: I am not saying it lost. But if you pay a 10%, if $1.00 is 10% to $10.00, then if I pay $1.00 as a 10% tax, I earn him $10.00. So once you put that in this tax return, there was no coercion there was. William M. Ward: In the wagering tax return? Thurgood Marshall: No sir. William M. Ward: In the income -- no, there was no coercion there. That is correct. Thurgood Marshall: And wouldn't it be proper for the prosecutor to argue to the jury you quote the statute, this is what it means, we multiply it by 10 and we have got that much of admitted gross income. William M. Ward: He could have, yes. But he didn’t. That’s why I say the case as it existed below -- Thurgood Marshall: This is not just harmless error -- William M. Ward: No, I think not because I think that you cannot have a person testify against himself. The only thing I can rely on Mr. Justice is the prosecutor’s actions in the court below. He denied that argument. He told the judge that that was not a valid argument. He told the judge he absolutely needed these figures from these returns and the judge agreed with him. The judge agreed with them, said these returns must go in and then he argued to the jury from these returns. I can only argue the cases that happened below. These were used and they were used very violently against the petitioner. Warren E. Burger: But at that time, there was no objections made to the introduction of the wagering tax forms on the Fifth Amendment grounds, is that correct? William M. Ward: That is correct Your Honor. I think the Solicitor General, as far as I understand is the man on this point now. They haven’t raised the question of waive. They waived it and raised it in the Seventh Circuit but they necessarily have not raised that here. Of course, our position is we had no privilege. Kahriger and Lewis had taken that privilege away. It wasn’t a question of something we didn’t know, it isn't a question of something that the -- on the state -- we had no privilege. We had no privilege. Warren E. Burger: But you have one now, you think? William M. Ward: Yes, yes. I again, I just go back to the fact that I think Marchetti-Grosso righted a wrong. Kahriger and Lewis were bad long. Marchetti-Grosso so held. Speaker: Are the summations part of the record? William M. Ward: Yes sir, yes sir. The parts that I thought were important are in the reply put on the (Inaudible) in the reply. The full summations will be found in volume four of the appellant’s appendix in the original trial which was filed in this Court when I filed the petition for certiorari. Warren E. Burger: Thank you gentlemen. The case is submitted.

William H. Rehnquist: We'll hear argument next in No. 92-6073, Richard Lyle Austin v. the United States. Mr. Johnson. Richard L. Johnson: Mr. Chief Justice, and may it please the Court: The issue in this case is whether the Eighth Amendment and specifically the Excessive Fines Clause applies to the concept of... applies to the civil forfeiture under 21 U.S.C., section 881(a)(4) and (a)(7). Mr. Richard Lyle Austin is the owner of the Garretson Body Shop and also the 1972 mobile home that were seized by the Government under the... these appropriate statutes. The facts of the case show that he transferred 2 grams of cocaine to someone in the body shop, and that he obtained this from the mobile home. A subsequent search of the mobile home and body shop indicated there were small amounts of cocaine, some paraphernalia, and some small amounts of marijuana. Mr. Austin pled guilty in State court. He was sentenced to 7 years. The Government seized his mobile home and his body shop, which was his livelihood, and he had been in the auto body shop for about 25 years. The affidavit in the record indicates he intended to return to that job, that type of living, the body-shop living, when he got out of prison. The district court granted summary judgment. The court of appeals reluctantly affirmed indicating that the technical legal distinctions regarding in personam and in rem prohibited it from reaching the issue of the Eighth Amendment applicability. It also indicated that clear court decisions by this Court and other courts do not require proportionality in the civil proceedings for the forfeiture of property. I want to make three points in this oral argument. First is that where the Government stands to gain monetarily the Excessive Fines Clause should apply and Eighth Amendment proportionality should apply. Secondly, the in rem fiction shouldn't bar the application of the excessive fines/proportionality analysis when the civil forfeitures are quasi-criminal or punishment in actual character. Thirdly, under this Court's decisions in Halper and Kennedy v. Mendoza-Martinez, those tests actually show that this civil forfeiture is punishment. First of all, regarding the first point, the Court's decision in Browning v. Ferris provides a basis for applying the Eighth Amendment Excessive Fines Clause to civil actions and to forfeitures. William H. Rehnquist: I thought we rejected the application there. Richard L. Johnson: You indicated that you rejected the application to actions between private parties. You left open the possibility that when the Government is involved, that the Excessive Fines Clause could also be applicable. And, in fact, you suggested in, I think, a footnote quoting Halper that it might give rise to the Eighth Amendment analysis when the Government stood to gain punitive damages. And in Justice O'Connor's concurring and dissenting opinion, there was a substantial analysis of the historical development of the Excessive Fines Clause and the fact that fines and forfeitures are equivalent, and that, in fact, the Eighth Amendment should apply to civil actions. Your quote in Browning v. Ferris regarding the court of Vermont also indicated... the Supreme Court of Vermont also indicated that in certain circumstances you felt that the Excessive Fines Clause or the Eighth Amendment could be applicable. In your case Harmelin v. Michigan, Justice Scalia's footnote also indicated that it makes sense to scrutinize governmental action more closely when the state stands to benefit. It's clear that under 21 U.S.C. 881(a)(4) and (a)(7), the Government has stood to benefit. We cite in our brief an article from Newsweek which indicates that since 1985 the Government has obtained about $2.6 billion through this forfeiture proceeding. There's also a quote by the Director of the Asset Forfeiture Branch of the Attorney General's Office. It says that civil forfeiture is the goose that laid the golden egg. There's another quote also that we indicate from a American Criminal Law Review article in which it indicates that in August of 1990, the U.S. Attorney General warned U.S. attorneys that the Department was far short of its projected $470 million in forfeiture deposits and urged them to increase the efforts in order to make the budget goal during fiscal year 1990. And this was in August of 1990, and Mr. Austin's property-- Byron R. White: What does this prove? Richard L. Johnson: --Well, it shows I think that there should be some sort of check on the Government, just as Justice Scalia says it makes sense to scrutinize Government actions more closely. What it indicates is that there is a possibility for overreaching. William H. Rehnquist: And so, the Constitution automatically erects a shield against it? Richard L. Johnson: I think that the Constitution protects individuals from Government overreaching if that happens, if there's a possibility of it. And there is the possibility of it under this forfeiture statute. William H. Rehnquist: Well, what do you do with a case like Calero-Toledo which says that even an innocent owner... and no one contends, I take it, that your client is innocent. Richard L. Johnson: No. William H. Rehnquist: Even an innocent owner can... the property can be taken under traditional forfeiture law. Richard L. Johnson: Calero-Toledo needs to be distinguished and possibly even looked at again I think. Number one, in-- William H. Rehnquist: Well, what's the matter with it? It always struck me as a perfectly good case. Richard L. Johnson: --Well, Calero-Toledo, the Eighth Amendment wasn't raised. That would be one point. Secondly, although Calero-Toledo indicates, as you said, that in rem forfeiture really shouldn't deal with the guilt or innocence of the owner, in fact, it does establish an innocent owner exception. And thirdly, forfeitures at the time of Calero-Toledo weren't the same as they are now. The forfeitures that the Government is having under 21 U.S.C. 881 (a)(4) and (a)(7) are far in excess of what was happening back at the time of Calero-Toledo. Antonin Scalia: What difference does it make how much money you're talking about if it's money being taken from an innocent person? How can disproportionality have any meaning once you acknowledge that the car or the ship or the facility that belongs to a totally innocent person may be taken? Even if it's only worth $100, that's vastly disproportionate to his guilt. I assume proportionality means proportional to guilt. Richard L. Johnson: Correct. Antonin Scalia: But all these in rem things at common law could be imposed against a totally innocent person. I think... doesn't that conclusively establish that there's no proportionality requirement for in rem takings? Richard L. Johnson: I think that in rem forfeiture under common law and as... at the time that the Framers knew it is different than the forfeiture that we're experiencing today. I think that the cases established that in rem forfeiture at that time was against ships, dealt with piracy, dealt with violations of the customs laws-- Antonin Scalia: Cars. Richard L. Johnson: --Which are instrumentalities... which can be instrumentalities of drug use, but when it comes to someone's home or in this case the business, these were incidental, in effect, to the drug use. In other words, he could have transferred this drug use anywhere, outside, in somebody's place. Byron R. White: Well, what if he did... what if the defendant just did business out of his house, the drug business out of his house? Richard L. Johnson: If there was... if the house was used specifically for that purpose, if it was... if there was a history-- Byron R. White: Then no proportionality? Richard L. Johnson: --Then there should be proportionality, but it should be analyzed under a series of factors. That's what proportionality is as we advocate it. There should be many factors or several factors that are applied, factors such as the circuit courts have applied in criminal forfeiture cases in order to determine whether all of the property should be forfeited, whether some of it should be forfeited, or whether none of it should be. Sandra Day O'Connor: I thought this particular statute does provide a defense for innocent owners, does it not? Richard L. Johnson: Yes, it does. Sandra Day O'Connor: I mean, we're dealing here with what could be characterized as a punitive sanction. Richard L. Johnson: I believe that's true, yes. I think that's an example of why it is a punitive sanction because you do have the innocent owner defenses in both (a)(4) and (a)(7). We are asking that the Court apply proportionality analysis to someone who is not innocent like Mr. Austin. Antonin Scalia: You mean, if... let's assume you have a good, old... the most old-fashioned old-fashioned in rem forfeiture statute around. You forfeit the ship if it's used for contraband. If Congress should enact a... an amendment to that statute that says, however, if the ship belongs to an innocent person who didn't know it was being used for contraband, it shall not be forfeited. That would convert it to no longer a classic in rem forfeiture and thereafter it would be subject to a proportionality requirement. Richard L. Johnson: I think that... first of all, I think Congress in a sense has enacted that type of law under (a)(4). Antonin Scalia: I understand, but I understood your argument to be that since an innocent person gets off in this one, we should impose the proportionality requirement because that renders it punishment, whereas the ordinary in rem thing was not punishment. Richard L. Johnson: That's correct. Yes, I believe-- Antonin Scalia: So, your answer to my hypothetical would be yes, that if Congress got tender-hearted and said, well, let's make an exception to our traditional in rem forfeiture of pirate ships and we'll say if the owner of the ship was innocent of the piracy, we won't forfeit it. That would convert it suddenly to a punishment, and if it was just a small-time pirate, you wouldn't be able to take the ship even from the pirate-- Richard L. Johnson: --Well, I think that would depend on-- Antonin Scalia: --because that would be too much punishment. Richard L. Johnson: --It could depend on the cases. I guess it depends on the facts of the particular case. That's what I would say. Antonin Scalia: It seems to me it's in rem whether or not you decide to let the innocent person off. I don't see how that makes a difference. Richard L. Johnson: It can be in rem, but it can also be punishment. Sandra Day O'Connor: Well, is it punishment if the owner has not engaged in punishable misconduct? Richard L. Johnson: It would-- Sandra Day O'Connor: I mean, how-- Richard L. Johnson: --It certainly would be punishment then, yes. Obviously-- Sandra Day O'Connor: --If the owner has not engaged in punishable conduct. Richard L. Johnson: --If the owner has not engaged in punishable conduct-- Sandra Day O'Connor: Then how would that be punishment? Richard L. Johnson: --Well, if the owner had not done anything wrong and yet had the property seized and forfeited, then obviously-- Sandra Day O'Connor: Yes. Richard L. Johnson: --that certainly would be punishment to that particular person. Sandra Day O'Connor: I wouldn't have thought so. It might be a confiscation, but I... it's a little hard to call it punishment I would think. Richard L. Johnson: If the person has done nothing wrong it seems like, then it would be punishment if the person would have their assets taken. I guess that's what I would say. The Excessive Fines Clause also should apply because the Government is able to use this forfeiture procedure without the traditional safeguards, procedural safeguards, that would apply in most criminal cases. The Government needs only to establish probable cause. It can establish hearsay evidence, and then the claimant has the burden to prove the claimant's innocence or some other defense that might be applicable in the case. Byron R. White: Yes, but you would be making the same argument if this forfeiture was done after a finding of guilt beyond reasonable doubt. Richard L. Johnson: That's true, yes. And the reason is because-- Byron R. White: Well, why don't we talk about the case like that? You'd still be making the same argument. Richard L. Johnson: --Yes, I would. There was guilt in this case. He pled guilty, and yet his involvement was relatively minor. At least that's what the record seems to indicate. And yet, he lost his home and he lost his business, a business that he had been involved in... not that particular place, but he has been involved in that business for 25 years. William H. Rehnquist: How about somebody like Mr. Harmelin, as we call them all Mister, in the drug case from Michigan where he was convicted of a relatively minor offense, possession I guess perhaps with intent to distribute, and he was sentenced to life imprisonment? Surely, that's a much more severe punishment than the loss of one's mobile home, and yet we held that was not barred by the Eighth Amendment. Richard L. Johnson: That's true, you did. And I think you felt that the States obviously had the right to enact laws that were like that. And the other thing is, though-- William H. Rehnquist: We felt the Constitution didn't prohibit the States from doing that. Richard L. Johnson: --Yes, that's true, and... but the amount of drugs in that case was 600 and some grams I believe too. William H. Rehnquist: And yours was only 2 grams? Richard L. Johnson: Only 2 grams, yes. David H. Souter: In your case, do you agree with the correctness of the Government's statement that if your client had been prosecuted federally, the fines could have amounted to $1 million? Richard L. Johnson: Well, I think the statute probably allows that, but that never would have happened. David H. Souter: Well, if it had happened, is the... would the application of the statute be unconstitutional? Richard L. Johnson: I think one could argue that that would be an excessive fine for someone that... who is in forma pauperis. In my experience representing persons who are... under court appointment, the fine provision is never used because they are not able to pay the fine. Antonin Scalia: I assume the higher the fine... the poorer you are, the easier it is to impose a higher fine. To the extent you're insolvent, you don't pay it anyway. Richard L. Johnson: Usually I think it would... usually, at least in my experience, the fine is not imposed if the person is not able to pay it. Antonin Scalia: Well, why... what is the reason why it's disproportionate here? Because there were only a couple of grams involved? Why... I mean, it's a violation of the drug laws. Richard L. Johnson: Right. There are a couple grams involved. This was a first offense for him. He lost his business, which was his means to earn a living, and he lost his home. Antonin Scalia: Well, it depends entirely upon how serious the society considers a drug offense to be I suppose. Richard L. Johnson: I think that's a factor, but also we're asking the Court to take into consideration the other factors, that someone who has lost everything they have for a relatively minor offense-- Antonin Scalia: Well, it's not relatively minor if society really has its face set against drugs and has provided for... at the Federal level at least, for penalties of the sort that has been mentioned. How can we say it's relatively minor? I can only look to the Federal statute and say, gee, at least the Federal Government thinks this is very serious stuff. It's very harmful to society. Richard L. Johnson: --It is harmful to society, and the... certainly the Government has to have laws which help it in its war on drugs. But the other thing that's true is that the full weight of the war on drugs shouldn't be visited on one person for this particular offense. William H. Rehnquist: Well, from the statistics you gave, it isn't. Richard L. Johnson: Well, that's true, but this person lost everything because of it. So, from his point of view, I think as the court of appeals alluded to, he lost everything that he had. In a sense, from his point of view, it has been visited on him. William H. Rehnquist: He's at least able to start over again in a way that Harmelin never was, spending the rest of his life in jail. Richard L. Johnson: That's true. Yes, that's right. Byron R. White: Have you got any cases on your side? Richard L. Johnson: Well, I think the Halper case is on our side, at least as far as the punishment issue. We're arguing mainly that the Eighth Amendment should apply to this case. Byron R. White: Have you got any cases applying it to the... to civil cases? Richard L. Johnson: The Whalers Cove case from the Second Circuit applies it, although the Whalers Cove case on the facts finds that it does not apply. And strictly speaking I guess it was an Eighth Amendment application. It said that the Excessive Fines Clause argument had been abandoned. So, it applied I think the Cruel and Unusual Punishment Clause and found that under the proportionality analysis that it wouldn't make any difference. Byron R. White: But it applied the Eighth Amendment anyway. Richard L. Johnson: It applies the Eighth Amendment yes. But as far as the Excessive Fines Clause, it doesn't. So, I don't think it's necessarily instructive on that issue. This would be the first case that really the Court has had to decide that applies the Excessive Fines Clause to this type of-- Byron R. White: Have you got any State supreme court cases on your side? Richard L. Johnson: --No, not that have applied the Excessive Fines Clause. No. Byron R. White: Or under their own constitutions? Richard L. Johnson: Not that I'm aware of, Your Honor. No. The Halper case indicates that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can be explained only as also serving either retributive or deterrent purposes, punishment, as we have come to understand the term. I don't think there's any question that civil forfeiture serves a retributive or deterrent purpose in addition to whatever remedial purpose it might serve. Because it also serves that, it's punishment within the... under the understanding of that term. Because it is punishment, the Excessive Fines Clause should apply. The in rem/in personam distinction also should not bar the Court from considering this issue. The Court's past cases, first of all, are instructive. One 1958 Plymouth Sedan, Boyd v. the United States, U.S. v. Coin and... U.S. v. U.S. Coin and Currency all see through the in rem/in personam distinction and apply the Fourth Amendment and Fifth Amendment protections to in rem actions. The statute themselves, as I indicated, establish that this is punishment rather than just remedial. They have innocent owner exceptions. They're tied to a violation of the criminal law punishable by more than one year's imprisonment. There are procedures for remission or mitigation of forfeiture, and they are based on violations of the Controlled Substances Act. David H. Souter: What did the prior or the old law mean when it defined the objective of the in rem action as remedial? Remedial in the sense of removing an instrumentality of the crime from the hands of criminals? Richard L. Johnson: Yes, that was one of the-- David H. Souter: Well, that's exactly what's being done here, isn't it? Richard L. Johnson: --Well, I guess I'd argue that the body shop and the mobile home were not instrumentalities. They weren't specifically structured or designed for this type of drug use. In other words, there wasn't a manufacturing plant in there. There weren't secret compartments. They weren't-- David H. Souter: Well, ships were not necessarily designed for smuggling either, but they were used for that. And warehouses on Long Wharf in Boston weren't necessarily built for smuggling, but that's what they were used for, and they were forfeitable I suppose. Richard L. Johnson: --I think that in those cases too, though, that the item was specifically used to store drugs and it was used to transport drugs. David H. Souter: Well, the mobile home was being used to store drugs, wasn't it? Richard L. Johnson: Not-- David H. Souter: I forget where the cocaine was found, but I mean, there's a bag of cocaine either in the body shop or the mobile home. I mean, I just am finding the distinction based on remedial versus punitive a pretty ethereal distinction, and what bothers me about it is if we go your way on the theory that there is, in effect, a punitive function going on here by virtue of the innocent owner defense, then we have to face the fact that despite that variation, we're still dealing with two kinds of in rem actions, one against the guilty owner and one all other varieties of in rem action. And we would have put ourselves in the position of saying that the guilty owner has a proportionality objection. The innocent owner has none whatsoever in those cases which make no distinction between innocent and guilty owners. And I suppose the next step down the road, if we go your way, is going to be the due process argument, that one cannot go against an innocent owner in an in rem action simply because the Government has no justifiable purpose under the Due Process Clause when at the same time the guilty owner is allowed to contest it. And it seems to me that you're setting us off on rather a steep slope if we buy your argument, and I'm trying to see if there's a way out of it. Richard L. Johnson: --Well, I guess I'm arguing that the Excessive Fines Clause should apply to this forfeiture whether the person is guilty or innocent. It's the actions of the Government I think that should be scrutinized under the Excessive Fines Clause. David H. Souter: Well, then do we take the next step and say in the most garden variety of old-fashioned in rem actions, there is likewise going to be a proportionality defense, and in fact, it will always work I suppose because the owner is always going to be innocent or innocence is always going to be... strike that. Guilt is always going to be irrelevant. Richard L. Johnson: I don't think guilt is irrelevant. I think it's one of the factors. David H. Souter: Well, it's irrelevant under the traditional in rem action as you were describing it. You're saying it's remedial. It's not punitive. Why isn't the proportionality argument, at least as raised by a person who claims innocence and can show innocence, always going to succeed? Richard L. Johnson: Well, I don't know. I guess I think that the-- David H. Souter: Well, if I'm innocent, it's disproportionate to take a nickel out of my pocket, isn't it? Richard L. Johnson: --That's true, yes. David H. Souter: Then it's always going to succeed. Richard L. Johnson: I don't know. I guess again it depends on what the Court sees, the different factors. But if a person is innocent and hasn't done anything, well then certainly that should be a defense. It should be something the Court should consider in deciding whether or not it was proper to forfeit property or not. Sandra Day O'Connor: Well, I suppose the Government can always decide that certain property is malum in se. In other words, it's contraband. It can be taken. Richard L. Johnson: Yes. Sandra Day O'Connor: It has no proper use or it's dangerous to the public. Richard L. Johnson: That's true. Sandra Day O'Connor: I would think there would be many reasons where you could take property even from someone who's totally innocent. Richard L. Johnson: Yes, that's true, especially if the property is used... has a specific purpose in advancing the drug business. If it's specifically designed, for example, to hide contraband or if it's specifically used for nothing but the drug use, then-- David H. Souter: But none of those categories would be applicable to the property involved here. Richard L. Johnson: --I would say that's true, yes. That's right. John Paul Stevens: Are you saying... I want to... I am not... I want to be sure I'm following your argument. Are you saying the tests should be different depending on whether the... assume it's an instrumentality of the... of crime. On the one hand, you have an instrumentality can be used for no lawful purpose, burglar tools or something else, that that would have a different test than one where you have an automobile and most of the time it's used for perfectly legitimate driving, but on one or two occasions it's involved in the drug trade. Are you saying there's a different test depending on the character of the use of that which is sought to be forfeited? Richard L. Johnson: I think that's one of the factors that should be taken into consideration I guess; that among other factors, one of the factors should be is this property used all the time for illegal purposes or is its use incidental to the particular use... illegal use. John Paul Stevens: And do you draw a distinction between instrumentalities of crime and proceeds of illegal activity? Richard L. Johnson: I believe that proceeds of illegal activity... yes, that's correct. John Paul Stevens: And which do we have in this case? Richard L. Johnson: Well, this is not proceeds or instrumentalities I would say because these-- John Paul Stevens: Then how did they get... how could they forfeit it if it isn't one or the other? Richard L. Johnson: --Because it's under the right to forfeit homes and conveyances and businesses, real property, whether it's-- John Paul Stevens: Yes, but it's real property, homes, et cetera that are used in the furtherance of the drug trade, isn't it? Richard L. Johnson: --Yes, but I would argue that it's not an instrumentality because it hasn't been specifically adapted for that use, that it's... the fact that it was done in that particular place was incidental to it. John Paul Stevens: And you're, in effect, arguing we should limit the historic law like illegal distilleries and things like that to properties that had no legitimate... basically had no significant legitimate use. Is that it? Richard L. Johnson: I would say that those particular items would be more likely to be forfeited than something that had some legitimate use. I guess that's where this analysis would come into play, this factor analysis. John Paul Stevens: Well, it would seem to me that if they had no legitimate use, that it would always be proportional to forfeit it. I don't know when you could say it's disproportionate to take... a $1 million distillery would be no different from a $10 distillery as far as I could see. Richard L. Johnson: If it's always used for... I guess that kind of depends on what the property is, though. If, let's say someone again has lost everything they have, if it's their business or something like that, and if it's not used, well then maybe there would be an argument that it should not be forfeited. John Paul Stevens: Well, but if it's their business and the only use is illegal, it's not the kind of business we want to preserve. Richard L. Johnson: That's true. If the sole use is illegal, then it should be forfeited, yes. I'll reserve the rest of my time for rebuttal. Thank you. William H. Rehnquist: Very well, Mr. Johnson. Mr. Estrada. Miguel A. Estrada: Thank you, Mr. Chief Justice, and may it please the Court: The issue in this case is whether the Eighth Amendment requires that civil in rem forfeitures be proportional to the criminal culpability of the owner of the property. Seven of the eight courts of appeals that have ruled on that question, including the court of appeals in this case, have concluded that the Eighth Amendment does not require that type of proportionality review, and because the majority view is correct, the judgment of the court of appeals in this case should be affirmed. Antonin Scalia: Mr. Estrada, historically... do you know the answer to this? Historically at the time the Eighth Amendment was adopted, was there such a thing as in rem forfeiture of real property, or was it limited to ships and personal property? Miguel A. Estrada: The... there is no contemporary case that we've been able to find in which a specific issue was made of the fact. There is a case, Dobbins Distillery, which is cited in our case, in which the claim was raised specifically that real property in that case could not be forfeited, and the Court dealt with the real property in the case much as it had dealt with the claims of ships and the like without giving any indication whatsoever that the real estate, by virtue of being that type of property interest, couldn't be forfeited under the common law. The statute in that-- Antonin Scalia: In that case, Mr. Estrada, was it a leasehold interest or a fee interest? Miguel A. Estrada: --I think the fee interest was forfeited. The facts of the case were that the claimant had leased the interest to someone who then used it for the purpose of a distillery business, and the person who was so using it was putting it to a lawful use so long as he kept records and paid taxes, which he failed to do. Now, as a result of the acts of the lessee in not doing what he was supposed to do, the property, including the tract of land, was forfeited to the Government. And the statute in that case was very clear that the tract of land was to be forfeited. It was a statute passed by Congress I believe on July 20, 1868 and is found at 15 Stat., page 133. There was no indication in the Court's... in how the Court dealt with the case that it thought of this as being in any way unusual. Antonin Scalia: Didn't they set aside... I haven't looked at the case for quite a while. Didn't they set aside part of the forfeiture in that case? Miguel A. Estrada: That is not my recollection. Antonin Scalia: And your understanding is that even though it was a leasehold, actually what was forfeited was the fee interest in the property. Miguel A. Estrada: That is what... how we read the case, and the statute I think was very clear. It actually made reference to the tract of land rather than to the interest of the owner. William H. Rehnquist: What's the name of the case, Mr. Estrada? Miguel A. Estrada: Dobbins-- William H. Rehnquist: Dobbins? Miguel A. Estrada: --Distillery, which is cited in our brief, Mr. Chief Justice. Now, this Court has long understood the Eighth Amendment with its references to bail, fines, and punishments, to be directed to the criminal law function of the Government. And consistent with that understanding, this Court in Brown and Ferris concluded that the word fine, as used in that amendment and as understood by the Framers, meant a payment to a sovereign as punishment for some offense. Our claim here is that civil in rem forfeitures are not fines under the Eighth Amendment and do not otherwise implicate the Eighth Amendment because they have never been considered punishment for an offense. Sandra Day O'Connor: Well, now, doesn't Halper indicate that a civil pecuniary sanction, designed to be remedial, can be punitive? Miguel A. Estrada: I think Halper indicates that there are certain cases in which the Court will disregard the label that Congress has chosen to put on a given exaction, but under certain very limited circumstances. Both Halper and the case of Bell v. Wolfish, which is cited, do what is in essence an as-applied challenge to a specific Government conduct; that is a claim that even though a statute is civil in the usual case, as applied in the case, it should be considered forbidden punishment. But in the type of as-applied challenge, both Halper and Bell concentrated on the seventh Mendoza-Martinez factor, which is whether the Government conduct seems excessive in relation to the nonpunitive purpose as being claimed for it. The theory of both cases, which was a theory that won in Halper and lost in Bell v. Wolfish, was that if the Government exaction in the specific case is so patently out of kilter with the stated nonpunitive purpose, then the court may safely infer that the true purpose was something else, i.e., the desire to use the sanction in the specific case, not to further the purpose of the statute, but to inflict what is, in essence, punishment. Halper makes very clear that the road to that level of... lack of rationality is very long and there are very few cases in which the specific invocation of-- Sandra Day O'Connor: Where it would meet the standard. Well, should this case be subjected to a Halper inquiry do you think? Miguel A. Estrada: --I think every case in which the Government conduct is challenged can be subjected to a Halper inquiry. We think that this class of cases, including this specific case, is of such a nature that the inquiry should never be successful because since the whole point of the in rem forfeiture statute is to make the property unavailable for further unlawful use and to compensate the victims of the unlawful use, it will never be a case in which the specific invocation of the forfeiture statute will exceed the bounds that the Court outlined in Halper. Anthony M. Kennedy: Well, we can accept in this case, can we not, Mr. Estrada, that the purpose of the forfeiture statute is supplementary to the criminal laws because it deters and punishes? Miguel A. Estrada: I think you can certainly accept that the civil forfeiture statute in this case is part of a whole set of weapons, if you will, that Congress chose to use for a very grave social issue, and we certainly concede that it is part of the statute that certain owners will be deterred from using the property in this way. We do not agree with the claim that anytime there is any element of deterrence in Government action, that that automatically means that the action should be set aside or that it should be examined under heightened constitutional scrutiny, and we don't think-- Anthony M. Kennedy: Well, in addition to deterrence, it's punishment, is it not, in the civil forfeiture context that we have here? Miguel A. Estrada: --We don't think that what we have in this case, either as a general matter or in the specific facts of this case, that we can call this punishment in the constitutional sense, Justice Kennedy. Anthony M. Kennedy: Well, in the brief that the Justice Department filed in the Parcel of Land case that we decided earlier this term, the Solicitor General is quoted at length from the Senate committee report indicating that the purpose of these laws would be to deter and punish further because criminal sanctions were ineffective to combat the drug trade. So, I just think that we ought to recognize that the purpose of this law is to deter and punish. If we do recognize that, do you have a more difficult case? Miguel A. Estrada: Yes, I think we would. I just... as a comment on that cite, it is often the case that a word can be used by Members of Congress, such as the word punish, in a sense which is broader than the constitutional sense. And we think that even though there are, in fact, some such statements in the legislative record, that the structure of the statute, the language of the statute, and the history of this type of thing show that this is not punitive in the constitutional sense. And as to that point, I think we would simply point to the tests that this Court has followed in a case like Mendoza-Martinez. Byron R. White: If we thought it was punishment, do you lose? Miguel A. Estrada: Excuse me, Justice Stevens... I mean, Justice White. I'm sorry. Byron R. White: If we thought this was punishment, this amounted to punishment, would you lose? Miguel A. Estrada: No. If you thought that this was, in fact, punishment in the constitutional sense, there would still be the claim as to whether it is excessive punishment. The Eighth Amendment doesn't outlaw punishment. Byron R. White: But you would say, however, that if it is punishment, it is... the Eighth Amendment is applicable to civil cases. Miguel A. Estrada: Yes. I think it is true that Congress cannot get out of the Eighth Amendment simply by the label that it places on something. It is also-- Byron R. White: Does it have to be some connection with a criminal case? Miguel A. Estrada: --Yes. I think this Court would have to conclude under the tests that this Court has always applied in similar inquiries like the Mendoza case that in fact what this statute does is to inflict punishment in the constitutional sense. And if that were the case, then it would follow that you could, in fact, look at what the Government is doing under the Eighth Amendment. Our principal claim in this case is that something of this type, by reason of history and by reason of the fact that the history still serves a purpose to this day, should not be considered punishment in the constitutional sense. Byron R. White: Do you think historically the excessive fines notion applied at all in civil cases? Miguel A. Estrada: No. No, and I think when the Court went over the history of the excessive fines language in the Eighth Amendment in the Brown and Ferris case, the Court concluded that to the Framers the excessive fines... that the fines that are mentioned in the Eighth Amendment were payments to the sovereign as punishment for some offense because then and now fines are assessed in criminal cases. Byron R. White: So, the answer historically would be if a fine is payable to the sovereign as a fine, if it's as punishment, it doesn't make any difference that it's a civil case. Miguel A. Estrada: That is right, Justice White. I should say that in looking at the issue of whether this is, in fact, punishment in the constitutional sense, there are tests that this Court has always applied, most notably the Mendoza-Martinez factors. And using that very test, this Court only a few years ago ruled that a very similarly worded in rem forfeiture statute was not punishment under the Mendoza-Martinez factors. That case is One Assortment of 89 Firearms, which is cited in our brief, and in that case, the statute in question mandated forfeiture of all firearms used or intended to be used in violations of the Gun Control Act or any other criminal law of the United States. Byron R. White: So, what if we say that we think this is punishment contrary to your belief? Is there any difference between saying it's an excessive fine or it's cruel and unusual punishment? Miguel A. Estrada: We don't think that the constitutional standard in that event would be significantly different because in either case, you would be looking at whether the Government exaction is extremely out of kilter with what the Government is trying to do with the exaction. Byron R. White: So, what would be the standard under the excessive fines route if we said, well, this is punishment, and so the Excessive Fines Clause applies? Miguel A. Estrada: We think that the standard would be comparable to the standard that the Court used in Harmelin, which is in the first instance to ask whether the fine or the punishment is grossly disproportionate to the gravity of the crime. Byron R. White: So, you do say that the standard would be roughly the same-- Miguel A. Estrada: Yes, we do, Justice White. Our principal claim here is that this type of conduct is not punishment, but even if it is, our alternative claim is that under the Harmelin standard, this conduct couldn't be found to meet the level of excessiveness that would counsel setting it aside. Antonin Scalia: --Mr. Estrada, historically did these in rem forfeitures contain an exclusion for the property of innocent persons? Miguel A. Estrada: Yes, Justice Scalia, in a very limited sense. Not innocence of the crime as such. There is an 1808 case written by Chief Justice Marshall that was cited in this Court's opinion in Calero-Toledo, and the name of the case is Peish v. Ware, which is cited at page 689 of Calero-Toledo and is reported at Fork Ranch 347. That was a case in which a ship had been wrecked on the coast of Delaware. The goods were taken to the coast, and the Government brought a forfeiture action claiming that shortly after the ship was shipwrecked, the goods had been found in Delaware without tax stamps. The Government lost that case, Chief Justice Marshall saying what seemed to be a statement of the common law of forfeiture, that a forfeiture wouldn't lie at common law in a case where there was nothing that the person, on whom the forfeiture would work, could have done to keep it from happening. And we would take that as being part of the common law of forfeiture. This Court's case in Calero-Toledo cited that and in addition said that invoking a forfeiture under those facts would likely be a violation of due process. In addition, footnote 27 in Calero-Toledo pointed out... excuse me... that since 1790 the Federal Government has had statutes that provide for the remission of forfeitures as a matter of administrative grace when the owner can show that he was without intent or without willful negligence, and that goes back to 1790. We think that Congress' decision to include something very much like that in this statute, as a matter of statutory right rather than as a matter of grace, really doesn't change what the nature of the action-- Antonin Scalia: It doesn't stop... it doesn't turn it from remedial into punitive. Miguel A. Estrada: --Correct, because that has always been there. Throughout the history since 1790, there have been some statutes that actually vest that type of claim with the court and there are some statutes now where a claimant can go to a court and ask that the forfeiture be mitigated rather than going to an agency, but that has always been there since 1790. And making this a matter of statutory right doesn't change the nature of the action. David H. Souter: Just looking at it from the other side, that sort of provides an answer to the question that I asked your brother, and that is, assuming we do find that there's something punitive here and we don't classify it as immune from review merely as a remedial forfeiture, there seems then to be a historical basis for us not to have to worry about the case of the truly innocent owner subject to the classic historical forfeiture because that person, based on your case from Fork Ranch, may very well have had a defense to the forfeiture all along. Miguel A. Estrada: I think we have to... yes, but I think we have to distinguish two meanings of innocence in this context. When the Court has always said that innocence is not relevant, what it had meant as the cases make clear is that you needn't be guilty of a crime. However, it is still possible and, indeed, likely that you haven't been very careful with your property. David H. Souter: In the case of the parents whose child uses the house to store drugs that he sells on the street, you would say if they had reason to know that he was using them, their property would historically be... on historical grounds be subject to forfeiture in the absence of any statutory defense; whereas, if they had not in any way been negligent in failing to know of the fact that he was using his room as a storehouse for the drugs he was selling, they would have a defense. Miguel A. Estrada: Well, I think that that's not necessarily the case because I think what Chief Justice Marshall had in mind and what we have had through the history is the imposition of a very high standard of care-- David H. Souter: A... an affirmative obligation-- Miguel A. Estrada: --on the owner. David H. Souter: --really to take-- Miguel A. Estrada: Right, and-- David H. Souter: --to take care that it not be used. Miguel A. Estrada: --Correct, and I think that that is, in fact, what we think has historically justified civil forfeitures. The civil forfeiture statutes go on the really common sense premise that there are certain uses of property that are so harmful and so socially undesirable that the law must place every incentive on the owner of the property to make sure, even if that takes taking affirmative steps, that no one, whether the owner knows about him or not, will inflict those harms on society with the owner's property. David H. Souter: And that, of course, would be your answer to the claim of the so-called innocent owner who was merely negligent. Miguel A. Estrada: Right. David H. Souter: Yes. Miguel A. Estrada: Yes, and we would say that as a historical matter, that person wouldn't have that type of a claim because the whole point of having a remedy of this type is to take note of the fact that there are certain things that only an owner can do and only an owner can take care of his property and make sure that it is not broken into and turned into a crack house, for example. Byron R. White: But all that analysis, Mr. Estrada, proceeds from the line of cases that essentially began with forfeitures in the maritime area and forfeitures of certain kind of chattel. But isn't it true that at early common law, one of the benefits, at least to the nobles, of classifying certain crimes as felony was so that they could have forfeiture. Forfeiture was intricately bound up with the definition of crime at a very early English law, was it not? Miguel A. Estrada: Well, I think-- Anthony M. Kennedy: And didn't the Framers recognize that? Miguel A. Estrada: --There were two types of forfeiture at early common law, Justice Kennedy. One of them was the so-called forfeiture of estate, which really was in personam and really only came into play when the Government proved with a judgment of conviction that the person had, in fact, been convicted of a crime. The other type of forfeiture really didn't have anything to do with the crimes that were hurting the king's bench. It was in a completely different court system, the Court of the Exchequer, and that type of forfeiture, which is, in essence, what is at issue here, didn't partake of the rationale that you just gave I think. Anthony M. Kennedy: It seems to me that the Framers were concerned that the criminal laws not be used to impose excessive punishments, and certainly in the early history of England, that was true with reference to forfeitures for felonies. Miguel A. Estrada: Right, but it is not the same type of forfeiture that is at issue here, Justice Kennedy. If this were a case in which the forfeiture could only be had upon the conviction of a crime, we don't... we would not be here because we would concede that the essence of that sort of action is on the person. What we do have here is a statute that really doesn't need the criminal law other than to state a... other than to set a standard of conduct and, taking that as the standard of conduct, then says if your property has been used or is intended to be used for this purpose, then we will make sure that that harm doesn't come to pass by placing the property in the hands of someone who can give surety to society as a whole that these harms won't happen. And I think that's a very different type of forfeiture than the forfeiture that you have in mind, Justice Kennedy. John Paul Stevens: May I ask you a question, Mr. Estrada? Your discussion of two kinds of innocence and the different... your colloquy with Justice Kennedy brings this to mind. In the Dobbins Distillery case that you describe, the landlord knew that the property is going to be used for a distillery and perhaps had a higher duty to be sure they kept the records properly and so forth. But you say you would apply the same standard in a case like that as if just an ordinary landlord rented a flat somewhere to a party and had no reason to believe it was to be used for anything but a residence, and it turned out that the tenant dealt in drugs in the flat without any knowledge of the landlord. Would you say that the fee interest of the landlord would be forfeitable equally as... on those facts as in the distillery case? Miguel A. Estrada: Well, it would not happen under this statute because of the-- John Paul Stevens: No. I'm just talking about would the constitutional objection... if there was any constitutional problem at all, would you say the analysis would be the same-- Miguel A. Estrada: --Yes, although-- John Paul Stevens: --in a case where you know that it's the kind of business that has special duties and special concerns on the one hand, and just rent it as a residence on the other? Miguel A. Estrada: --I think the mode of looking at the question would be the same in the sense that you would ask the same questions, i.e., whether the owner did everything that he physically could to ensure that this didn't happen. I think if the owner, for example, never was around to see all of the suspicious people come and go and really made no effort whatsoever to stop by and look at the property, it is possible that that person would lose. Someone who did take those steps, we would think that as a matter of common law, he would have exercised every care that the law could ask of him. And if after every care and physically... and after physically doing everything that he could, the harm still came to pass, we would understand the common law as giving that person a defense. Unless the Court has any further questions, we'll rely on our briefs. William H. Rehnquist: Thank you, Mr. Estrada. Mr. Johnson, you have 3 minutes remaining. Richard L. Johnson: Thank you, Your Honor. Counsel for the Government talks about the Kennedy v. Mendoza-Martinez criteria. Applying that criteria to this case, it's clear that the actions of the Government in this case do constitute punishment. First is whether it creates an affirmative disability or restraint. Obviously, the loss of Mr. Austin's business and his home was a disability on him. Whether it historically has been regarded as punishment. We'd argue that this type of forfeiture that occurred in this case has historically been regarded as punishment because we argue that it goes back to the time of the Framers and prior to that what they understood as punishment to be. Byron R. White: Would the answer on proportionality be different if it was 600 grams instead of 2? Richard L. Johnson: I would argue that that would be a more... that would be a factor which would be more detrimental to Mr. Austin, obviously, yes. Yes. The answer-- Byron R. White: Even though he's deprived of his entire livelihood. Richard L. Johnson: --If it was 600 grams, there's more of a chance that probably the place was being used to store drugs too. That very likely could be the case, but again, that's a... it's a... an analysis that has to be determined I think by the court in the first instance, by the district court. In other words, all the factors have to be taken into consideration. The third factor is whether it comes into play on a finding of scienter. In this case, the statutes themselves indicate that scienter is a factor. In other words, if the owner does not know of the drug use, then it's a defense. Four, whether the operation will promote the traditional aims of punishment, retribution, and deterrence. In fact, that is the case here too. This civil forfeiture under 21 U.S.C. 881(a)(4) and (a)(7) does promote-- William H. Rehnquist: So, the more lenient Congress is with respect to the mental element, scienter, the more it is criminal? Richard L. Johnson: --I don't think I'm saying that. I guess-- William H. Rehnquist: Well, I thought you said that if the statute provides that lack of scienter is a defense, then that tends to make it a criminal statute. Did I misunderstand? Richard L. Johnson: --Yes, that's true. Yes. In this particular case-- William H. Rehnquist: So, the more lenient Congress is with respect to the party involved, the more it's criminal rather than civil. That strikes me as astounding. Richard L. Johnson: --Well, one of the factors of whether or not it's punishment is whether or not scienter is involved, and that... in this particular case, if you are an innocent owner, then that is a defense to the civil forfeiture. So, that's... that is one of the factors in this case. Next, whether the behavior to which it applies is already a crime. As I indicated, the statutes do tie the civil forfeiture to the violations of the controlled drug statutes. And I see my time is up. Thank you. William H. Rehnquist: Thank you, Mr. Johnson. The case is submitted. Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

William H. Rehnquist: We'll hear argument now, No. 87-2013, Board of Trustees of the State University of New York v. Todd Fox. Mr. Sherwood, you may proceed whenever you're ready. O. Peter Sherwood: Mr. Chief Justice, and may it please the Court: To paraphrase the district court, the gravamen of a complaint in this case, is that the State University of New York, we call it SUNY, has refused to permit American Future Systems, a company that markets pots, pans, cutlery, and dishes, to conduct product demonstrations in campus dormitory rooms. The Respondents have a radically different view of the case. They argue that this case concerns the pure speech rights of students. But the Second Circuit, like the district court, concluded that the only speech involved in this case, is constitutionally subordinate commercial speech. However, in evaluating the commercial speech involved here, the Second Circuit made a critically important error. Today, I want to spend a minute, laying out our position, and then, I plan to discuss why the Second Circuit decision must be reversed. We maintain that the challenge regulations, designated SUNY Resolution 66-156, does nothing more than prohibit the operation of... for-profit commercial enterprise on SUNY campuses and that it is constitutional. We believe, that if the Second Circuit had simply, properly applied the standards of review for restrictions on commercial speech, it would have sustained the regulations. And, even if it was disinclined to sustain the regulation, on that basis, it should have sustained it as a permissible time, place, and manner restriction. We, of course, adhere to the other reasons set forth in our brief, for sustaining the regulations. Harry A. Blackmun: Would your position proscribe an attorney visiting a student in his dormitory room? O. Peter Sherwood: If an attorney wished to visit, where he's not yet been retained-- Harry A. Blackmun: No, he's been retained, and it would be... his time would be charged. O. Peter Sherwood: --There is testimony in the record from, I believe Norman Hofstaeder, in which he says no, that that would not be permitted, believing that there would be more appropriate places for those kinds of communications. Harry A. Blackmun: What about a physician attending a sick student in his dormitory room, for pay? O. Peter Sherwood: I think under those... there's no testimony in the record, with respect to that example. Harry A. Blackmun: Well, what does your regulation say? O. Peter Sherwood: The regulation doesn't speak to it directly. The regulations... the terms of the regulations simply are that, for-profit commercial... no authorization shall be given for the operation of for profit commercial enterprises. It would seem to me, that given the example that you just gave me, Justice Blackmun, that that would not be conducting... that would not be operating a business on the campus. Byron R. White: Well, what about the lawyer? O. Peter Sherwood: I'm simply referring to the testimony that was given. I would say that that testimony is rather ambiguous. Thurgood Marshall: What about a tutor? O. Peter Sherwood: What about... that question was asked, too. A tutor, according to the testimony, as I recalled it... Dr. Pogue, I believe, suggested that in his interpretation, or maybe it was Murabito, that that would not be permitted. I should say though, that with respect to these examples, the case here involved and focused on, simply, efforts by American Future Systems to put on product demonstrations in dormitory rooms. None of the students, in their complaint, or otherwise, indicated that they, in fact, wanted to put on... wanted to have doctors in their rooms, or to-- Sandra Day O'Connor: Well, we may have an overbreadth problem. O. Peter Sherwood: --Excuse me? Sandra Day O'Connor: We may have an overbreadth problem, of course, and it depends on the meaning of the regulation, and how are we to know what it means? The testimony below, certainly gave it a very broad interpretation. And, the district court appeared to give it a rather broad interpretation. What are we to make of that regulation? O. Peter Sherwood: Well, I believe overbroad... overbreadth is not here, Justice O'Connor. And there are at least four reasons why overbreadth is not here. First of all, it wasn't raised below in any... in any sense. Sandra Day O'Connor: Well, it can certainly be offered in defense of the judgment below, can't it? O. Peter Sherwood: I believe that you have to have preserved that claim, beyond that. Sandra Day O'Connor: I didn't understand that. Do you want to cite something to us? O. Peter Sherwood: The cases that we've cited in our applied brief, I, I admit, are Circuit Court cases. We have not cited any Supreme Court cases that address that beyond that. Byron R. White: This is commercial speech... this is commercial speech. The doctrine of overbreadth doesn't apply at all, does it? O. Peter Sherwood: I agree. As I said, there are at least four reasons why overbreadth wouldn't apply here. Byron R. White: And one of them is that? O. Peter Sherwood: The first had to do with non-preservation. The second has to do with the fact that it doesn't apply... overbreadth doesn't apply to commercial speech. The third has to do with the fact that this... the challenge regulation here involves conduct, not simply speech. And, in Oklahoma and Broderick, that was a... where you got that kind of circumstance, overbreadth does not apply. And beyond that, the regulation here could be invalidated as overbreadth only on a... upon a showing that it was substantially overbroad. And then, this Court said, just last term, in the New York State Club Association's case, you would have to have a showing from the text of the regulations an actual fact of a substantial number of instances existing, in which the regulation cannot be applied constitutionally. I don't think that we have that here. Otherwise, what this Court would do, and what courts are obliged to do, is to solve those potential, extended applications of a regulation on a case-by-case basis. The students in this case... that challenged this regulation, never once, asserted any other interest here, other than the fact that they wanted to host, or listen to, demonstrations by American Future Systems. And so, we believe that this is not a case in which the overbreadth doctrine would apply. The focus of this case has been on AFS' demonstration. The case that was tried in the district court focused on that. Yes, there were a number of hypothetical questions made of witnesses for the University, in which they were asked, "what about doctors", "what about tutors"? In one instance, there was a question asked, "What about the sale of a bicycle, from one student to another student? " And, you got conflicting testimony there. Byron R. White: But the case or controversy... the issue here is product demonstrations? O. Peter Sherwood: That's absolutely correct. Byron R. White: That's the application we're talking about? O. Peter Sherwood: Absolutely. And, that's all that's before this Court, quite frankly. John Paul Stevens: Mr. Sherwood, can I ask you a question about the procedure in the case? After the Second Circuit decision, the case went back and was tried, and then you lost it. Was the district court's decision on remand ever reviewed by the Court of Appeals for the Second Circuit? O. Peter Sherwood: No. It was not. You're talking about the October 8th, 1988 decision? John Paul Stevens: Yes. O. Peter Sherwood: That... no. We did not take an appeal there. We moved in the district court for a stay, because this Court had, on the very day that the district court decided the case and granted cert, and to my knowledge, the district court hasn't acted on that motion yet. So, that's the posture that we're in here. Byron R. White: What did you lose in the district court? O. Peter Sherwood: After the Second Circuit decided the case, the district court then applied the commercial speech standard, as it was defined by the Second Circuit, the Second Circuit having said that, with respect to the fourth prong of the Central Hudson test, that that involved a, a least restrictive means test. The district court said given our justifications for having this regulation that we could not meet that standard, and therefore, struck down the regulation. John Paul Stevens: May I ask you, if in your view, the record that we're permitted to look at in deciding this case, includes what happened on remand, as well as what was before the Second Circuit? O. Peter Sherwood: I believe you could. John Paul Stevens: When we're reviewing the Second Circuit decision, we can rely on matter that that court had never even seen at the time of its decision? O. Peter Sherwood: Well, the only thing that exists beyond, in the district court, at this point, beyond what the Second Circuit concerned was the decision. John Paul Stevens: Wasn't there another evidentiary hearing? O. Peter Sherwood: There was not a hearing. John Paul Stevens: Oh. O. Peter Sherwood: No. The district court here simply decided that it would... undertook to... it got back the mandate, and undertook to enter a decision resolving the case. John Paul Stevens: But was there oral argument and briefing at that time or-- O. Peter Sherwood: None of those. John Paul Stevens: --You mean, you just got the remand? O. Peter Sherwood: Got the remand and made a decision. Byron R. White: What happens if you win here? If your case is over in the-- O. Peter Sherwood: If we win here, we believe that the case is over. We believe that we're entitled to, or should receive, a reversal. Byron R. White: --Well, no, but, what happens to the judgment against you in the district court? It never was appealed. O. Peter Sherwood: I would imagine that we would go back to the district court in that circumstance, and seek to have the judgment vacated, in view of the decision in this Court. Byron R. White: And if you lost? O. Peter Sherwood: We would then seek to appeal from the denial of our-- Byron R. White: But what if you lost on the ground that it had become final a long time ago, and it's too late to redo it? O. Peter Sherwood: --Well, the district court does have before it, a motion in our Part 4 stay, and we assume that you would-- John Paul Stevens: Which, it just hasn't acted on? Is the injunction in effect now? O. Peter Sherwood: --I assume that it is in effect, given that the Court has yet to act on our application for the stay. Thurgood Marshall: I see. Could the district court overrule us? O. Peter Sherwood: I doubt it. [Laughter] Well, it could overrule you, instead by a vote-- Speaker: They had the same case. Don't they have the same case? O. Peter Sherwood: --Excuse me? Thurgood Marshall: Don't they have the same case we have? O. Peter Sherwood: It is certainly the same case. Byron R. White: Well, you might have kept your... you might have appealed this adverse judgment and kept your case alive. O. Peter Sherwood: We thought that we certainly might have done that, but we thought the appropriate way to approach the matter was to request to the District Board, a stay, pending a determination by this Court. After all, the court had... this Court had granted cert, and we're here now arguing the case upon that grant of cert. So, we thought that it was appropriate, simply at the district court to hold everything in abeyance. Byron R. White: But he hasn't? O. Peter Sherwood: Rather than... pardon? Byron R. White: But it... the district court hasn't done that? O. Peter Sherwood: He doesn't anything one way or the other. Byron R. White: Well, there's an injunction outstanding, isn't there? O. Peter Sherwood: There is an injunction outstanding, yes. But our motion has not been acted on. We do have... and that motion is... we do have motions also pending pursuant to Rule 59, I've been reminded, and I believe that we don't have a need to take an appeal while our motion is pending. As applied to the underlying controversy in this case, Resolution No. 66-156 of the Trustee, does prohibit the holding of Tupperware parties in students' dormitory rooms, and it is not, in any sense, a reflection of any animus on the part of the University against American Future Systems, or Mary Kay, or the Fuller Brush Company, or any of the other hundreds, or even thousands of direct marketing companies that operate in the United States. Rather, the regulation is intended to preserve the educational character of SUNY campuses, and to respond to the safety and security concerns on campus. The Second Circuit recognized that these were substantial interests. Now, even though the Second Circuit correctly saw this case as involving commercial speech, and not pure speech, it held that the regulation would not be sustained, as I said before, because... largely because the standard that it viewed to be appropriate is the least restrictive means test. It also sent back the case, by the way, for the district court to make determinations with respect to whether or not the regulation directly advanced the state's interests. The Respondents here, interestingly, do not seek to make virtually no effort to defend that holding... that untenable holding of the district... of the Second Circuit. They assert, instead, that SUNY hasn't proved that the regulation isn't more extensive than necessary. For this reason, I want to focus largely on the fourth aspect of the Central Hudson test. As I've already mentioned, the regulation is intended to promote the educational character of the University's facilities, and to preserve the safety and security on campus. To an extent, the regulation is a prophylactic measure, which is designed to forestall a perceived harm. And these predictive judgments, we contend, made by University officials who have both the authority and responsibility for maintaining the campuses is entitled to some deference unless there is a showing that their actions here are unreasonable. The only way that the University is going to preserve, we submit, the educational character of its campuses and avoid turning campuses into commercial bazaars is to prohibit the operation of commercial enterprises on campus. AFS is just one of the many companies that seeks to market directly to college students. Its demonstrations last two to three hours. Each one of them lasts two to three hours. The Federal Court in Philadelphia found that at Penn State, AFS managed to put on 51 product demonstrations in just a two-week period. One can see, pretty readily, that the prospect of students seeking to earn incentives... putting the arm on their fellow students to... to attend presentations and purchase products, has a potential for creating tensions among students and can alter the character of the University. In addition, the regulation is a way of dealing with security risks on campus. A prohibition on the operation of commercial enterprises has the effect of limiting the number of strangers who come on to the campus. Antonin Scalia: That would justify almost any rule, wouldn't it? O. Peter Sherwood: Security concerns? Antonin Scalia: Right. I mean, limiting the number of people who come onto campus would justify almost any rule. O. Peter Sherwood: Well, this regulation now is... where it seems to me that it is... it is an appropriate... I guess it goes to the question as to whether or not that's a substantial governmental interest. It seems to me there is. Antonin Scalia: You're telling me you let people come on campus for no reason, but you will not let them come on for this reason? That helps your security? O. Peter Sherwood: We're not attempting, Justice Scalia, to turn a campus into a high-security facility, by any means. Antonin Scalia: Well, I just don't see how this furthers security at all. If you had rules only, only the following categories of people are able to come on to campus, then I could see, excluding this category is for security reasons. But, as far as I understand the state system, anybody can go on campus, so long as he goes there for no reason. But, if he happens to come for this particular reason, he can't go. It doesn't seem to me that furthers security at all. O. Peter Sherwood: Because... well, in our experience, at one of our campuses, there was a time, when, under a permit system, people were permitted to operate businesses in the campus quad. The number of people coming on to campus, and actually functioning on campus increased dramatically, because of the ability of students to... of those individuals who are not students, to run businesses on campus. When you have many, many more people on campus, it is more difficult for the University to monitor the campuses... to monitor the campuses. And that's particularly true where you're talking about dormitories, where you have perfect strangers sort of coming and going in and out of the dormitories all the time. It is very difficult for the University to provide security for on campus. Thurgood Marshall: Aren't you being too general when you talk about campuses? You know, it's a little different between NYU and Columbia and Syracuse. O. Peter Sherwood: That's... certainly their location makes a difference, Justice Marshall. Thurgood Marshall: I mean, the public just walks right through. O. Peter Sherwood: Well, if, if, if you view the quad at NYU to be Washington Square Park, I suppose that's correct. But, we're talking here about... this is a University-wide regulation, and we're talking about, for the most part, campuses that are in, in locations where there are... where there is a discrete area set aside as a campus. While we don't want to prevent students from having people come on to campus-- Speaker: NYU has a campus, and Columbia has a campus. O. Peter Sherwood: --NYU-- Thurgood Marshall: But it's in the middle of the city. O. Peter Sherwood: --Well, it's sort of around Washington Square. Washington Square Park is a big park. Thurgood Marshall: Well, Columbia is right on the outskirts of Harlem, and I think that is not a, you know, way off country place. O. Peter Sherwood: That's true. But, even there-- --That's your law school, isn't it? Excuse me? Harry A. Blackmun: I say that's your law school? O. Peter Sherwood: Actually, NYU is, Justice Blackmun. Speaker: That's right. O. Peter Sherwood: But even if... at a place like Columbia, having people operate businesses there increases pretty dramatically the number of people who are strangers, unknown to the University or University officials, coming on to campus. xxx. Anthony M. Kennedy: You gave us the first reason. I'd like to go back. You gave us your first reason for this regulation that it reduces the problem of one student contacting another student for a commercial transaction-- Could you prohibit that directly? O. Peter Sherwood: Could we prohibit directly-- Anthony M. Kennedy: You say it shall be unlawful for one student to contact another student with reference to a commercial transaction. O. Peter Sherwood: With respect to-- In other words to simply talk to another student about having a commercial transaction. Anthony M. Kennedy: Yes. O. Peter Sherwood: I don't think that's covered by this regulation, it says that you can't operate a business-- Anthony M. Kennedy: I'm asking you whether you could prohibit that directly. O. Peter Sherwood: Could we prohibit directly-- Anthony M. Kennedy: One student from contacting a second student about a commercial transaction. O. Peter Sherwood: I believe we could not and do not wish to. Anthony M. Kennedy: Well, then if you can't do it directly how can you argue that it's legitimate for this ordinance to do it indirectly? O. Peter Sherwood: Because the justification... because the justification for this regulation really isn't aimed at the speech itself. I took your question to be can you prohibit speech where your purpose is to, is to prevent the speech in order, because of the content or some related purpose... something related to the context of the speech? Anthony M. Kennedy: --You began by defending the rule as saying that it prevents or diminishes the instances in which one student contacts another student for a commercial transaction. And then, I asked you, could you do that directly, and you indicated that you can't do that directly. Well, if you can't do it directly, then how can you justify this ordinance for that objective? O. Peter Sherwood: Because if you have, as I understand, this... I took your question to be the Linmark situation, in which, could one, for example, prohibit "for sale" signs on the lawn? And, I believe, you can't do that. You certainly cannot do that directly, where the purpose is to affect what is contained on the sign here. What we are seeking to do in this circumstance is... our purposes, our justification for this program, for this regulation, has to do with the secondary effects that it associated with that kind of conduct. We're not aimed at... we're not aiming this regulation at the speech itself. We are really quite unconcerned with whether a student wants to sell something to another student or not. What we are concerned with is speech, plus in person, and in person present on the campus, operating a business. That's what we-- Anthony M. Kennedy: So, then you're not concerned with one student soliciting another? O. Peter Sherwood: --We're not concerned with a direct solicitation between one student or another. Byron R. White: xxx you make sure there's enough time that students have to study? O. Peter Sherwood: Well, we would certainly that... that's so as well, and that is a concern of ours, and there is some testimony in the record with respect to that. However, where we are not, in any sense, seeking to regiment the students... how the students conduct their out-of-class time. William H. Rehnquist: Well, if they don't have a Tupperware party, they could go to the movie. It isn't as if they were going to study for sure, if they didn't have a Tupperware party? O. Peter Sherwood: That's true. They could go to the movie if they want, or they could watch television, or they could do many other things. But, again, the purpose of this regulation really isn't aimed at suppressing speech, as such. We're aiming at some of its secondary effects, which have to do with security concerns that we have, and also the concern for preserving the educational character of the... of the campus. Antonin Scalia: Which includes eliminating commercialism, in and of itself? You want to retain the ivy-hall character of the place, right? O. Peter Sherwood: We would like to retain-- Antonin Scalia: You want to have the campus a place not where business is done, but where academic pursuits are pursued. O. Peter Sherwood: --That's correct. Which goes to our, I suppose, to the second issue that I wanted to discuss this afternoon, and that is, the justification of this regulation as a time, place and manner restriction. Because here, I think it's important to remember that we're not seeking to ban commercial activity. Students and AFS can contact students in their dorm rooms... by telephone if they wish. They can use campus newspapers; they can use radio; they can use mass media. But if they insist on "in-person" sales and presentations, that is banned, and if they want to have that kind of marketing, then they can do that at locations right off the campus. It is the... it's the combination of both speech with the physical presence that is our concern. Speech alone is not the concern that we have. Anthony M. Kennedy: I'm not clear that a time, place and manner regulation is... can be sustained if it's not content neutral. I may be incorrect. Do we have any cases where we sustained a regulation on a time, base... time, place and manner in a regulation and it's not content neutral? O. Peter Sherwood: I believe one of the requirements that this Court has imposed, with respect to time, place and manner restrictions, is precisely that. That it be content neutral, and I would submit-- Anthony M. Kennedy: But, this isn't content neutral. O. Peter Sherwood: --Oh, it certainly is content neutral, because defining what... whether a particular regulation is content neutral or not really goes to the justification that's given for the regulation. Our justification here is not aimed at the speech itself, but rather at secondary effects that may be associated with that speech, and so we are not here... we don't have the Linmark situation, as I mentioned before. Byron R. White: Well, you are just aiming at commercial speech-- O. Peter Sherwood: Excuse me? Byron R. White: --You are just aiming at commercial speech? That's content oriented, isn't it? O. Peter Sherwood: Well, the fact-- Antonin Scalia: And, not even all commercial speech? You make exceptions for cultural events, for dry cleaning, for laundry, for banking, barber, beautician? I think you have to say there's some content discrimination here? O. Peter Sherwood: --Well, again, as I understand this Court's decisions, having to do with content neutrality, you really look to whether or not the justification given for the restriction is aimed at the speech itself or whether it's aimed at some other concern, having nothing to do with speech. Sandra Day O'Connor: I thought you looked at what it did. You have to look at what it says to determine if it's content neutral. What does it prohibit, and what does it not? How else could you interpret it? O. Peter Sherwood: Well, one can, for example, prohibit, prohibit camping, I suppose, in Lafayette Park, where, and what was prohibited there is people seeking to make... to symbolically protest the plight of the homeless. There is some reference to the content of that kind of conduct. But, certainly, the Court, this Court did not thereby say that one could not... that that kind of regulation is one that's not content neutral, as I understand the Court's cases. I would like to-- Thurgood Marshall: How about the Encyclopedia Britannica salesman? O. Peter Sherwood: --Could a Encyclopedia Britannica salesman come on campus and sell? Thurgood Marshall: Uh-hum. O. Peter Sherwood: I believe the answer to that is no. And there, you're, you are talking about the conduct of-- Thurgood Marshall: His job... he's advancing education. xxx allow him to do this. O. Peter Sherwood: --One can argue that he is advancing education. That's true. But what he is doing, in that circumstance, is selling his wares on campus, and this rule applies to solicitations. I should say, with respect to that, again, that none of the Plaintiffs in this case have standing to raise that kind of claim, because it is not addressed to. The only thing... the only harm that these students have complained about, is the refusal of the University to permit them to either host or to listen to AFS presentations. I'd like to reserve the rest of my time. William H. Rehnquist: Thank you, Mr. Sherwood. Mr. Reath, we'll hear now from you. Henry T. Reath: Mr. Chief Justice, members of the Court: I don't... I have the benefit, I guess, because I was trial counsel and I've been with this case ever since it started... that, in that sense, I know a good bit more about the case than Mr. Sherwood. Unfortunately, Mr. Sherwood has made several statements to this Court, as to the underlying facts, that just are not correct. And, I will correct them in due order. The one that I want to address immediately, however, is his contention, that the students in this case... none of the students, at any time, he said, raised the other issues such as the questions asked by Justice Blackmun and others, about the right to have an attorney, the right to have a tutor, and such things as that. Your Honors, at page 10 in my brief, I quote from the testimony of Edward K. Detweller, a student government representative at SUNY-Cortland. 10... "I became interested in this case, because of the infringement upon my rights, my constitutional rights of assembly and speech. " "It bothered me to know I couldn't invite somebody such as an attorney or some commercial person to my dorm. " And, then the same thing was said [inaudible]-- John Paul Stevens: But, Mr. Reath, did he ever... is there any testimony that he ever did invite an attorney to his dorm? Henry T. Reath: --No, sir, there was not, but again Your Honor-- Speaker: It was just a hypothetical concern,-- Henry T. Reath: --Your Honor, understanding issues, Justice Stevens, there are a bulk of cases this Court has said you do not have to run the risk of being arrested or being held in contempt, or your rights at the University being in jeopardy. John Paul Stevens: --Are any of those commercial speech cases? Henry T. Reath: Excuse me, sir? John Paul Stevens: Are any of those cases commercial speech cases? Henry T. Reath: I can't... I can't answer that. John Paul Stevens: So, I mean, there really isn't... there is not an issue as to somebody trying to get a lawyer, who was frustrated, is there? Henry T. Reath: Well, Your Honor, there is an issue. Because what we have, and I'll come to that in just a moment. What we have here, is the way in which the University took a regulation, which on its face said you can't have commercial enterprises on campus, and then totally distorted and turned it around against the students, because if there's one thing that must be made clear, and I think it makes this case so different in terms of the legal impact of this case in Court's earlier case, and otherwise, is this case, Your Honors, is a right to listen case. It involves the students' rights to listen and to invite whoever they want to come into their room. Whether it's a lawyer, whether it's a Tupperware party, whether it's Christmas cards-- William H. Rehnquist: Mr. Reath. Henry T. Reath: --Yes, Your Honor. William H. Rehnquist: Does that take it out of the commercial speech category? Henry T. Reath: Well, I think you could say it does. Because I think that when we have argued... we have argued that in our brief, sir, that-- William H. Rehnquist: And, that is your position here, that this is not a commercial? Henry T. Reath: --No. I say that the Court doesn't have to come to that. Because, either under the commercial speech standard, or under core speech standard, and following the four part test of Commercial Hudson, which is what the Second Circuit did; which is what the lower court did. We prevail entirely under Commercial Hudson. But, to answer your question, specifically, Your Honor, we suggest in the brief an alternate argument, which is... that if you are looking at the right to listen, and that is the right that is involved, as the counterpoint to the right to speak, then the motivation of the listener makes no difference, because-- William H. Rehnquist: Well, that would... that would totally obliterate the difference between commercial speech and what you refer to as core speech-- Henry T. Reath: --I don't think so, Your Honor. William H. Rehnquist: --I haven't finished. Henry T. Reath: Excuse me. Excuse me, sir, I apologize. William H. Rehnquist: There's always going to be a listener for any commercial speech. Henry T. Reath: And, Your Honor, what we're saying is, that the right to listen, as a right, is a one on one. If I, as a student, want to have somebody come to my room to tell me about law, about medicine, or whatever subject I want, I, as a student, have that right, which is the counterpart of the right to free speech. William H. Rehnquist: But, why should it be limited to one on one? Why can't it be a right to listen to a sound truck along with thousands of other people? Henry T. Reath: Well, because that, Your Honor, immediately conflicts with the right of everybody else on the street. And, you can't argue... I mean, I agree with Your Honor, that if you carried that right to listen that far. But, what we're saying is, the right to listen is in a one-on-one setting. Byron R. White: Well, who brought this suit? Henry T. Reath: Your Honor, this suit was brought, initially by one student, Kathleen Rapp, who was the person who was involved in the proceeding. Byron R. White: And, who wanted to do what? Henry T. Reath: He wanted the right to invite and have a Tupperware party in his room. Byron R. White: So, is that the issue? That's the application of this regulation that we're talking about here? Henry T. Reath: Yes, sir. Now, what happened, Your Honor, is that after we had extensive discovery, and it came out, and in answer to one of the questions about... Mr. Sherwood said that there's nothing that prohibits people from selling books and bicycles. Absolutely wrong. The senior person for SUNY-- Byron R. White: Yes, but was there... were there some intervening Plaintiffs? Henry T. Reath: --Yes, sir. Byron R. White: Who? Henry T. Reath: A whole number of intervening plaintiffs. The president of the Student Council, Steven Gawley. Another member of the Student Council. Several people who are very active in campus life, and they all intervened, and SUNY objected to their intervention. Byron R. White: So, what did they... and these other people had other interests, besides having Tupperware parties? Henry T. Reath: Absolutely. And, that's the whole point. And, Your Honor, that's all spelled out in our brief at pages 9 through 11. Sandra Day O'Connor: Well, wasn't the AFS a party? Henry T. Reath: Excuse me, Justice O'Connor? Sandra Day O'Connor: Wasn't the company a party at one time? AFS? Henry T. Reath: They were, originally, Your Honor. And then, what happened-- Sandra Day O'Connor: And, you represented the company originally? Henry T. Reath: --I did represent the company. Sandra Day O'Connor: And they dropped out? Henry T. Reath: And they've dropped out. That's correct. And then, what happened was, that when the students saw the breadth and the scope of the application of this regulation and saw how it applied to an attorney coming into the room, to a medical doctor, to a tutor-- Antonin Scalia: Once they saw how it applied, did any of these intervening Plaintiffs... was any of them turned down in their attempt to get a lawyer? Henry T. Reath: --Yes. Antonin Scalia: In their attempt to get a doctor, or anything like that? Henry T. Reath: Yes. Mr. Fox was turned down. Speaker: What do you mean was turned down? Henry T. Reath: He was the original Plaintiff. The others? Antonin Scalia: Yeah, Yeah, I'm talking about the other ones. Henry T. Reath: No, sir. Antonin Scalia: So, the only actual... the only actual application of this regulation that we have before us, is preventing the Tupperware part? Henry T. Reath: That is correct. But, on the other hand, Your Honor... may I just briefly refer to the Court how this incident started, because, I think, that when Your Honor sees how the incident started, you will understand why the students would be very reluctant to test and challenge the University in the way it interpreted its regulation. Sandra Day O'Connor: Could I just inquire, first of all though, whether the student host was going to earn something by virtue of hosting it? Henry T. Reath: No, Your Honor. The student host-- Sandra Day O'Connor: No credits, or no Florida trip or something? Henry T. Reath: --There was an offer, Your Honor, of a free Florida vacation. That was involved in the case... the testimony also shows that that-- Sandra Day O'Connor: And, some kind of $50 discount? Henry T. Reath: --No, sir. No, Your Honor. Excuse me. Sandra Day O'Connor: No? The record doesn't support that? Henry T. Reath: There were no discounts, no credits. The only... only for someone who had already been a purchaser. If someone had already been a purchaser, and then they hosted a party, they would get a credit. Sandra Day O'Connor: And, the student host earns nothing? Henry T. Reath: Nothing, Your Honor. Sandra Day O'Connor: Nothing? Henry T. Reath: Except the free Florida vacation. Sandra Day O'Connor: Well, that's something, isn't it? Henry T. Reath: Well, well-- Sandra Day O'Connor: I thought that was something. Now, do you think, do you think the University can prohibit students from conducting commercial enterprises in their rooms? Henry T. Reath: --I think they can, but that's not what is involved here. Sandra Day O'Connor: Well, why isn't that a commercial enterprise? Henry T. Reath: This is not a commercial enterprise, because the student is a host... the student is a bonafide host-- Sandra Day O'Connor: Well, the student's earning something for it. Henry T. Reath: --Well, Your Honor, you can say that. Sandra Day O'Connor: Yes. Henry T. Reath: But, that is only one of many instances that is involved in the issues before this Court. William H. Rehnquist: Well, what other instances are involved? I thought your answer to Justice Scalia was that the only area in which this regulation was actually applied was to prevent this Tupperware party? Henry T. Reath: Well, Your Honor, what happened-- William H. Rehnquist: Is that correct? Henry T. Reath: --Yes, Your Honor, but if I can explain that what happened here was, that after the case got started, we tried to find out what was the regulation, how it was interpreted, how it was applied, and who it would apply to. And, the senior person for SUNY, who was presented by SUNY to explain and justify and show what the amendment was and how it worked, was a Mr. Hofstaeder. And, he was questioned. And, I asked him these questions: "Have you ever issued any clarifying bulletins, explaining the interpretations of the words in this regulation? " "No, I have not". "Well, what would be your definition of a private commercial enterprise? " Answer. "It would be an organization that deals in a product, which the end result would be the making of a profit for that group. " William H. Rehnquist: Who is this... you're seeking to give legal content to this regulation by the trial testimony of whom? Henry T. Reath: This is the pretrial testimony, Justice Scalia, of the senior representative of SUNY, who was produced by SUNY as that person who was authorized to speak for and explain the application, and how that regulation was filed. Antonin Scalia: What was his title? Henry T. Reath: Excuse me, sir? Antonin Scalia: What was his title? Henry T. Reath: His title was Assistant Vice Chancellor for Educational Services, and also... he also had charge of security. And he was tendered under Rule 30(b) as the officer who was authorized to speak for SUNY as to how this regulation applied. Now, here's what went on: "What about a service... would a service be included within that definition. " Answer: "If it is a service, outside services we already provide for, yes. " Question: "Supposing there was person who had a private job counseling service, who, for a fee, would counsel students regarding appropriate jobs and job opportunities on graduation, would they be permitted to come on campus, at the invitation of the student to meet with one or more students in the privacy of the student's room to learn about that service? " "No, they would not". "Why is that"? The Answer: "This is already provided". Similarly, I asked this question: "If there was a student, who had been given a small inheritance by an aunt or some family representative, and that student wanted to consult with a lawyer, as to his or her legal rights, and wanted to use his or her dorm room as the place for the meeting.... " Byron R. White: What has this got to do with the issue before us? Henry T. Reath: Excuse me, sir? Byron R. White: What has this got to do with the issue before us? We're trying to find out if this regulation may validly be applied to preventing a Tupperware party? Henry T. Reath: Because, Your Honor, the way the interpret... the way the regulation is applied and interpreted, and they went on to say that it includes any person who seeks to provide information for a profit. Byron R. White: Well, it sounds to me like you're disagreeing with the court of appeals. I thought the Court of Appeals said this was a commercial speech case. Henry T. Reath: The court of appeals did, Your Honor, and we-- Byron R. White: And you're saying, you're trying to say that it isn't at all. Henry T. Reath: --No, I'm saying it is more than a commercial speech case. Byron R. White: Well, yeah, but that isn't-- Henry T. Reath: It is a-- Byron R. White: --The court of appeals that said it was only a commercial speech case. Henry T. Reath: --Well, we will accept that, Your Honor. William H. Rehnquist: Well then, there's no overbreadth doctrine in commercial speech. So, no matter what this regulation might have barred, that never actually happened. If it can properly bar a Tupperware party, that's the end of the case. Henry T. Reath: Well, Your Honors, I believe that this Court has the power to look at and take a practical view of what is the regulation, and how the regulation works. Byron R. White: But, you're going to... if you want to, if you want to have the case decided on a ground that the Court of Appeals didn't use, and if that's going to... you can't do that if it's going to expand your relief, and I would think saying this isn't a commercial speech case but some other kind of a speech case would give you a lot more than you won in the court of appeals. Henry T. Reath: Well, Your Honors, as I've said before-- Antonin Scalia: I have even a greater problem than that. I'm not even sure that if you call it a non-commercial speech case, by seeking to interpret the regulation that way, it makes it such. I'm not sure that our commercial speech cases are doctrine... that you cannot raise overbreadth in commercial speech cases. I think it looks to who the plaintiff is. If the plaintiff is complaining about the restriction of his commercial speech, that kind of a plaintiff cannot use other hypothetical situations in justification of his claim. And, you have here, a plaintiff who is clearly complaining about commercial speech. Isn't that right? Henry T. Reath: --That is right. Antonin Scalia: So, if that interpretation of our overbreadth doctrine is correct, you just don't have any claim for all these other cases you're worried about. Henry T. Reath: Well, Your Honor, there are others who have joined in the suit, who say that we want to exercise these rights. And, what I was trying to say to the Court was, that what happened to the young lady who had appeared on this initial demonstration, and I was about to read that, and if I may take just a second to read what happened. Because, what happened to her that day and the very next day, shows a hostile attitude by the University that is incredible, I think, when you think of what the rights of students are to use their own dorm rooms, within the privacy of their rooms, for whatever purposes they wish, as long it is lawful, peaceful conduct. And here's what happened. She described how she'd come in. She'd been invited by the girls to come to present the party. She called up the night before, said, "Do you still want the party? " "Yes", and she came. And then, a dorm representative came, and said, "You're not allowed to do this; you have to leave. " And she said, "Well, I think that I do have a right, if the girls want me to stay. " And here's what's said. "So, I said to the girls. " and I'm reading now form Joint Appendix 98, "Would you like me to leave? " "I would go gladly, but otherwise, I feel what you are doing is both wrong and illegal. " And then, what happened was, that she had brought the campus policeman down... the campus policeman had come and he said, "You are under arrest. " "Hands against the wall. " And then what happened? What did he do? "The girls were aghast, and my hands against the wall, and then he handcuffed me, and by this time, a crowd of students was gathering, and he marched me out of the dorm, leaving all my things behind, went down to the Public Safety Building and, still handcuffed, they put me in a chair, in the middle of a room, and he said to the one, another policeman, "watch her". " Now, the next day, Your Honor, the next day, Your Honors, she went back. She was very disturbed by this incident. She had been there. The girls had asked her to come. They wanted her to come. They were interested in what she had to tell them about the information and the product that she was offering. And, she said... so, she described what happened. And, she met with one group, and then she said as she was going down the hallway, she said, "They were very indignant about what had happened, and about being in a place where they were denied their constitutional rights. " "And we were talking about it, and they were writing up a petition, when, all of a sudden, down the hall, came two SUNY policemen, marching down the hall, and came up to the door where I had been, knocked on the door, and said. " We understand Katy Rapp is here. "Then, the girls, not knowing what to do, said she wasn't. " And at that point, Kathy Rapp said, "That's not the way to handle this matter. " She said, "And I said", well, this is not the way to conduct this to the other girls in the room. "So, I opened the door, and I said. " You know, here I am, "to the guards, to the policemen. " "Are you looking for me? " "And, he said. " You are persona non grata on this campus. "And, I was told if you were back here, you would be subject to arrest for criminal trespass. " Antonin Scalia: Which is what had happened the previous times? Henry T. Reath: Yes. Now, the point that I think you have to agree, that that is an incredible way to treat a situation-- Antonin Scalia: Well, she may have a tort action for that here. Are you complaining about the excessive use of force? About the handcuffs and all that? That does seem excessive to me. Henry T. Reath: --No, I am not, Your Honor. I'm explaining that under those circumstances-- Antonin Scalia: But the issue is whether she should have left when she was asked to leave. Isn't that the only issue before us? Not the handcuffs, or all of that? Henry T. Reath: --No, I think the issue, Your Honor, is-- Antonin Scalia: Should she have left, when she was asked to leave, because there was a valid regulation? That's the only issue. Henry T. Reath: --And, or did that infringe the student's rights to invite people to come to their room, to use their room as their private space in which to receive information? Sandra Day O'Connor: Mr. Reath, why isn't the regulation somewhat akin to a zoning regulation that's typical in a lot of communities that says you can't conduct a commercial enterprise in your home? Henry T. Reath: I understand. Yes, Your Honor. Sandra Day O'Connor: Now, why isn't that similar? Henry T. Reath: Well, does that say, Your Honor, that if you, or anyone else decided they wanted to have Tupperware party in their one time, on one occasion, that constitutes the conduct of a commercial enterprise that violates the zoning? Sandra Day O'Connor: Well, conceivably, it might. Henry T. Reath: Excuse me? Sandra Day O'Connor: Conceivably, it might. How many times does it take to make it a commercial [inaudible]-- Henry T. Reath: Well, I think it certainly takes more than one. I think it takes more than one. And, here, you have the situation, and as a matter of fact, the record shows that this was a one-time invitation. We asked, in interpreting this regulation, said that, "Supposing a student had a friend who, one of the girls and her daughter... her friend made sweaters. " "And, she wanted to come, on one occasion, and sell those sweaters in the dorm room to other friends. " "Would it be permitted? " "Absolutely not, they said, because this constitutes the operation of a commercial operation, and I say that's absurd. " Byron R. White: --Mr. Reath, I thought one of the issues... the major issue in this case was whether or not the least restrictive means test-- Henry T. Reath: It is, Your Honor. Byron R. White: --is a proper and I can't... I've hardly heard a word about it from either side. Henry T. Reath: All right. May I address that right now, Your Honor? Your Honor will recall that in Zauderer, you wrote the opinion, in which you tracked the four-part test of Commercial Hudson. Commercial Hudson says that the truth... the speech must be truthful, it must be... it must advance the substantial interest, and we don't dispute. Number one, the truthfulness is not involved. They've taken it out of the case. As far as it advancing a legitimate, substantial interest, we concede that. That's not an issue. The third question is-- Byron R. White: What is the interest that you concede? Henry T. Reath: --Excuse me, sir? Byron R. White: What is the interest... that you concede? Henry T. Reath: We concede that preserving the academic atmosphere, or-- Byron R. White: All right. So, you accept that as a substantial interest? Henry T. Reath: --Of course. No question about it. Of course it is. Byron R. White: All right. And, now what? Henry T. Reath: Now, the question, the question then comes as to prong 3 and prong 4. Byron R. White: All right, now, prong 3-- Henry T. Reath: Prong... yes, Your Honor. Byron R. White: --You don't contest that one, do you? Henry T. Reath: We do. And, as a matter of fact-- Byron R. White: Here? You mean this regulation doesn't further that substantial interest? Henry T. Reath: --And, as a matter of fact, Your Honor, the court below found that from the evidence. The court below, the judge, Judge McCurn, found it, and also the Second Circuit averted to it. I can direct Your Honors attention to that finding. Because the one on preserving education atmosphere... Your Honor asked the question about studying. And the testimony was that at SUNY, that there is little or no studying done in the dorm rooms. Nor surprisingly. And, here, Your Honor, and this is why the University has backed off that argument of academic atmosphere. Here's what the handbook says. Here's what the handbook that the University distributes to all the new students... it says, and it's undisputed. "Blaring televisions and bickering statements do not a happier student make. " "Distraction is the most common problem when you study in your room. " "And it is a safe bet that you will accomplish absolutely nothing in your dorm. " Now, the point is... of course, there are ways to preserve educational atmosphere, but, Your Honors, the dorm room, the residential dorm room, is nothing more than a boarding room in a boarding house-- John Paul Stevens: Mr. Reath, do you think the University could prohibit the students from having televisions sets in their dorm rooms? Henry T. Reath: --That's a very interesting question, Your Honor, that I don't think the Court has to meet. Speaker: But, I should think that if they could prohibit-- Henry T. Reath: I can't... I don't believe the University-- Antonin Scalia: --At least we found a question you don't want us to reach, huh? Henry T. Reath: --No, I think, Your Honor, would agree with me that there wouldn't be many universities existing if they had such a rule. I suppose that if they wanted to, to turn their dorm room into a monastic cell, that they probably might have the power to do that. Byron R. White: Maybe they could even keep out Tupperware. Henry T. Reath: If they did everybody. But the point is, that they cannot discriminate, Your Honor. They cannot make a distinction here between social guests and business guests. And, that's what they do without any justification, and Justice White, if I may, that brings us to the fourth prong of the Commercial Hudson, which is what you wanted to hear about. Byron R. White: And, finally, we're there. Henry T. Reath: And, we're there. Thurgood Marshall: Before you get there-- [Laughter] Henry T. Reath: Yes, Your Honor. Thurgood Marshall: Do they cook in these dormitory rooms? Henry T. Reath: I don't believe they can, sir. Thurgood Marshall: Well, what in the world are they using Tupperware for? Henry T. Reath: Your Honor, this is products that are sold on a hope chest concept, whereby the young people... the argument is made to them. "Look, instead of wasting your money on pizzas and movies and junk food, save your money. " "Now's the time to buy... it's not only cookware, it's-- " Thurgood Marshall: Any connection with education? Henry T. Reath: --Excuse me, sir? Thurgood Marshall: Any connection with education? Any? Henry T. Reath: Well, it's very remote, Your Honor. Thurgood Marshall: Miniscule. Sir? Henry T. Reath: The evidence shows... the evidence shows, Your Honor, that in these sessions, there is a lot of informational... a lot of information given about nutrition, about cooking-- Thurgood Marshall: About education? Henry T. Reath: --Excuse me, sir? Thurgood Marshall: Well, do they teach cooking in this university? Henry T. Reath: I'm sorry? Thurgood Marshall: Do they teach cooking in this university? Henry T. Reath: I do not know. I would suspect that at some universities they do. Thurgood Marshall: Well, you said... well, is Tupperware anything else but cooking? Henry T. Reath: Well, Your Honor, it's-- Thurgood Marshall: Do you use Tupperware for anything other than cooking? Henry T. Reath: --Well, Your Honor, we are... we're talking throughout here about what's called a Tupperware type-- Thurgood Marshall: Well, you're going into everything under the sun. Let me get in there, too. Henry T. Reath: --Yes, sir. Your Honor, it's referred to as a Tupperware type party. In fact, the product that was sold here was cookware and china and tableware, the idea being to build up, whether it's a trousseau, or a hope chest concept. Antonin Scalia: You're talking big money. We're not just talking a pot or a pan. What were the amounts that they were getting students committed to... $6,000, I forget the number? Henry T. Reath: They were fairly substantial, Your Honor, $500 to a $1,000. Antonin Scalia: Commercial enterprise... there's no doubt about that. Henry T. Reath: Well, it... again, I-- Antonin Scalia: xxx. Justice White, he'll vote against you if-- --[inaudible]. Henry T. Reath: --Your Honor, the uncontradicted evidence in this case, and this, I'm directing to Justice Stevens, and the question of the least restrictive test of Central Hudson. Because, Your Honor, in Zaucerer, and I might point out-- Byron R. White: Well, that isn't what... that isn't what Central Hudson said. It didn't say the "least restrictive". Henry T. Reath: --Not Central Hudson didn't, Your Honor, but the... you said it-- Byron R. White: Let's talk about Central Hudson. Henry T. Reath: --Well, I was talking about Zauderer. Zauderer is... Central Hudson says the least restrictive. Byron R. White: But Central Hudson says "narrowly tailored". Henry T. Reath: Excuse me, "narrowly tailored", or that is not-- Byron R. White: That isn't the same thing. Henry T. Reath: --A less restrictive measure... a less restrictive measure will do. Now, Your Honor-- Byron R. White: Is that what Central Hudson said? Henry T. Reath: --Yes, sir. Byron R. White: I thought it said "narrowly tailored"? Henry T. Reath: "Narrowly tailored", and it also talks about a lesser restriction. Now, Your Honor, in Zaucerer-- Byron R. White: Well, you don't think that "narrowly tailored" means the same thing as "least restrictive", do you? Henry T. Reath: --I think it does, Your Honor. And, I would remind the Court that in the Central-Hudson test, Your Honor, was "no more extensive than necessary". And, if it's to be no more extensive than necessary, the counterpoint to that, I submit is, the least restrictive, and that's precisely what this Court said in Zauderer. And, may I read, Your Honor, from the Court's opinion, which, which Justice White, you wrote. And there, they were talking about the ban of the state bar on commercial... on commercial illustrations, and what the Court said was, "The burden is on the state to present a substantial government interest, justifying the restriction as applied to appellant, and to demonstrate that the restriction vindicates the interest through the least restrictive available means. " Now, the evidence shows here, Your Honor, that the overwhelming majority of colleges and universities in the country solved this problem in a very simple way. They say, "we will let the students decide. " and may I read to the Court from the rule that is followed in the University of Illinois, which is representative of the rules that are used in the mainstream of the universities throughout the country, and here's what it says, and it's so simple. It's easier to read than it is to try to summarize. And it says this,... now, wait a minute, I'm sorry, where is it... where is the rule? The essence of the rule is this: "One, we will not allow any itinerant peddlers on to roam the halls. " and we support that. No peddling or uninvited solicitation, that is out. Here it is. I'm reading from the record at JA-93. "Sales representatives of commercial activities are not allowed to go door to door. " We support that. That's the right, we believe, the right way to handle it. "Call your resident advisor, or area office if you see one in your area. " "However, you may invite a sales representative to your room to see you, as your personal guest, if your roommate agrees. " And then it goes on to say, "University property cannot be used for commercial enterprises. " Now-- Antonin Scalia: Mr. Reath, that may be fine for some universities... maybe most of them prefer that. But, maybe SUNY wants to have a stricter rule, just as some parents might want to send their children to universities that have no parietal restrictions, whatever... that allow visitors in dorms of male or female, at any hours. Other colleges don't. Now, you made a statement, earlier, that the students were upset that this deprives of their right to have a visitor in their room. Whatever visitor they want. Are... doesn't the college have any... have any power to establish in dormitories, in which it's acting, in loco parentis, for minor students, for many of these colleges, certain reasonable rules? Henry T. Reath: --Absolutely. Antonin Scalia: And may that not vary from one college to another? Henry T. Reath: Absolutely, Your Honor. And, we made that very clear in our brief, and I make it very clear to this Court. We do not challenge the University's right to have reasonable restrictions on dormitories in use. What the University cannot do is to prohibit lawful speech. They cannot prohibit lawful speech in the dormitory rooms. If you think about it, a dormitory room is the student's home. It is the only place where the student can retire for the peace and privacy, and that is the place where the student says, "I want to have the right to invite people of my choice, to speak on topics of my choice, without the University putting its ear to the keyhole and without saying,. " "Oh yes, you can come, but the moment that you start talking anything other than social activities, the moment you start talking about commercal activities, out you go. " And, that's not right, Your Honor. Thurgood Marshall: Could they set up a securities and exchange office? Henry T. Reath: Excuse me, sir? Thurgood Marshall: Could they set up a securities office? Henry T. Reath: Absolutely. Thurgood Marshall: To sell securities? Henry T. Reath: Absolutely. Thurgood Marshall: You think so? Henry T. Reath: And in fact, Your Honor, the record-- Thurgood Marshall: And that they couldn't stop that? Henry T. Reath: --They have every right to do that. They should do that. Thurgood Marshall: You think so? Henry T. Reath: The record shows, Your Honor, that in over half of the SUNY universities and colleges, they have a checkpoint system, but they still-- William H. Rehnquist: No, Justice Marshall is asking about stock, securities-- Henry T. Reath: --Excuse me, sir? William H. Rehnquist: --Stock, securities. Not security... securities. Stocks and bonds? Henry T. Reath: Oh, excuse me, sir, I'm sorry. And, the question was, can... could they sell them? Thurgood Marshall: Yes. Henry T. Reath: Not at the state campus. Thurgood Marshall: Well, what do you say? Henry T. Reath: I think that if the state-- Thurgood Marshall: Do they have a right to? Henry T. Reath: --I think they have a right to receive somebody. To hear their proposition, whether they are selling Christmas cards, or silk stockings, or securities. Thurgood Marshall: xxx get to the end. Horse race betting. Henry T. Reath: Well, I'm not sure how that would fit into this? Thurgood Marshall: Did you have any trouble with it? Henry T. Reath: Well, Your Honor, if it's a lawful activity, they have a right to have speech relating to the lawful activity. And, I think that's the position we take. William H. Rehnquist: Thank you Mr. Reath. Mr. Sherwood, you have one minute remaining. O. Peter Sherwood: I just wanted to say one thing. This regulation has been around for over 20 years, and there's no evidence anywhere in this record, that that regulation has ever been used, or applied to pure speech on any SUNY campus. Thank you. William H. Rehnquist: Very well. The case is submitted.

William H. Rehnquist: We will hear arguments first this morning in No. 85-1581, Solorio against the United States. Mr. Bruce, you may proceed whenever you're ready. Ribert W. Bruce, Jr.: Mr. Chief Justice, and may it please the Court: The question presented in this case is whether the offenses committed by the petitioner, off base and off duty in Juno, Alaska, are subject to court martial jurisdiction. The Court of Military Appeals decision in this case should be reversed for two reasons, which I'd like to discuss. First, the facts of this case do not establish a service connection. Second, the Court of Military Appeals found that there was court martial jurisdiction in this case because it employed an erroneous and deficient service connection test. This Court has recognized that the special needs of the military justify a unique military justice system. But it has also recognized that court martial jurisdiction should be limited to the least possible power adequate to the end proposed. In this Court's O'Callahan and Relford decisions it has limited court martial jurisdiction by requiring that a service connection be established before a service member can be tried for civilian type offenses committed off base. This purpose of this service connection requirement is to balance the interests of the service member in the greater protections of a civilian trial against the military interest in trying the case at a court martial. The criteria-- Harry A. Blackmun: We're speaking only now of the alleged Alaska offense, are we not? Ribert W. Bruce, Jr.: --That's correct, Justice Blackmun. Harry A. Blackmun: Not the New York ones. Ribert W. Bruce, Jr.: Not the New York offense. Harry A. Blackmun: Had the Alaska authorities indicated any interest in prosecution? Ribert W. Bruce, Jr.: The Alaska... the Alaska authorities have given a tentative deferral of the prosecution to the Coast Guard. But there were also indications of interest on the part of Alaska in the record. In the record it indicated that Alaska was continuing to investigate allegations of charges against others daughters of civilians in the community there. And there was also a message from the Coast Guard that indicated that the State of Alaska had previously, and fairly recently previously, prosecuted Coast Guardsmen for similar offenses. Harry A. Blackmun: But these particular victims and their fathers are no longer there? Ribert W. Bruce, Jr.: That's correct, Justice Blackmun. The criteria that are relevant to the balancing test have been limited so that the infinite permutations of possibly relevant factors will not cause confusion about the proper limits of court martial jurisdiction. And the outcome of the balancing tests depends on the facts in each case. In this case there's no military interest that outweighs the petitioner's interest in the greater protections of a civilian trial. Now the limits on court martial jurisdiction are not based solely on the facts, the fact that court martials do not give service members all of the protections they would receive in a civilian trial. The military justice system was created to serve a fundamentally different purpose than the purpose of civilian courts. The military justice system is a tool for maintaining discipline in the military. And another reason for limiting court martial jurisdiction is the historic disapproval of trying ordinary crimes at court martial. William H. Rehnquist: Well, you say historic disapproval. I mean, O'Callahan, decided, what, '68, '69, was a departure from virtually a century of precedent. There was no disapproval prior to O'Callahan. Ribert W. Bruce, Jr.: Well, the O'Callahan decision basically goes through the history, especially at the time of the founding of this country, and also the history of our English ancestors, and basically states that there has been a disapproval of generally trying civilian type offenses by court martial. William H. Rehnquist: Well, certainly not in this country. Look at all the cases that O'Callahan impliedly overruled from this Court. Ribert W. Bruce, Jr.: Well, that... it did perhaps impliedly overturn these decisions. But it was part of a-- William H. Rehnquist: Well, then where do you get your historic disapproval from in this country? Ribert W. Bruce, Jr.: --Well, even after the founding of this country, O'Callahan seems to indicate that there was a period of time when in this country most ordinary offenses were not tried by court martial. And certain for a court martial... to try to court martial a dependent or a military contractor for an ordinary type of crime would be disapproved. William H. Rehnquist: Disapproved by whom and when? Ribert W. Bruce, Jr.: Well, it would be disapproved by this Court. This Court has decided-- William H. Rehnquist: Before O'Callahan? Ribert W. Bruce, Jr.: --As I say, I believe that the founding fathers had a... and the history of our ancestors in England indicate-- William H. Rehnquist: Well, do you think then the early cases from this Court didn't properly reflect this view of the founding fathers? Ribert W. Bruce, Jr.: --I don't think the early decisions of this Court directly addressed this particular issue. William H. Rehnquist: I think your statement, there's a historic disapproval in this country, simply isn't supported by those early cases. I mean, O'Callahan was a sharp departure from the precedents of this Court, I think. Ribert W. Bruce, Jr.: Well, it was an extension, I believe, of some cases that had started to limit jurisdiction over people like military contractors and dependents. The Court of Military Appeals did not apply this Court's Relford service connection analysis in this case. It totally ignored, or unjustifiable minimized petitioner's interest in the greater protections of a civilian trial. But even so, if the Court of Military Appeals had applied the Relford criteria, it would have found that the service connection question here isn't even close. The facts of this case simply do not show significant impact from these offenses on the Coast Guard. The petitioner in this case is an enlisted man in the Coast Guard. At a court martial convened at the Coast Guard base on Governor's Island, he was charged with 21 specifications alleging sexual molestation of four girls. Fourteen of the specifications alleged offenses against two of the victims committed off base and off duty in Juno, Alaska. These are the offenses that the trial judge dismissed for lack of a service connection. The seven remaining specifications alleged offenses against two different victims on base at Governor's Island. Jurisdiction over these offenses has never been contested. All of the victims are the daughters of Coast Guardsmen. The government has tried to establish a service connection in this case by asserting every imaginable impact on the Coast Guard that could possibly result from the effect of these offenses on the victims and their fathers. Factually, however, the government was unable to prove any significant or direct impact on the Coast Guard at trial. As the trial judge properly found, any impact was remote or indirect, and any military interest in these offenses could be adequately vindicated in a civilian trial. When make-weight arguments concerning nondispositive factors are stripped away from the Court of Military Appeals' decision, it's clear that it's based entirely on the dependent status of the victims. The Court of Military Appeals did discuss two other factors that are unrelated to the dependent status of the victims, that is, the pendency of other court martial charges, and the difficulties that the State of Alaska might face in prosecuting the petitioner. These are simply make-weight arguments, however. They have nothing to do with the impact of these offenses on the Coast Guard. And factors such as these are too easily manipulated and too far removed from the real interests that should be balanced to be helpful in setting clear limits on court martial jurisdiction. Because of the dependent status of the victims, the Court of Military Appeals also discussed the nature of the offenses and the age of the victims. It found that these offenses made the fathers less effective and unwilling to serve with the petitioner in the future. From this it inferred that their units would suffer some less of morale. This overstated and rather unlikely loss of morale is really the only direct... arguably direct impact on the Coast Guard that the Court of Military Appeals discussed. Other impacts-- Antonin Scalia: Mr. Bruce, could you give me another example, the one that you would consider the closest, where a threshold question of whether the Court has jurisdiction over the matter is to be determined on the basis of, what do we have, 21 factors, and I assume that they're not exhausted? Is there a comparable area of the law where we've gotten ourselves into that kind of a fix, that you don't even know what court is supposed to dispose of the matter until you engage in the kind of balancing test that you're talking about? Ribert W. Bruce, Jr.: --Offhand, Justice Scalia, I can't think of one. But that doesn't mean that there aren't others. Another problem with this inference that... based on the impact of these offenses on the victims and the fathers, is that these kind of inferences can be drawn from any serious offense against a dependent victim. Therefore, holding that these kind of factors are significant is tantamount to holding that the dependent status of the victim by itself is sufficient to establish a service connection. But basically, whether or not the Court of Military Appeals' decision is viewed as resting entirely on the dependent status of the victims, or other factors, it should be reversed because it relied on an erroneous service connection test that did not require proof of a military interest, or that that military interest outweighed the petitioner's interest in a civilian trial. The Court of Military Appeals' decision glossed over the fact that the trial judge applied all of the Relford criteria in this case, and didn't find a single one that supported service connection. Byron R. White: xxx speaks of the military interest in so many words? Ribert W. Bruce, Jr.: Well, I think O'Callahan and Relford, and also this Court's Schlesinger decision, all imply that there's a balancing here between the military's interest in prosecuting a case, and the service member's interest in trial at a civilian court. Byron R. White: But they don't... they don't really say that, do they? Ribert W. Bruce, Jr.: Justice White, that's my reading of the cases. Byron R. White: Do you find the words, military interest, in the O'Callahan? Ribert W. Bruce, Jr.: No. sir, I think the closest-- Byron R. White: Or the word, balance? Ribert W. Bruce, Jr.: --I think the closest that comes to that is perhaps language in Schlesinger that basically summarizes the service connection test, when it indicates that there should be a unique military interest that can't be adequately vindicated in a civilian court. Now, admittedly, that's just a summarization. It's a kind of a shorthand, and doesn't take in all of the factors that have to go into the test. But I think it indicates that that's where the good... the crisis comes. Byron R. White: So you don't... I take it you're not urging that there must be some finding that military discipline will be disturbed, or interfered with? Ribert W. Bruce, Jr.: I think that's one of the main justifications-- Byron R. White: But not essential? Ribert W. Bruce, Jr.: --Well, the other one would be something that affected a-- Byron R. White: Well, is it essential or not? That's my question. Ribert W. Bruce, Jr.: --No, sir. The other thing that would-- Byron R. White: Well, that's all I really asked. Ribert W. Bruce, Jr.: --Yes, sir. The other thing that would trigger it would be an impact on the mission of the military. I think something that affected discipline or the mission of the military would justify court martial jurisdiction. The-- William H. Rehnquist: Well, is that just a restatement of the service connected language in O'Callahan, or is that a narrowing or a broadening of O'Callahan? Ribert W. Bruce, Jr.: --I intended it to be just a restatement of the language in O'Callahan. Byron R. White: xxx offsenses had occurred on the base, would there be court martial jurisdiction? Ribert W. Bruce, Jr.: I believe that under the Relford decision, if they had occurred on a military base, there would be court martial jurisdiction. Byron R. White: Even though the victims were the same? Ribert W. Bruce, Jr.: That's correct, Your Honor. Byron R. White: And... all right. What if the victims were not related to military personnel? Is the base factor alone enough? I mean, I thought the base factor was just one of the 12. Ribert W. Bruce, Jr.: I think that the Relford decision has indicated that a crime of violence or that violates property on a military base may be sufficient to justify service connection. Byron R. White: May or is? Ribert W. Bruce, Jr.: Is, excuse me, Justice White. The service connection analysis applied by the Court of Military Appeals is not bound by the result that this Court's service connection... this Court's Relford service connection analysis requires. Rather, it seems that any military interest is sufficient to outweight the petitioner's interest in a civilian trial. The Court of Military Appeals seems to have embraced the position of one writer who suggested that the imagination of the prosecutor was the only limitation on court martial jurisdiction now. The Court of Military Appeals service connection analysis is so flexible, it's meaningless. It permits military courts to base jurisdiction on any single factor or combination of factors, tangible or intangible, proven or presumed. It invites the confusion that this Court has eliminated by its remarkably clear Relford decision. The Court of Military Appeals analysis doesn't set any limits-- Antonin Scalia: xxx divided up argument with the amicus, but is either you or the amicus going to address the portion of the Solicitor General's brief that urges that if we agree with you, that the factors in Relford were not met, that we should overrule Relford and O'Callahan? Ribert W. Bruce, Jr.: --Yes, sir. Antonin Scalia: Because if the amicus is not going to address that, I'd like to talk to you about it. Ribert W. Bruce, Jr.: Justice Scalia, I believe Mr. Fidell is going to address that point. The Court of Military Appeals analysis doesn't set any limits on the factors that can be considered. It sets the law of service connection back to the time before the Relford decision when there was concern that the infinite permutations of possibly relevant factors would cause confusion about the proper limits of court martial jurisdiction. This Court's Relford decision is especially clear and helpful. It sets out an analytic framework based on definite criteria. Those Relford criteria should be the touchstone for any service connection analysis. Even accepting for argument's sake that those criteria are not exhaustive, that doesn't justify the Court of Military Appeals ignoring the Relford criteria and deciding the service connection question in this case solely on the basis of a few other factors. If there are no other questions, I'd like to reserve the remainder of my time. William H. Rehnquist: Thank you Mr. Bruce. We'll hear now from you, Mr. Fidell. Eugene R. Fidell: Mr. Chief Justice, and may it please the Court: First, if I may respond briefly to a question that Justice Blackmun raised during Commander Bruce's presentation. On page 57 of the Joint Appendix there is a stipulation that indicates that if the Coast Guard were to determine that the court martial were without jurisdiction to prosecute the Alaska offenses, the district attorney's office would reconsider its decision not to prosecute. So that there's no sense in this case that the state has washed its hands of the matter. It's simply waiting to see the outcome. There are, we submit, no reasons to reconsider the O'Callahan and Relford cases. There are three possibilities that might lead the Court, as a conceptual matter, to reconsider one of its prior decisions. One would be, for example, if it proved that the historic data on which an earlier decision had been predicated were incorrect or incomplete. The government has pointed to nothing in this case that cast doubts on the historical materials that were presented earlier. And we know of nothing we can add to what was before the Court when O'Callahan was decided. A second factor that might lead the Court to reconsider a prior determination would be if the test had proved to be unworkable. But that also is not the case with respect to the O'Callahan and Relford decisions. The O'Callahan and Relford decisions, though they've generated some decisions, some decisional law, in the military, and in the Article III courts, have not presented a substantial problem. William H. Rehnquist: Well, one reason to reconsider O'Callahan would be if we simply felt it was wrong as a matter of constitutional law. And of course those questions are open. Eugene R. Fidell: That question obviously is always on the table, Mr. Chief Justice. And yet I would submit that the decision is not wrong, and certainly not so clearly wrong that it would lead the Court to overturn a precedent that has-- William H. Rehnquist: It has to be clearly wrong, rather than just wrong, before we overrule it? Eugene R. Fidell: --I think it should be very clearly wrong. But be that as it may, I don't think this is clearly wrong. I don't think it was wrong at all, in fact. I think the Court was on good ground. And I frankly think that subsequent history has proven the Court's judgment to have been a profoundly wise matter. Antonin Scalia: Mr. Fidell, you say that it hasn't created any decision problems. The briefs all address the problem of drug offenses. And I gather than the Court of Military Appeals has taken the position that drug offenses are automatically related, wherever they occur, and so forth; is that right? Eugene R. Fidell: Not quite, Justice Scalia. The position of the Court of Military Appeals with respect to drug offenses... which obviously are not this case; there's nothing in the record about drug offenses, effect of drug use on the performance of duty and so on, so it's not really an appropriate vehicle to get into that, and I think there will be an appropriate vehicle. But the position of the Court of Military Appeals has varied over the years, basically, as I read the precedents, as the membership of the court has changed. For some time there was a per se rule in the Beaker case, and that was overruled in 1976. There was a subsequent rule. At the moment the rule is not a 100 percent any drug case, there's a service connection. Antonin Scalia: Not at the moment, but it has been? Eugene R. Fidell: For awhile, but that was departed from-- Antonin Scalia: Well, here's my problem with it. O'Callahan and Relford being constitutional decisions, every case has to decide the jurisdictional question on the basis of a rational line, is it... does it so much affect the military and so forth. That's a very difficult process, and it's very fact bound. Now, if we said that it isn't a matter of constitutional law, that it's up to the Congress, if Congress doesn't want all of this stuff in the military courts, they can take it out and they can adopt a clear line that says, all drug offenses will be tried... by military personnel will be tried in military courts. One cannot arrive at any clear lines by constitutional interpretation on a question of jurisdiction that, to the extent possible, ought to be clear. Eugene R. Fidell: --Well, if Congress had taken the matter in hand, it might be a different question. But they haven't taken it in hand, and it wasn't appropriate in fact... it's not appropriate, I think-- Antonin Scalia: Well, they couldn't take it in hand, once we tell... once we tell them it's a constitutional point. Eugene R. Fidell: --Yes, that's correct. But I would quarrel with the assumption that there has been a substantial problem in terms of understanding the parameters of what the O'Callahan decision and the Relford decision say. Antonin Scalia: I don't know what I would do with a particular drug offense. And I think it to be very difficult to say, as a constitutional matter, whether all drug offenses are in or out. It seems to me a hard point. Eugene R. Fidell: Well, but it's a point that the Court of Military Appeals, and the other military courts, have been grappling with. The law grows. The military courts are in this sense no different from any other court under the Constitution, that it grows as a decisional matter, and with increasing experience, and as more is learned, for example, about the science and the toxicological aspects of drug use... all of which I feel somewhat uncomfortable about discussing in this case, because this is not a drug case, and I don't think this should be... okay, I think we understand one another. Byron R. White: xxx about the forgery and fraud cases? Eugene R. Fidell: You're think, I think, Justice White, of the Lockwood case. And the problem with the Lockwood was, a chain of events that began on case, and had to do with the larceny of a wallet on base, and the larceny and use of a government identification card. So far, we have no problem with what the Court of Military Appeals did in that case. It's what they said in that case that gives us a lot of trouble. And that, I think, was where the train went off the tracks in terms of the O'Callahan and Relford analysis. That was the beginning of the substantial confusion as to what O'Callahan and Relford said. Indeed, I don't think there was confusion, and I don't think there's confusion now. It takes only a page and a half, in the manual for courts martial, for the President to furnish a restatement of the law of service connection. It's not a confusing area. It was pretty much established by 1970, particularly as regards the specific narrow issue in this case, which is, is it enough that the victim happened to be a dependent. Antonin Scalia: Well, you could restate the law of torts in, you know, a couple of lines. [Laughter] That doesn't make it clear, does it? Eugene R. Fidell: I'd need more time. [Laughter] Antonin Scalia: xxx anything that a reasonable man wouldn't do. [Laughter] Eugene R. Fidell: But the problem... the problem, Justice Scalia, it might be my last clear chance. [Laughter] I'd like to point cut that there are some anomalies that flow from the decision of the Court of Military Appeals. For example, how can it be... and I'm referring here to the notion of the nonbase base... how can it be that the less base the Coast Guard has in Juno, the greater the district commander's responsibility for his personnel? That's an irrational outcome. Or why should it make a difference to look, for example, at the danger to morale, why should it make a difference for purposes of military jurisdiction, whether or not the victim is a dependent of a member of the Coast Guard or a dependent of a member of the Navy? Many towns are both Navy towns and Coast Guard towns. Or why should it make a difference if the victim was a dependent of a member of the Coast Guard, but assigned to some other unit where the morale issue wouldn't take place. And indeed, I'd like to draw the Court's attention to another point in the Joint Appendix. There was testimony on page 101: Would the reputation of the Coast Guard be enhanced if the Coast Guard turned the individual who is charged over to the Alaska state authorities? And the answer from a government witness was, I think it would, yes. And that's the answer to the problem. If you have a concern that people in the Coast Guard are going to feel angry that their... let's call them shipmates, even though they work in a federal building... are going to escape punishment, that would be one thing. But there's no issue of that here. What people, according to that witness, want, is they want to make sure that the Coast Guard is going to assist the local authorities who have primarily jurisdiction for law and order in the community. That's where these offenses in Juno took place. And the only problem was that if somebody misled the district attorney in thinking there might be court martial jurisdiction here and that maybe he wouldn't have to prosecute this case, a disservice was done to that district attorney. And it's a disservice that's easily remedied. I would like to, if I have a moment, comment briefly on the Bouie and Marks issue, only to suggest that Solorio was deprived of two things of value by the decision of the Court of Military Appeals. Number one, he was deprived of a complete defense to the court martial, because the Court of Military Appeals changed the rules on him. Number two, because the U.S. and Alaska are separate sovereigns, the punishment is additive; it is cumulative. The consequence is that the net punishment for which Solorio was exposed... is exposed... has been increased on him. And that is a black letter violation of ex post facto analysis. I would also comment that there's no notion here about reliance interests being frustrated. Reliance plays no role, in our submission, on this issue. Suppose, for example, an accused was ignorant... subjectively ignorant... of what the punishment was for a particular offense. William H. Rehnquist: You're now using up your colleague's rebuttal. Eugene R. Fidell: Thank you, Chief Justice Rehnquist. And then his offense was committed, and thereafter the legislature changed the penalty. Can there be any question but that that violates the ex post facto clause? Thank you. William H. Rehnquist: Thank you, Mr. Fidell. We'll hear now from you, General Fried. Charles Fried: In this case... thank you, Mr. Chief Justice, and may it please the Court: In this case, petitioner was convicted of preying sexually on the young daughters of fellow servicemen, on and off base in Alaska and New York. The Coast Guard Court of Military Review and the Court of Military Appeals found that such charges were sufficiently service connected to justify trial by the military authorities. Harry A. Blackmun: The military judge, however, found otherwise? Charles Fried: That is correct, Justice Blackmun. Antonin Scalia: Was it on base in Alaska? Charles Fried: In Alaska it was off base-- Antonin Scalia: Off base in Alaska; on base in New York. Charles Fried: --in New York, the offenses were on base. Harry A. Blackmun: But the New York offenses are not at issue here? Charles Fried: They are not at issue here. They are relevant to our consideration, Justice Blackmun, because one of the reasons that it is appropriate to have... to have military trial here is so that the whole set... the whole set of offenses can be disposed of in one proceeding. The power of Congress to prohibit and to provide for court martial jurisdiction of such offenses is the power in the Constitution to make rules for the government and regulation of the law and naval forces. The exception, in the Fifth Amendment grand jury clause, for cases arising in the land or naval forces, is not so much a grant of authority as an acknowledgement that that congressional authority was there in Article I of the Constitution. Until O'Callahan, it was quite clear, and was restated many times... in the Reid v. Covert case, in Toth v. Quarles, in Kinsella v. Singleton... that, and I quote here from Singleton, the test for jurisdiction is one of status, whether the accused can be regarded as falling within the term, land or naval forces. That is the language of Article I. O'Callahan added to this test an additional requirement: the the crime be service connected, in what this Court characterized as a clear break with the past. Taking this case at its narrowest, we ask the Court to affirm the judgment that the tendency of such crimes is sufficiently poisonous of military morale, and for the indispensable relations of trust which should obtain between service members, that they satisfy the O'Callahan test, and are indeed service connected. We submit that taking the paraphrase, the expansion of O'Callahan, in Councilman in the 1974 term, gauging the impact of an offense on miliary discipline and effectiveness, that the O'Callahan test is amply satisfied here. The argumentation by petitioner and amici have taken us far afield from this simple truth about this case. Particularly, they make rather heavy weather of the Relford decision and its 21 criteria. And I think they miss the point about what Relford represented in the law when Relford came along after the shock to the system which O'Callahan represented. Relford was decided two terms after O'Callahan, and performed the signal and the clarifying service of laying down a categorical per se rule: all offenses by service members on base, the serious offenses, are subject to court martial jurisdiction. So what you had there was a per se categorical rule. That's the principal effect of Relford. Now in order to justify and to explain that rule, and further to give guidance because the Relford Court said that that per se rule marked an area, perhaps not the limit, in order to give further guidance, the Court did lay dawn, in addition, 21 factors. What petitioner and amici due is to overlook the fact that Relford laid down a categorical per se rule of the sort we seek here. And to suggest that each case requires the courts to solve a system of equations in 21 unknowns before they have jurisdiction, that it seems to me turns Relford on its head. We urge, first of all, that on its individual facts, and second, as a categorical matter, that this case and cases like it, which involve serious depradations against military defendants by members of the Armed Services be admitted within the limits set out by Relford, and that this be done by a per se rule such as Relford itself set out. First of all, it should be noted that in Relford the status of the victims as persons connected to the Armed Forces... there was a military defendant there... was specifically mentioned by the court. Second, it would be, we think, an anomaly to be concerned for the integrity of the topographical limits of the command, and to overlook the fact that the integrity of a command is after all an integrity of an organization of people. But there is, as Justice Scalia has pointed during the petitioner's argument, the looming problem of off base drug offenses. This is not a drug case, to be sure. But the issue is, has the Court of Military Appeals Trottier decision in 1980, which creates again a categorical rule for off base drug offenses, with very little exception, is that an improper understanding of this Court's jurisprudence? If it is, then the very successful approach to drug offenses which the military has had is cast in doubt by the kind of procedure, by this complex eschewing of any kind of categorical approach which the petitioners urge on the Court today. Finally, we urge that the Court fulfill the work of Relford by returning the law to what it was when it was announced in such landmark decisions as Reid v. Covert, Toth v. Quarles, Kinsella against Singleton, and throughout the whole history of our Constitution, which is that service... that membership in the service was a sufficient condition for court martial jurisdiction. Harry A. Blackmun: You want to go back, then, to the old status argument? Charles Fried: We do indeed, Justice Blackmun. We think that returning to the status argument as it was announced in cases like Reid and Toth and Kinsella, which were, after all, greatly concerned with the civil liberties issues which concern the petitioners, going back to that rule would be no violent unsettling of the law at all. It was O'Callahan-- Harry A. Blackmun: It would merely overrule O'Callahan, and with it Relford, of course. Charles Fried: --It would overrule O'Callahan. Relford started a process of narrowing O'Callahan, and it did so in a very substantial way. Because it set down that per se categorical rule for all on base offenses by service members. And the point about O'Callahan is that if we pull this one thread, which we think is a bad thread in the fabric, it would require no unravelling of the fabric of the law. There has been only one decision since O'Callahan in which this Court once again considered the service connection decision, and that was Relford, which was a considerable narrowing... I would say taming... of O'Callahan itself. And indeed-- Antonin Scalia: General Fried, before you go further on the constitutional point, let's assume we stand by Relford. I don't understand why you think it affects military discipline or morale if... let's say I'm an officer on a base, and I learn that another officer or enlisted man for that matter is a child molester. Now I can understand how that might affect military discipline or morale. But I don't know why it would affect it any more if I found out that, moreover the child that this officer or enlisted man molested, was a military child; not on the base... somewhere else. Why would that have any incremental affect whatever upon the morale of the unit? I mean, the fact that you have a child molester in the unit, I can understand. But what difference does it make that the child is the child of another serviceman? Charles Fried: --It seems to me, Justice Scalia, to make an enormous difference. Because we are talking about the esprit and the sense of comradeship which is supposed to obtain within the military services. So preying upon dependents of your fellow service members, in addition to being a pretty deplorable offense, is an offense to the relation of trust and comradeship which is supposed to obtain within the military services, and is an indispensable condition of the kind of morale and trust which is supposed to obtain among people who serve on ships together, whose lives depend on the exact performance of duty. It seems to me that that comradeship is an important factor; not an irrelevance. And was so judge to be by the Court of Military Appeals. That's the best answer I can offer to you. It was thought to be a powerful one by the courts below. Antonin Scalia: So he's a thief, but he doesn't steal from his comrades. That's enough? Charles Fried: Stealing from his comrades does aggravate the offense, and does indeed implicate the concerns of the military, is the argument we are submitting; that is correct, Justice Scalia. It should be noted, and it's a matter of very great importance, that the O'Callahan decision, on its own terms, is by now at least obsolete. O'Callahan was tried... although the case was decided in the '59... '68 term, O'Callahan had been tried in 1956 under the 1950 Uniform Code of Military Justice. That Code has been twice revised since O'Callahan was tried, and important changes have occurred in 1969 and again, in 1983. The most important of these changes were, first of all, to remove, both organizationally and in terms of evaluation, the military judge and the defense counsel from the command and from the designation by them convening authority. They no... the convening authority no longer picks the military judge, as he did in O'Callahan's time; no longer picks the defense counsel. That has been taken out of their hands. Furthermore-- Antonin Scalia: What if they change back? Do we then change our constitutional interpretation once again, and go back to O'Callahan? Charles Fried: --I would think not. I would think not. However, the... what O'Callahan did indeed depend on was a description of the military justice system which simply is not a correct description of the military justice system as it now obtains. It may be, Justice Scalia, that if the rule we propose, which is the pre-O'Callahan rule, of status only, were to be reinstated, aspects of the military justice system would be subject to review, not on jurisdictional grounds, but on due process grounds. Indeed, the question of command influence, which has been very significantly address by both Congress and regulation since O'Callahan has been tried, are issues which have been brought to this Court, and which as recently as yesterday, the Court denied certiorari in cases raising that issue. So it's not as if the O'Callahan concerns might not be addressed. We suggest that they are not appropriately addressed in terms of a jurisdictional line. In fact, the very best example, the very best testimony for the current state of military justice, the independence and the zeal of the defense function, has been the defense of this case in the courts below and in this Court, both in the oral and written presentations. It seems to us that a system which nurtures such a system of advocacy against the extensions of its own authority cannot be fairly described, in Justice Douglass' mysterious term, as responding to the age-old manifest destiny of retributive justice. It seems to me that we have seen exemplified here is a system of justice pure and simple, and that the congressional determination of what the jurisdiction of that system of justice is, the congressional determination and the determination of this Court, up until O'Callahan, should be the determination that spells the limit of when that system of justice has power over a member of the Armed Forces. If there are no further questions, I thank the Court. Sandra Day O'Connor: Did you intend to address at all the ex post facto argument? Charles Fried: Well, the ex post facto argument troubles us a great deal, because it does not seem to us to be properly here. The Court of Military... Coast Guard Court of Military Review determined that there was service connection in this case, and did so according to what I would call the intermediate ground which we ask from this Court; that is to say, the categorical rule of dependency status. There was no ex post facto objection raised in the Court of Military Appeal from that objection, and therefore, it seems to us that the issue is not properly here; it was waived. And we have not been able to discover in the petitioner's argumentation any response to this point. Thank you. William H. Rehnquist: Thank you, General Fried. Mr. Bruce, you have two minutes remaining. Ribert W. Bruce, Jr.: First of all, I'd like to address the suggestion that there should be a per se rule, that any offense against a dependent should be service connected. I believe it was in the case of Toth v. Quarles that this Court pointed out that the purpose of the military is to fight wars, and that other things that it does tend to detract from that. And I would say that if all of the offenses against dependents are held to be service connected, that's going to seriously detract from the military's primary purpose of fighting wars. I mean, you can obviously think of cases that are even further removed from military interest and discipline, or its military-- Antonin Scalia: Well, that's a good policy argument, but that can be made to the Congress. We wouldn't be saying, you know, that it must be done this way; we'd just be saying that it can be, as a constitutional matter, it's permissible. Now if Congress agrees with you that the military should expend its energies on something else, it takes a stroke of the pen. Ribert W. Bruce, Jr.: --Well, Justice Scalia, I think it's really a constitutional issue. I mean, obviously, there are limits on Congress' authority to expand court martial jurisdiction. Antonin Scalia: The argument you're making isn't a constitutional one. You mean as a constitutional matter, the military should spend most of its energies fighting war? Ribert W. Bruce, Jr.: That's correct. But there are constitutional arguments to be made. And I believe that this Court would be evading its duty if it deferred to the military courts when they exceed court martial jurisdiction in a particular case. Thank you very much. William H. Rehnquist: Thank you, Mr. Bruce. The case is submitted.

John G. Roberts, Jr.: We will hear argument first this morning in Case 10-875, Hall v. United States. Ms. Freeman. Susan M. Freeman: Mr. Chief Justice, and may it please the Court: Bankruptcy estates incur taxes when they generate income. The government's attempt to limit the effect of the farm sale statute, section 1222(a)(2)(A), alters that fundamental principle in corporate Chapter 11 cases and in all bankruptcy cases, as it requires this Court to construe the administrative section and the priority section of the Bankruptcy Code that do apply in all of those cases. In a Chapter 12 case, the bankruptcy estate consists of more than just the assets that existed as of the date of filing. They also consist of all of the income that is earned thereafter, wages -- Mrs. Hall's wages as a convenience store clerk are part of the bankruptcy estate -- the proceeds from selling crops-- Anthony M. Kennedy: Does it include debts incurred after the filing? Susan M. Freeman: --From the period -- from the petition filing date until the confirmation of the plan, yes, it does. Those debts are incurred in the operation of the estate-- Anthony M. Kennedy: Debts -- debts that were incurred after that date? Susan M. Freeman: --Yes, Your Honor. So that, for example, in operating an estate, you would incur a light bill as well as incurring taxes. All of the operating expenses are incurred by the bankruptcy estate, and are payable from the income and from the estate assets during that period from the petition filing date until the confirmation of the plan. That's the administrative period. Ruth Bader Ginsburg: Is that true of State -- you said taxes. Is it true of State taxes? Susan M. Freeman: Yes, Your Honor, it is true of State taxes as well as Federal taxes. County taxes, for example. Property taxes-- Ruth Bader Ginsburg: We're dealing -- in this -- we're dealing with a capital gains tax on the sale of the farm. Suppose a State had a similar tax; it also taxed the gain on the sale. Susan M. Freeman: --Correct, Your Honor, and it did in this particular case. So there would be State taxes on the capital gains, and those would also be administrative expense priorities, except for the farm sale provision here, which demotes that priority if the debtor is able to earn a discharge. And if so, then those farm sale taxes are demoted in priority and may be discharged under a plan of reorganization. They would share pro rata with the other prepetition claims of the bankruptcy estate. Samuel A. Alito, Jr.: Who would file the State tax return? Would it be filed by the estate or would it be filed by the debtor? Susan M. Freeman: The debtor and the estate are one in a -- in a reorganization case. And so the taxpayers, Lynwood and Brenda Hall, would file the tax return. The way that it would actually be administered, Your Honor, is shown by the Knudsen case. And basically, there would be a tax return that includes all of the income, the wages, the crop sale proceeds and so forth. And then it would compute it with the capital gains tax, and there would be a separate pro forma return that does not include the capital gains tax. Those would be sent to the Special Procedures Unit of the IRS, so that somebody there would know how to deal with it and would be able to count the difference. Sonia Sotomayor: Counsel, how do you deal with section 346? Susan M. Freeman: Section 346, Your Honor, basically makes the State taxes consistent with the Federal taxes. When you have-- Sonia Sotomayor: I read 346(b) to say that, unless the estate is a separate tax entity under the code, that the debtor, not the estate, pays State and local taxes. This is totally contrary to what you're saying, but the language of 346(b) basically answers the question against you with respect to State and local taxes. Susan M. Freeman: --Justice Sotomayor, I do not think it does, in the sense -- in this sense. The bankruptcy -- section 346(b) made the State and local taxes consistent with Federal taxes, and when you have a bankruptcy estate that consists only of assets on the petition filing date, then you have a separate taxable entity with a separate tax I.D. number that is set up. But under the Federal bankruptcy -- under the Federal tax code, under section 1399, whenever the bankruptcy estate had income during the course of the estate, during the administration period, as well as the assets on the petition filing date, then it's a single taxable entity. And so that single taxpayer would pay it. Section 346 doesn't say what assets are used to pay the tax. That's a matter of bankruptcy law. The debtor, the individual taxpayer, is going to file the tax return under State and local and Federal law, but he's going to use the estate assets because that's all there is. He doesn't have any other assets. Sonia Sotomayor: So the debtor is going to pay, and so when this-- Susan M. Freeman: The debtor pays-- Sonia Sotomayor: --says -- whenever the Internal Revenue Code of 1986 provides that no separate taxable estate shall be created in a case concerning a debtor under this title-- Susan M. Freeman: --Right. Sonia Sotomayor: --Chapter 12 doesn't create a separate taxable estate. Susan M. Freeman: Correct. Sonia Sotomayor: And that the income, et cetera, shall be taxed to or claimed by the debtor under State or local law. Susan M. Freeman: That's correct, Your Honor. It's going to be on the debtor's tax return. The debtor's the one who will have the deductions and the deductions would include administrative expenses of the bankruptcy estate. Sonia Sotomayor: This -- this is hard for me to understand, given the last line. "The estate shall be liable for any tax imposed on such corporation or partnership, but not for any tax imposed on partners or members. " By the logic of that last sentence, it seems to me that the preceding section is not looking to the estate, but to the debtor, to pay the taxes. Susan M. Freeman: The debtor pays the taxes, but with estate assets, because those are the only assets that exist. Sonia Sotomayor: So why -- why would the last sentence be necessary? Susan M. Freeman: The last sentence, I believe, Your Honor, deals with the partnership, and in a partnership case, just as outside a bankruptcy the partnership files the tax return and the partners individually are the ones who pay the taxes. But they pay the taxes -- if a partner is in its own bankruptcy estate with the only assets that exist, all of his income, all of his wages, all of those are property of the bankruptcy estate, and he would use it to pay the taxes. He's not individually liable any more than if a trustee were individually liable. The trustee in a bankruptcy case uses estate assets to pay taxes. And so with-- Anthony M. Kennedy: But it says the estate -- the estate's not liable for the tax imposed on the partners. So if it's not liable, how can it ask for a discharge? Susan M. Freeman: --The -- the debtor ultimately is the one who receives a discharge. Discharge provisions are separate than the -- than the tax payment issues. Tax payment deals with what monies are used to make the payments of taxes during the course of administration of a bankruptcy case. The debtor receives a discharge in a Chapter 12 case if it complies -- if he complies with all of the provisions of his plan of reorganization and then receives a discharge. There are exceptions to the discharge. Certain prepetition taxes are excepted from a discharge and would carry through during the -- postpetition. But the farm sale statute provides that these particular administrative expenses would be subject to a discharge if he complies with the rest of the provisions of the -- of his plan of reorganization. Stephen G. Breyer: What happens in a 12 or 13 case, just your typical case -- and this must arise fairly often -- in year 1, on January 1 the farm or the ship or whatever is the subject goes into Chapter 12 or 13. They have a lot of pre-1 debt. Then in year 2 and year 3, the proceedings are going on, but the farm is operating, so is the ship, or whatever. And they earn -- they run up debts during that time. People give them fertilizer -- you know, all kinds of things. So they have a lot of debts that they've run up in that time. Now, it draws to a close at the end of year 3. Now, what about those debts that have been run up during that time? There isn't a separate bankruptcy estate for tax purposes, I understand. But if Joe Smith has loaned his farm some money during that time, and it comes time to look at the future income to subtract the prepetition debts, does his debt get wound up and get some priority in that process, or is he just at the end of the queue? Susan M. Freeman: He does get priority in that process, Your Honor. Stephen G. Breyer: All right. Well, if he gets priority, then why in heaven's name shouldn't a tax get priority? That's your point. Susan M. Freeman: Your Honor, it does have that priority. Stephen G. Breyer: And if it does, then, of course, the exception that Senator Grassley put in applies to that. So that's a question I should ask them, given your answer. Susan M. Freeman: Yes, Your Honor. And in fact, those taxes, along with the light bill and any other administrative expenses, would be paid when due over that 2 or 3-year period. And that's certainly what happens in the large Chapter 11 bankruptcy case, like a Delphi bankruptcy case or a General Motors-- John G. Roberts, Jr.: Well, but I mean, your -- it is a question for you, because these things don't go for 2 or 3 years, do they? I thought typically they were wrapped up very quickly, and that's to the advantage of the debtor. And your position with respect to postpetition taxes has the potential of extending them beyond the kind of quick turnaround that helps everybody. Susan M. Freeman: --Respectfully, Mr. Chief Justice, in Chapter 12 cases often the bankruptcy estate will drag on for 2 or 3 years, and certainly for longer than 1 year, and much longer than a Chapter 13 case, because you do have sales of assets. You have debts that need to be restructured. You have leases that end up getting rejected. You have a -- new crop subsidies that are applied for and received. The chapter -- the amicus curiae brief of the professors has a study, and shows how long Chapter 12 cases generally last-- John G. Roberts, Jr.: How long was this -- this one? Susan M. Freeman: --This case, Your Honor, because of this appeal has lasted from 2005 through today, so a considerable period of time. And all of the taxes during that period of time and all of the operating expenses during that period of time are administrative expenses and are payable in the ordinary course. There is an administrative expense claim if in fact they haven't been paid. And if -- if one of the creditors has not received payment or if a taxing authority has not received payment, it can move for payment as an administrative priority. It can ask that it be paid now, and it can ask that the case be dismissed if it hasn't been paid. So you -- you do have that highest priority, and this is consistent with the Court's Nicholas case, 1966, which preceded the Bankruptcy Code and which the Bankruptcy Code really incorporated and continued with. In the Nicholas case the Court said that all taxes incurred by a debtor-in-possession and incurred during the administration period have administrative expense priority, and they are payable by the debtor-in-possession as an officer of the court, as the administrator of the estate under 28 U.S.C. section 960, which is still in effect today, and which requires that the person in control of the bankruptcy estate, whether it's a trustee or a debtor in possession, pay those taxes, but not pay them with his own money. As the Court said in the Nicholas case, you pay them with the assets of the estate. The individual trustee is not responsible; the individual debtor in possession is not responsible. The responsibility of the debtor-in-possession really is a matter of the discharge provisions, whether he's going to be separately discharged or if he has responsible person liability because he's -- he's -- you're dealing with trust fund taxes, with wages from some other person. Anthony M. Kennedy: The -- what you say to me makes a great deal of sense, but I think one of their stronger arguments is, it may make sense, but unfortunately, even if Senator Grassley and the others wanted it, they didn't do it right technically. They didn't amend the right provision of the code, and whoever's fault that is, is beside the point. So there is no way to get the words to get to the result that you want. I'll tell you the best I could do, and I see a problem with it. If you say that -- you go to 1226(b)(1) and it says that any unpaid claim of the kind specified in 507(a)(2) -- and 507(a)(2) talks about administrative expenses and refers you to 503; and 503 includes taxes and administrative expenses -- and then you say it's, at 1220 whatever it is, what did I just say? Susan M. Freeman: 1226? Anthony M. Kennedy: 1226. Susan M. Freeman: Uh-huh. Anthony M. Kennedy: It's like an Abbott and Costello movie. [Laughter] The -- the -- you get to 1226(b)(1) and it says that that that's -- shall be paid any unpaid payments of that kind, including administrative expenses, and -- and so then you have 1222(a), which refers to that and then the amendment applies to that. But what I did was I sloughed over by talking too quickly -- it talked about 507(a)(2). And when you look to 507(a)(2), it talks about claims and expenses; and then in (2) there it refers to administrative expenses. And so I think the government says they left out what was key to you, the word "expense". All right? Now, I don't know what I'm doing when I start tinkering with this Bankruptcy Code. And is that just true, what they say? It does leave out the word "expenses". Will -- will we cause untold harm if we were to read the word "claims" there to include expenses? Susan M. Freeman: Your Honor, respectfully, you would cause untold harm because this provision applies in corporate Chapter 11's and in all bankruptcy cases. They all have the administrative expense provision, 503, and they all have section 507. So you would stop taxes from being payable in a big Delphi-- Anthony M. Kennedy: No, but I was thinking, so if I do it by reading the word "claims"-- Susan M. Freeman: --Right. Anthony M. Kennedy: --in 5 -- in 1226, when it says "any unpaid claim"-- Susan M. Freeman: Right. Anthony M. Kennedy: --Which is what you want to have include taxes-- Susan M. Freeman: And claim-- Anthony M. Kennedy: --to read that word as including both the 507(a) claims, which are in (1)(a), (1)(b), and -- also administrative expenses in (2). Can I do that? Susan M. Freeman: --You can, Your Honor, because 101 of the code as right to payment. "Creditor" is defined as someone who has a claim that arose prepetition, which necessarily means claim is broader and not just one that arose prepetition. There are numerous provisions of the Bankruptcy Code that refer to administrative expenses as claims, including 1226. And so the Court can see that those are interpreted consistently. This Court in the Hartford Underwriters case referred to administrative claims, calling them claims as well as administrative. And really what the government's argument here is that administrative expenses are outside of bankruptcy altogether, that they are not part of what get paid in a bankruptcy case. And that's simply untrue. If the Court looks at the provisions with respect to requirements of a plan, including 1222(a), which apart from the exception, it says that administrative expenses are required to be paid. Section 1228 says that a plan discharges all debts including debts provided for, allowed under section 503. Debt is a liability on a claim. Stephen G. Breyer: But that's -- that's my first question. What actually happens? I mean, this isn't the first year of Chapter 12 and 13. Susan M. Freeman: Right. Stephen G. Breyer: And there must be instances where the -- where the debts run up postpetition are pretty big-- Susan M. Freeman: And-- Stephen G. Breyer: --and there isn't enough money to go around and they are going to have to be paid out of future income along with the prepetition debts; and it can be done, but there is a question of priorities; and the government is saying there is no priority -- I think they are saying that -- for a postpetition debt, and -- and you're saying: Oh, but of course there is. So what actually happens? There have been perhaps thousands and thousands of cases, haven't there? Susan M. Freeman: --And administrative expenses do get paid in the ordinary course. And if-- Stephen G. Breyer: Get paid, if necessary, by assigning priorities? Susan M. Freeman: --Yes. They have administrative priority and they do get paid. Stephen G. Breyer: And so to look to a Hornbook on -- on bankruptcy law which just tells me what you've just said, I would look where? Susan M. Freeman: We -- we've cited a number of hornbooks that have exactly that provision. What is particular interesting with respect to the government's position here is that, at the government's urging section 507(a)(8) of the Bankruptcy Code, that provided for prepetition priority, eighth priority, for prepetition taxes within a short period before the Bankruptcy Code, was amended; so that all of those eighth priority taxes during the year of the filing, the straddle year -- here the Halls filed their bankruptcy case in August, so during the entire period from January 1 through August when they filed -- are treated as administrative expenses. And yet now they say administrative expenses mean nothing and they don't get any payment as administrative expenses. Why urge the change? Why make all of those year of filing taxes into administrative expenses and then say the administrative expenses have no meaning? Sonia Sotomayor: I'm going to ask the government this, but are you aware of any circuit split or any cases below that have accepted the government's arguments that Chapter 12 involves prepetition debts only and that don't pay administrative expenses postbankruptcy? Susan M. Freeman: There are several cases that have interpreted section 1222(a)(2)(A). None of them have addressed the change in 507 or what that means. Sonia Sotomayor: That's a different question. Susan M. Freeman: Okay. Sonia Sotomayor: The government's now saying that Chapter 12 involves only prepetition claims. Susan M. Freeman: Right. Sonia Sotomayor: And it's basically by that argument saying it doesn't involve and can't involve administrative expenses. their argument. Susan M. Freeman: I think that's-- Sonia Sotomayor: And so I'm asking is -- That's how I read are there any courts that you are aware of below who have been presented with this argument outside of the tax situation who have accepted it? Susan M. Freeman: --I-- Sonia Sotomayor: Who have failed to give priority to administrative expenses? Susan M. Freeman: --None outside of this tax situation. And Your Honor, I don't believe that any of the cases that have followed the government's interpretation of this farm sale statute, 1222(a)(2)(A), have addressed the impact on other administrative expenses and other tax claims. The wages -- the taxes on wages that are incurred, the lottery winnings that an individual farmer may have, and the fact that those have administrative priority and that those would need to be paid off the top as administrative expenses -- none of the cases address those. Sonia Sotomayor: I'm not asking you to defend their position. Susan M. Freeman: Okay. Sonia Sotomayor: It's just such a broad position that I'm trying to understand if there is a split out there that we are unaware of. Susan M. Freeman: And the problem, Your Honor, is that it does have these broad impacts and none of the courts have really addressed it, and I don't believe that certainly the-- Sonia Sotomayor: So can we go back to the issue that gives me trouble? Susan M. Freeman: --Yes, Your Honor. Sonia Sotomayor: How to read "incurred by the estate". If the estate doesn't pay taxes-- Susan M. Freeman: To incur-- Sonia Sotomayor: --how could it be incurred by the estate when Congress, if it intended what you're saying it intended, could have said "incurred during bankruptcy"? Susan M. Freeman: --Incurred -- to incur is to take on liability. So at the point in time that income is generated during a bankruptcy case, then liabilities are taken on at the same time, the operating expenses, the taxes. Here you had a clear estate asset, the Hall farm. It was sold. That generates an income tax liability, a capital gains liability, and so that is -- it -- it's tied to the income which is here property of the estate. The -- the-- Antonin Scalia: The -- the problem is that, with an exception that -- that is not applicable here, section 1399 of the Internal Revenue Code provides that no separate taxable entity shall result from the commencement of a case under Title XI of the United States Code. How can you incur a tax when you are not a separate taxable entity? Susan M. Freeman: --Your Honor, because you are a single taxable entity instead of a separate taxable entity. The whole reason for the separate taxable entity section was when you had a bankruptcy estate that consisted only of the assets on the petition filing date, and the debtor earns income independently, so the debtor would independently have tax liability, and that would be separate from the estate. But when you have a reorganization case, a corporate Chapter 11 or a Chapter 12, then the estate and the debtor are a single taxable entity and the debtor is the one that files the tax returns or the debtor-in-possession or the trustee, if there is a trustee in control-- Antonin Scalia: But if that exception were intended, the provision I read contains an exception. It says "except in any case to which section 1398 applies. " 1398 applies to Chapter 7 and Chapter 11 where the debtor is an individual. Susan M. Freeman: --That's-- Antonin Scalia: Now, if there is an additional exception for Chapter 12 of the sort that you allege, why wasn't that put in there? Susan M. Freeman: --There is no exception and there shouldn't be an exception, Your Honor. They are within section 1399, just like corporate Chapter 11 debtors. The debtor is the one that files the tax return. The debtor and estate are one. All of that corporate earnings, all of the wages, the lottery winnings, the farm sale proceeds, all of those are part of the estate. And so-- Antonin Scalia: What does it mean, then, to say that no taxable -- "no separate taxable entity shall result? " What does it mean, unless it means that it is not the estate which occurs the tax? Susan M. Freeman: --Your Honor, respectfully, there is a difference between taxable entity and estate. The estate is a collection of property, that is the collection of property that is operated by the debtor-in-possession or trustee in a reorganization case. Antonin Scalia: Well, but they -- but they would not have needed the exceptions for Chapter 7 and Chapter 11 where the debtor is an individual if what you say is true, if indeed a bankrupt estate is, as you say, not an entity at all. Susan M. Freeman: You need that exception, Your Honor, in a Chapter 7 case for an individual because the individual earns income that is wholly independent from the estate, that is not part of the estate. So that the bankruptcy estate consists of the assets that the individual owns on the petition filing date. The trustee administers those, sells the assets, may incur some liability for selling the assets for taxes, pays those and deals with those, while the individual continues to earn income postpetition that's his own income. And so you need to have a separate taxable estate in those instances. But when the income that's earned during this whole period of administration, from the petition filing date to the confirmation date of the plan, is all property of the estate, then the debtor, the corporate Chapter 11 debtor or the corporate Chapter 12 debtor or the individual Chapter 12 debtor is incurring that income as part of the estate. estate in a Chapter 12 case. It's all property of the Section 1207 says that. And so the debtor is the one that files the tax returns and the debtor uses the estate assets to make the payments of the taxes and to make the payments on the light bill, and to make the payments on all of the other expenses of administration during this period of administration. That's what this Court held in Nicholas and that continues on in effect today. Elena Kagan: But, Ms. Freeman, wouldn't it be fair to say then that the taxes are incurred by the debtor and payable out of the estate. Why does it say "incurred by the estate"? Susan M. Freeman: It uses the term "incurred by the estate" I think based upon the same kind of language that this Court used in Nicholas, as incurred by, incurred during the administration period, incurred by the debtor-in-possession. It's really a broad sense of all of the kinds of bankruptcy estates in a Chapter 7 case. This refers to all bankruptcy cases. And so in a Chapter 7 case it's going to be just the assets that exist there on the petition filing date. If it's a corporate case it's going to be all of the assets that are generating the income during the course of the administration of the Chapter 12 or the Chapter 11 case or even the Chapter 13 case. In Chapter 13 cases you have a specific additional provision, section 1305, that deals with taxes payable postpetition, and it also includes postconfirmation, so it gives the government a broader kind of right so that-- Ruth Bader Ginsburg: The argument is made against your position that 1305 is one of the provisions that was featured I think both in the Ninth Circuit and the Tenth Circuit, and their position seems to be that 1305 gives the government an election. Susan M. Freeman: --It does, Your Honor, provide for an election for the government. What's important is that in a 13 case, unlike a 12 or an 11, you have a very short period of administration. They have to file their plan within 15 days. It's confirmed within a month or 2. And it's very unlikely that April 15th is going to fall within that short period of time and that's when the government says that your taxes are incurred. So you're going to have a -- it's unlikely you're going to have an administrative expense claim for your income taxes during the period of administration of a Chapter 13. It's a very short period. So the government has the option not only during the administration period, but also during the whole period of the plan, to elect to say: All right, there have been some big commissions earned here and I want to go ahead and collect from the estate rather than just wait and see what the debtor earns afterwards. And so it then can go ahead and file a claim and ask to have that claim paid out of the bankruptcy estate, and it really gives the government much broader rights than it does in a normal Chapter 11 or a Chapter 12 case or a 7. If I may reserve the remainder of my time for rebuttal. John G. Roberts, Jr.: Thank you, Ms. Freeman. Susan M. Freeman: Thank you. John G. Roberts, Jr.: Mr. Shah. Pratik A. Shah: Mr. Chief Justice, and may it please the Court: The postpetition income tax liability at issue in this case is not subject to section 1222(a)(2) and thus cannot be treated as a dischargeable nonpriority debt for two reasons. First, consistent with the structure of Chapter 12, a Chapter 12 plan is limited to prepetition debts and does not cover postpetition debts, including administrative expenses. Rather, postpetition administrative expenses are paid separately through section 1226(b)(1), which contains no farm sale exception. Because section 1222(a)(2)(A) strips priority only from a subset of claims covered by a Chapter 12 plan and does not alter which debts fall within that plan, it cannot apply to the postpetition tax liability at issue. Ruth Bader Ginsburg: So what -- what farm sales would be included? What farm sales would get this benefit that Senator Grassley obviously wanted them to have? Pratik A. Shah: Your Honor, it would be prepetition sales. That is, any capital gains tax incurred from a prepetition sale, those would be priority expenses covered under a Chapter 12 plan under section 1222(a)(2), because they fall under -- they are an -- they are a priority claim under section 507(a). John G. Roberts, Jr.: Does that make sense, though, in terms of if you are talking about farmers and fishermen and you are talking about the treatment of their central asset, whether it's the farm or typically the boat, and they either want to try -- they want to try to save the farm or the boat, and they go into bankruptcy and the big issue is how that asset's going to be treated and your position is it's not in the bankruptcy at all, it's outside of it. That seems to me to be at least counterintuitive. Pratik A. Shah: Well, Your Honor, two points. One, as a practical matter Chapter 12 is a reorganization provision. It's not a provision just designed to allow farmers to get out of the business of farming. So often what will happen is that the farmers will try to reorganize some of their farm sale assets, sell some of their livestock, change their farming operation, to see if they can save it outside of bankruptcy first. All of those sales -- an example of that is the Knudsen case. Knudsen is the only circuit case to go Petitioner's way. In Knudsen it not only involved the postpetition tax liability of the type at issue in this case. It also had a significant prepetition tax liability component in that case based upon just what I was explaining, the farmer trying to reorganize, trying to change the farming operation to save the farm without having to go into bankruptcy. John G. Roberts, Jr.: Yes, but also I gather it's a fairly typical situation where you have farmers that might want to sell part of the farm. You know, they have dairy and corn operations or something, and they sell one to try to preserve the other. And that's -- that's exactly the sort of thing that should be considered in the bankruptcy context, and yet your position says we're going to treat it outside the bankruptcy. Pratik A. Shah: Well, Your Honor, it certainly happens within the bankruptcy, and I'm not disputing your point that that may -- that may arise in a bankruptcy case just like it arises in this case. And it will be dealt through the bankruptcy. That is, the sale will happen and it will be approved by the Bankruptcy Court. The question is how do you treat the capital gains tax arising-- John G. Roberts, Jr.: But that's a big deal if you're deciding how the plan's going to work. What the amount was here was big for the farmer and the idea of well, we are going to pretend that's not at issue here seems to me to be -- again, not to make a lot of sense. Pratik A. Shah: --Your Honor, we are not asking, to be clear, to pretend that that's not there. How the tax liability would be dealt with under the government's view is at the time the debtor moves to sell the farm asset during the case. Like in this case, that sale of the farm asset generated $960,000. That was the sale price. The capital gain tax liability in this case is $29,000. If they would have set aside from that $960,000 sale price $29,000 to pay the capital gains tax debt, that would resolve the issue. We are not saying that you ignore it. Elena Kagan: But there's every reason to think, Mr. Shah, that what Congress was worried about here was cases in which the bankruptcy plan would not be approved at all because there were very high capital gains taxes that would result from a sale; and that that was the problem that everybody was focused on, was making sure that farmers could take advantage of section 12. So it's a little bit odd -- it's actually more than a little bit odd. It's a lot odd to read the statutes to apply not in that context, but only as to people who have somehow managed to sell their property, you know, 18 months before going into bankruptcy. Pratik A. Shah: Sure. Your Honor, when you say that everybody was focused on this problem, we have the evidence of exactly one person as to what one legislator thought that this bill would do. That's Senator Grassley. Now, admittedly, Senator Grassley's statements do indicate an intent on his part to reach postpetition taxes. But the preexisting statutory framework does not permit that result. What section 1222(a)(2)(A) does is it allows the debtor to strip priority from a certain subset of governmental claims, such as prepetition taxes, and there is no doubt that Senator Grassley correctly understood that's how section 1222(a)(2)-- Samuel A. Alito, Jr.: It's not just Senator Grassley. You're interpretation makes this provision, 1222(a)(2)(A), of very, very little practical value. You think that's what Congress intended? Not only would it -- would it mean that postpetition capital gains on the sale of part of the farm or the entire farm would be outside of the bankruptcy, outside of the bankruptcy, but all of the prepetition capital gains would be outside of it too, unless they occurred in a previous taxable year. Pratik A. Shah: --A couple of responses, Your Honor. First of all, I don't think it's sort of a null set or a vanishingly small set. There is the Knudsen case which qualifies. In the professors' amicus brief, on page 10a of their amicus brief, they provide a chart of representative cases involving postpetition tax liabilities. They cite eight cases in their chart on page 10a. Three of those eight cases involve significant prepetition tax liabilities, even under the narrower definition of "prepetition". But -- but to get to your larger point, even to the extent it might be narrower than what Congress intended, Congress certainly knew how section 1222 operated in the sense that it would strip priority from certain claims that are already entitled to priority under a Chapter 12 plan, such as prepetition taxes. And both sides agree that that's how section 1220(a)(2)(A) works. There is no dispute about that. The dispute is about whether this postpetition tax liability comes within the Chapter 12 plan in the first place. That dispute turns on preexisting code provisions, part of the 1978 Act, part of the 1980 Act and the 1986 Act. Whatever deference Senator Grassley is owed as to the operation of section 1220(a)(2)(A) itself, he is owed no deference whatsoever as to the proper interpretation of those preexisting code provisions. It's our position that these preexisting -- preexisting code provisions, section 503(b), section 9 -- 346 and section 1398 and 1399, all lead to the result that postpetition tax liabilities are not an administrative expense within the meaning of the code. Ruth Bader Ginsburg: How about employment tax? Employment taxes? Pratik A. Shah: Your Honor, employment taxes Now, as a matter arguably could be treated differently. of discretion IRS has chosen not to treat them differently. That is, they don't try to seek those as I think there would be an administrative expenses. argument and we set forth the argument in a footnote of our brief. What the potential argument would be is that they could be deemed an administrative expense not because they are incurred by the estate, but under the other part of the definition of an administrative expense under 503(b)(1)(A). Stephen G. Breyer: Just following up on that-- Pratik A. Shah: Yes. Stephen G. Breyer: --I'm looking for what I call past practice, where there must be a lot-- Pratik A. Shah: Yes. Stephen G. Breyer: --that would shed some light on this. So, I see -- your point that we cannot call these taxes administrative expenses is because when that's defined in 503 for the entire code. Pratik A. Shah: Yes. Stephen G. Breyer: It talks about administrative expenses incurred by the estate. Pratik A. Shah: Yes, Your Honor. Stephen G. Breyer: So you are saying here are three people who incurred their own taxes. One is Section 12, one is Section 13 and one is individuals in Section 11. Is that right? Pratik A. Shah: Ah-- Stephen G. Breyer: At least that's my-- Pratik A. Shah: --Yes. Yes, Your Honor. Stephen G. Breyer: --So we have three categories of people that -- where the taxes literally taken, they incur postpetition taxes. Now the bite would come up if it turned out when they were getting around to settle these things that there isn't enough money to pay fully the postpetition or let's -- no, to pay fully the domestic support obligations, wages, and also Federal taxes. Isn't that -- that's where it's going to show up, because the question will be, do you have to shave the Federal taxes because they are coming in to be paid as an administrative expense priority which is only -- there as number 2, I think, in light of number 1. Or do you not shave them at all. If they were liable personally, there isn't any reduction in the amount of the Federal government, if they are allowed because it's one of the estate's expenses basically; using the estate very, very loosely then they would have to take a reduction, too. Am I right? Are you following it? Pratik A. Shah: I think so. Let me try to say what I think what you're saying. Under Chapter 12 and 13, if it is in fact a priority claim, whether it's a priority claim or an administrative expense, those have to be paid in full. There isn't an ability for the Court t0 shave those-- Stephen G. Breyer: No. The administrative expenses don't have to be paid in full if there isn't enough money for them to in unsecured claims for domestic support obligations, because the administrative expenses is the second priority, it isn't the first. Pratik A. Shah: --Okay. Well, Your Honor, there is a misunderstanding I think in what you are saying. That is, in a Chapter 12 plan, the priorities matter more in terms of the relative priority between Category 1, 2, 3, 4, 5, 6, 7 and 8. They matter more in a chapter 7 liquidation where there is a finite set of assets being liquidated and those will be paid out in the priority that you are talking about. In a Chapter 12 or 13 case, there is going to be a plan proposed and that plan will be confirmed. Now under 1222(a)(2) any of those priority claims, whether it's first priority or eighth priority, has to be set out and to be paid in full in order for the plan to be confirmed. Stephen G. Breyer: Okay. Pratik A. Shah: So the plan won't be confirmed at all. There isn't a matter of ordering the priorities in a Chapter 12 or 13 case. Now if I could turn back to Justice Sotomayor's question. Sonia Sotomayor: Could you turn back to -- before you answer my other question, could you finish your thought about what you are doing with wages? Are they given priority or aren't they? If you are saying they are not, if we accept your reading of this employee wage taxes are not administrative expenses. Pratik A. Shah: Right. Well, Your Honor, they are certainly not administrative expenses under the definition of incurred by the estate. That would be the relevant issue in this case. They may come under the other definition of administrative expense, that is the costs -- necessary costs of preserving the estate, like wages. If you consider the employment payroll tax that is paid simultaneously as the wage, that's part and parcel of the wages, you could get at it that way. But again that doesn't have anything to do with the "incurred by the estate" language. The incurred by the estate language, as you properly point out, is relevant -- the most relevant provision as to whether a tax is incurred by the estate are Sections 346b and 1398 and 1399. Elena Kagan: How does that work, Mr. Shah, because this is the part of your argument that I have to say sort of tripped me up. Pratik A. Shah: Okay. Elena Kagan: Because you define 2 years and 4 years after the phrase that you are trying to define. Pratik A. Shah: Sure. Elena Kagan: So it must have been a very pressured Congress. Pratik A. Shah: Well, Your Honor it was a pressured Congress, because in the legislative history that we site, they say -- and it's not true that all of the accurate -- separate tax entity, these rules weren't implemented until afterwards. There -- Section 346 which dealt admittedly only with state and local taxes, they set up rules, the same separate taxable entity rules that Congress later enacted 2 years later to apply to state and local entities. And that's the provision 346 that is reprinted in our appendix at page 2. What Congress said when they passed 346 is, 1978 Act to also apply to Federal taxes, but it decided to pull them out of the act so as not to step on the shoes of the jurisdiction of the Ways and Means Committee. That's the explanation that Congress provided and then 2 years-- Elena Kagan: But you are saying that as of 1978 there was kind of an idea in people's heads about this separate tax entity or at least in some people's heads, but that idea had never been converted into any statutory language. And you are suggesting that we should take this phrase "incurred by the estate" and read it as if they were referring to something real that was in a statute. Pratik A. Shah: --It's not simply taking out of their head, Your Honor, its Section 346 rules which are parallel and apply to state and local taxes, those didn't come out of nowhere. Those came out of prior IRS rulings as to when there is a separate taxable entity in a bankruptcy case. There were preexisting -- before the 1978 act, in particular, there was a 1972 IRS revenue ruling which set forth the rules about when there is a separate taxable entity, whether the act should -- whether the tax should be taxed to the estate or to the debtor. Section 346 in the 1978 act codified those rules for State and local income taxes. In the intervening 2 years between 1978 and 1980 when Congress consummated the step and extended those to Federal taxes, the IRS was still applying its preexisting practice based on its revenue ruling, so there wasn't a gap where there was no guidance as to whether -- how to determine whether these were incurred by the estate or not. Courts may -- courts readily would have looked, I presume, to the 1972 Treasury ruling and the parallel 346 rulings in that gap time until the legislative guidance came along, and then codified that result with respect to federal taxes. Now, I think to-- Elena Kagan: Can I ask another question-- Pratik A. Shah: --Sure. Elena Kagan: --while we are on this, because the 1398, 1399 would suggest that we are looking to this separate taxable entity. But if I understand correctly, in the corporate context the IRS actually does not look to that. It looks to just the question of whose filing the tax return. So if that's the case, aren't you, in that very large bankruptcy context, losing your textual anchor entirely? Pratik A. Shah: No, Your Honor. There are two ways that a bankruptcy estate can incur a tax. One is if it's a separate taxable entity, then it -- then it's responsible for the taxes, all the taxes are taxed to the estate and it has to file the return and pay it. The other way is if it has the duty to file the return. That's a different provision of the Internal Revenue Code, section 6012(b)(3). 6012(b)(3) also appears in the government's -- in the appendix to the government's brief. What 6012(b)(3) on page 14a says is that in a bankruptcy case the trustee of a corporate bankruptcy estate shall make the return for income in a corporation. What this Court held in Holywell, which both sides cite and both sides agree, is that when a corporate trustee has a duty to file a return under 6012(b)(3), it also has a duty to pay the tax. That is, it incurs, it's liable for or incurs the tax. So there are two ways to incur the tax: One is separate taxable entity; the other way is if the code imposes an obligation on the bankruptcy estate to -- to file and pay the tax return. That's the other way to interpret it, and that's why all the Chapter 7 and 11 corporate cases that are cited by Petitioners are inapt. In those cases the postpetition tax liabilities are, in fact, incurred by the estate. What is remarkable is that Petitioners do not cite a single Chapter 12 case in which a postpetition tax liability has been treated as an administrative expense. Chapter 12 has been around since 1986, and yet there is not -- if this was such a big problem that Congress was trying to get at it through this way, you would have expected at least a single case in which a postpetition tax liability had been treated as an administrative expense. Stephen G. Breyer: How would it show up? I mean, what -- what -- what difference -- suppose -- suppose -- in 11 individual, 12, or 13, what's the difference whether you treated it as an administrative expense or not, as long as they all have to be paid anyway, you say? Pratik A. Shah: Sure. So the difference is in Chapter 12 and 13 they are treated outside of the bankruptcy plan itself, but they do need to be paid up front. And in fact, they receive a special-- Stephen G. Breyer: No. How would we know? How would we know-- Pratik A. Shah: --Oh, That they're treated differently? Stephen G. Breyer: --Yes. Pratik A. Shah: Through the code. In Chapters 12 and 13, 1226(b)(1) and 1326(b)(1), the parallel provision in Chapter 13, they pull out administrative expenses. They pull them out-- Stephen G. Breyer: Let's imagine you are absolutely right. They mean to treat them differently? Pratik A. Shah: --Yes. Stephen G. Breyer: They mean to treat the postpetition tax obligation to the Federal Government not as an administrative expense. But this is an instance where the business will continue, and therefore, you have said in order to continue you have to pay all your tax liability and all your administrative expenses. Pratik A. Shah: Yes. Stephen G. Breyer: Therefore, what difference does it make whether you do or whether you don't treat them as administrative expenses? What is the operational difference? Pratik A. Shah: Sure. Your Honor, it would be to the government's advantage if these were in the ordinary course -- at least before section 1222(a)(2)(A) was enacted that stripped priority, it would have been in the government's advantage to take the position that these were administrative expenses. And the reason why it's favorable to the government is, those have to be paid up front as part of the bankruptcy. If you don't treat them as administrative expenses -- and the government took the self-denying position here in the years leading up to 2005, consistently taking the position these were not administrative expenses, even though it was to the government's disadvantage, because the code required that interpretation. And the disadvantage is you don't get -- the government didn't get them paid up front as administrative expenses. They would have to collect them outside of the bankruptcy. And when you go to collect them outside of the bankruptcy, there is much more uncertainty. There may not be any-- John G. Roberts, Jr.: Well, it's certainly not a self-denying position now, right? You are arguing that these are -- that the taxes of this sort are administrative expenses when that puts you at the head of the line. You are arguing that they are not administrative expenses, same type of taxes, when it puts you at the back of the line, even though the provision that puts you at the back of the line was designed to particularly help the fishermen and -- and farmers. Pratik A. Shah: --Your Honor, that -- that's just not true. Dating back to 1998 -- and these are cited in the government's brief at pages 16a to 18a -- dating back to 1998, the government had consistently taken the position that postpetition tax liabilities-- John G. Roberts, Jr.: No, I'm talking about the position you are taking now. You argue for-- Pratik A. Shah: --We have maintained our-- John G. Roberts, Jr.: --different treatment of these taxes as to whether or not they are administrative expenses -- not solely, but it leads to the result that you get the money first either way. Pratik A. Shah: --Because Congress -- the government has stayed consistent in its position. Because Congress has changed the rules, it turns out that that same interpretation-- John G. Roberts, Jr.: Well, but then you're saying that Congress changed the rules in a way that, as Justice Alito's question suggested, really doesn't do much at all, when what they wanted to do was provide some real protection for farmers and fishermen. Pratik A. Shah: --I can't speak to what Congress wanted to do. If in fact they wanted to do that, then they did it the wrong way. They could have-- Ruth Bader Ginsburg: What would be -- what would be the right way? Pratik A. Shah: --You could easily enact a separate provision within 1222 that said -- something like -- use the language something like section 1305, that said "Any taxes that become payable after of the filing of the petition shall be treated as non-dischargeable, nonpriority debts and paid that way. " But they didn't do that. And I think section 1305 is critical here, and this goes to your question, Mr. Chief Justice, as well, that the government is trying to take advantage here. The -- adopting Petitioner's position would have a significant ripple effect in Chapter 13. This is not simply a matter of trying to get to the result that Senator Grassley intended by narrowly interpreting 1222(a)(2)(A) and it won't have any other affects in the code. It will have a significant effect in the intended operation of Chapter 13. And -- and the reason why that's important is, is to put this in perspective, there are about 600 to 700 total Chapter 12 filings each year. There is somewhere in the upwards of 400,000 Chapter 13 filings each year, and here's where it would throw a wrench into Chapter 13. If you look at section 1305 of Chapter 13, and that's reproduced on page 11a of the government's appendix. What 1305(a)(1) does is it provides a special procedure for the government to file a claim for postpetition taxes, exactly the type of tax at issue in this case. It says: Government, you can go file a claim to have that included within the bankruptcy plan. If -- if you adopt Petitioner's position, there would never be a case in which the government would ever have any occasion to invoke 1305(a)(1), because they-- Elena Kagan: Why would that be a problem? You said that there would be a significant ripple effect and practical difficulties. And I understand your argument about 13 shows that you have to do this and why would 13 be necessary if Petitioner were right, but you started out, I thought-- Pratik A. Shah: --It -- yes. Elena Kagan: --by trying to show us that it would be a significant practical problem. Pratik A. Shah: I said it would be a significant disruption to the intended operation of Chapter 13. In practice, it would actually mean that the government comes out better under Chapter 13 than in the government's current position, because what Petitioner's position would do, if you read-- Elena Kagan: So it just does automatically for the government what is now done by -- by some kind of government filing? Pratik A. Shah: --Well -- well, not even that, Your Honor, because under 13 -- the reason why 1305(a)(1) would be dead letter -- you could just rip that page out of the code and throw it away if you accept Petitioner's reading. The reason why that's true is because under their reading it would get administrative expense priority, which are paid up front, super-priority, even before anything else; but under 1305 (a)(1) it doesn't get administrative expense priority, it may not even get any priority at all. And so it's a significant change in the operation of how the government would be seeking postpetition tax liabilities. Now, it would work to the detriment of the debtor in Chapter 13 cases, the upwards of 400,000 Chapter 13 cases that would occur-- John G. Roberts, Jr.: But those are -- those are small potatoes compared to the sale of a farm and a boat, right? Pratik A. Shah: --I would -- I would-- John G. Roberts, Jr.: This particular issue of large capital gains from sale of significant assets doesn't typically arise in the Chapter 13 cases. Pratik A. Shah: --Sure, the capital gains tax wouldn't, but there's all sorts of postpetition income taxes that would arise in a Chapter 13 case. In a Chapter 13 case, those are wages that are being incurred after the filing of the petition. All of the taxes on those wages after the petition would be the -- the type of -- would be eligible for postpetition tax treatment. John G. Roberts, Jr.: Well, in Chapter -- Chapter 13 cases are the ones that you -- that are typically resolved very quickly, right? Pratik A. Shah: Your Honor, it is true that -- from the statistics that I have seen on average, we are talking about 4 months in a Chapter 13 case. On average in -- in a Chapter 12 case, according to the professors' amicus brief, median time is about 8 months. What's clear from the legislative history, the reason why Congress set up the Chapter 13 rules as to make the tax incurred by the debtor rather than by the estate is because Congress expressly said in the legislative history, which is cited in our brief, that they expected the confirmation time to be relatively quickly in a Chapter 13 case. We know that they made the same assumption in the Chapter 12 case because 1, they enacted the same separate taxable entity rules. And 2, they put in 90 days to actual deadlines in the code for Chapter 13: propose a plan, 45 days to confirm it. So roughly 4 months is what Congress had extended. Now in practice, it's been the case that bankruptcy courts have extended that time beyond the statutory deadlines. So perhaps they are open a couple months longer than what Congress had expected. But that wasn't the intent that Congress had enacted this with, and if Congress wants to change that, it can go back and rewrite the rules to -- to make that change. Sonia Sotomayor: Counsel, before you finish, could you answer my question of what impact your broader reading -- your Chapter 12 affects only prepetition debts -- what else is that kind of holding going to affect? Your narrow alternative holding affects just this issue. That broader reading -- I worry about a broader reading when I don't know its impact. Pratik A. Shah: I -- I don't think it would have any adverse effects. And the reason is this: the administrative expenses, whether they are included in the plan or not-- Sonia Sotomayor: Yes? Pratik A. Shah: --are still going to be paid up front. If you take Petitioner's reading that administrative expenses are really part of the plan under 1222(a)(2) rather than 1226(b)(1), you now have a conflict between 1226(b)(1), which is on page 10A, which expressly addresses and only addresses administrative expenses, and states that -- this is on page 10A -- it says "those will be paid before or at the time of each payment to creditors under the plan. " If you also said that they come under 1222(a)(2), which is the only way that Petitioner's could win -- if they also came under 1222(a)(2), 1222(a)(2) says that their -- they must be provided for full payment in deferred cash payment. So deferred interest-free payments over the life of a 3 to 5-year bankruptcy plan. That's very different than having them get superpriority treatment under 1226(b)(1) and be paid in front -- upfront separate from the plan. So that -- that is one significant piece of textual evidence that Congress thought that these should be paid outside of the plan. The other piece of textual evidence is section 1227(a), which appears on page 10A as well, and what it says is that "the confirmed plan shall be binding on each creditor. " That is the only potentially relevant category to the government. But section 101 defines creditor -- and this is on page 1A of our appendix -- as entity that has a claim against a debtor that arose at the time of or before the order for relief concerning the debtor. That is a holder of a prepetition claim. If a confirmed Chapter 12 plan is only binding on the holder of a prepetition claim, it makes no sense to include postpetition claims within a Chapter 12 plan. I don't even know what it would mean to have a confirmed -- to have a plan included that and not have that plan binding on the government. And so I think if you take those two pieces of textual evidence together, I think that strongly supports the interpretation of 1222(a)(2), that when it says a claim of the type specified in section 507, it means "claim", and doesn't mean "claim and administrative expense". Now admittedly, Congress has not been perfectly clear in using that term. It uses -- sometimes it uses of the term "claim" to mean claim and administrative expense. Sometimes it means it to only mean claim. But we should give effect to the distinction between claim and administrative expense in light of 1226(b)(1), which specifically already addresses administrative expenses. Sonia Sotomayor: The problem with that argument is that the two are used interchangeably by everyone. Congress, the Court-- Pratik A. Shah: Yes, Your Honor. Sonia Sotomayor: --The government in many situations, given the broad definition of "claims", the only logical conclusion is that it includes a subset, a liability created by administrative expenses. Pratik A. Shah: Your Honor, and if you are only construing that language in isolation, if it only said claim in 507(a)(2) and 1226(b)(1) didn't exist, I would be in full agreement with you that you would read it to being claim and administrative expenses. Because we know that administrative expenses have to be paid in some way in a bankruptcy case. But 1226(b)(1) does exist in this code, and we need to give that provision effect. The last point I would make is Congress knows how to include administrative expenses within a bankruptcy plan when it wants to. If you look at the corresponding provision in Chapter 11 as opposed to the provisions in Chapter 12 and 13 -- this is section Section 1129(a)(9)(A) -- it expressly provides for the payment of administrative expenses within the context of the Chapter 11 plan. Chapter 12 and 13 take a different approach, and the Court should give effect to the choice that Congress made to treat administrative expenses outside of the bankruptcy plan. If there are no further questions? John G. Roberts, Jr.: Thank you, Mr. Shah. Ms. Freeman, you have two minutes remaining. Susan M. Freeman: Your Honor, one of the first things that Mr. Shah said was that the debtor should have set aside $29,000 from the sale proceeds to pay the taxes. That's $29,000 in sale proceeds of property of the estate. And yes, those are ordinarily set aside to pay the taxes. That's how bankruptcy cases work. Because you have 1222(a)(2)(A), that $29,000 didn't need to be used to pay the taxes, and instead was set aside to be treated under the plan of reorganization, where that tax claim could be demoted in priority to a prepetition claim and discharged. But the ordinary course is that the sale proceeds are used to pay the taxes, the administrative expenses. That's how bankruptcy works. And the government's argument here completely undercuts that. With respect to section 1305, the language is different because it uses the word "payable". It includes all postpetition, postconfirmation, all the way through to the end of the bankruptcy case. Not just the short period of administration. In Chapter 13 cases, you still have to pay administrative expenses. It's just that it's pretty rare that you have a tax that is incurred during that short period of administration. And so you have a separate statute that covers the whole period through the entirety of the plan of reorganization. The Court -- Mr. Shah was asked about cases where -- and in fact an administrative expense claim was incurred for a capital gains tax in the Chapter 12 case. We would cite the Court to the Specht case. A copy of that is attached to the professors' amicus brief. And that shows where a plan was defeated because of the large capital gains tax from the sale of the family farm. And that in fact is cited in some of the -- some of the legislative -- not the legislative history, but some of the commentary about one of the reasons why Senator Grassley supported section 1222(a)(2)(A) and drafted it in the first place. This prevents a plan from being confirmed in so many Chapter 12 cases, family farmers are not able to go through with their plans. And that's why you have the demotion in priority. It does have very little practical value if in fact it only applies to prepetition sales -- and not just prepetition but more than a year prepetition in most instances. The professors' amicus brief just refers to prepetition, and this little chart doesn't say that those are not within the scope of 507(a)(8) -- and those eighth priority -- I'm sorry, Your Honor. John G. Roberts, Jr.: Thank you, counsel. The case is submitted. Susan M. Freeman: Thank you.

Warren E. Burger: We'll hear arguments first this morning in Reiter against Sonotone Corporation. Mr. Thomas, you may proceed whenever you're ready. John E. Thomas: Mr. Chief Justice, may it please this Honorable Court. My name is John Thomas. I'm a sole practitioner from Saint Paul, Minnesota. I have seated 10 minutes of my argument time to the federal government, so I have 20 minutes. I intend to try and to keep possibly five for rebuttal, and what I would like to do is first of all, the issue this morning that we're faced with is, whether or not consumers in the United States may recover overcharges paid for price fixed good as injury occurred under Section 4 of the Clayton Act in their property. I will quickly outline my argument points if I may please. Warren E. Burger: Mr. Thomas -- John E. Thomas: Yes. Warren E. Burger: You may find it more convenient to elevate the lectern -- John E. Thomas: Oh, I'm -- Warren E. Burger: Just with the crank, each of the other way. John E. Thomas: The outline of my argument points this morning would be first of all, I'd like to classify the Eighth Circuit opinion as it may as one of policy contrary to the warnings of this Court in antitrust decisions. Secondly, we look at the statute language exactly what it does say which I say is in the disjunctive. Then, I would like to go to the opinions of this Court starting with Mr. Justice Holmes in Chattanooga Foundry through Mr. Justice Marshall and Hawaii versus Standard Oil, and in through each one of the Justices here what they said in Pfizer versus Government of India. Lastly, I would then like to describe if I may for the Court, what I see the result of the Eighth Circuit's opinion being which is -- severely added complication to the antitrust laws, the destruction of the parens patriae legislation, both for the states and the private opt out provision in that legislation, and finally, the elevation of foreign governments to a preferred position over American citizens. First of all policy, I think if we look at the Eighth Circuit opinion, it concludes we think it sensible as a matter of policy. To me, this is indirect conflict with this Court's warning in U.S. v. Cooper Corporation where this Court said it is not for the courts to indulge in the business of policy making in the field of antitrust legislation. This Court has said many times Saint Paul Fire and Marine case and Blue Shield of Texas, so forth that the starting point in any case involving a statute language is the statute language itself. Let's look at that, Section 4 of the Clayton Act reads, any person who shall be injured in his business or property by reason of anything forbidden in the antitrust law shall recover, is the business or property -- William H. Rehnquist: Mr. Thomas, if you -- why didn't the Congress simply say any person injured rather than injured in his business or property? John E. Thomas: Well, Your Honor, that Senator Hoar's Section 7 amendment I guess to Senator Sherman's initial proposal, and at that time, Senator which I believe did basically read that way. Senator Hoar said there is no change. It was well understood. His amendment has change to business or property. So I would say that it reads the same way. The dictionary, Black's Law Dictionary of course says or is in the disjunctive and Mr. Justice Rehnquist, I will touch back on that a little more directly, I'm coming to it. Legal scholars, all of them who have touch on this, who have considered this question, all of them, through Professor Sullivan, Professor Bork, all of them say that it's in the disjunctive business or property and the consumers has standing to recover from money paid for price-fixed goods. Professor Sullivan says that Mr. Justice Holmes noted it was in the disjunctive. Judge Wyzanski in referring to this Court said that Congress and the courts have frequently shown their regard to Sherman Act as an economic charter of freedom of hardly less than constitutional dimensions. It deserves ungrudging and as sometime said liberal reading to accomplish its purposes. Now, this Court in Pfizer versus India where Mr. Justice Stewart wrote the majority opinion with Justices Brennan, White, Marshall, and Stevens said this, the petitioner's argued that the antitrust laws were intended to protect only American consumers, and those Justices who here this morning said concluded clearly therefore, Congress did not intend to make the treble-damage remedy, and I'm going to hammer on that term remedy, available only to consumers in our country. That was what the majority said. The dissent lead by or written by Mr. Chief Justice Burger with Justices Powell and Rehnquist said this, as this Court observed last term, the legislative history, the treble-damage remedy which does exist quoting form Brunswick now indicates that it was conceived of primarily as a remedy for the people of the United States as individuals, especially consumers. And then, this is the language of that three judges. It said, what we so recently saw as primarily a remedy for American consumers is now extended all nations of the world, and that was the cause for the dissent. Mr. Justice Powell who wrote a separate dissent noted this all important case of Georgia v. Evans where the State of Georgia by the asphalt for its roads was a consumer? And Mr. Justice Powell apparently saw no direct legislative history but he said this, in Georgia v. Evans, a clear policy to protect the states of the union was reflected and the antitrust laws and in the legislative history. The court could perceive no reason for believing that Congress wanted to deprive a state such to consumer here as purchaser of commodity shipped in interstate commerce of the civil remedy, there is that term remedy again, of treble-damages which is available to other purchasers who suffer through violation of the Act. Those are the words of all the Justices here, those three. Now, remedy, come back to that term remedy, legislative history, we can go right back to Senator Hoar where he in 1890, he raised this question. He said to Senator Sherman, he inquired and he said -- he asked Sherman if the purpose was to give private citizens a civil remedy in the courts. Senator Sherman replied, certainly, the second section gives a private remedy to every person injured. Now, this Court in U.S. v. Cooper Corporation cited and relied on that and said in U.S. v. Cooper, private purchaser is given a remedy under the antitrust laws. In footnote 10 of the Brunswick Corporation versus Pueblo Bowl-O-Mat, this Court again is considered what legislative history there is and concluded, it is a remedy, a specially for consumers and it is opening the door of justice to every man. And that's why we're here this morning. The result of the Eighth Circuit is this as I see it, and that's why I ask this Court in -- to reverse. Defendants defined property, they say this. This Court should now hold the property is this they say, “a commercial pursuit or interest unconnected with one's business or primary livelihood.” Well, we've heard Judge Wyzanski say what this Court had said over the years that the Sherman Act is of constitutional proportions. This type of definition belongs in the Internal Revenue Code. As we all know from that code, this is the type of thing you get there where we would fight over. Is it connected? Is it unconnected with one's business? What is the primary livelihood? Their definition would turn the antitrust as a private antitrust practitioner. It would turn it into a three-ring circus, and I used to be a tax lawyer many years ago. John Paul Stevens: Mr. Thomas, do you suggest that the words business or property are used in the disjunctive? Do you suggest they have different meanings? John E. Thomas: Yes, Your Honor in my brief I believe or and I know it was repeated in the amicus. I'm not sure if it's in the -- my petition on my brief, but the labor exemption under the Sherman Act defined, that's the only place where we see property and business defined separately. Property basically equals dominion over something. Business really equals what your time is spent on in a game. John Paul Stevens: Well, this is property could -- isn't property always a business? John E. Thomas: Excuse me? John Paul Stevens: Could you ever be injured in your business without also being injured in your property? John E. Thomas: Yes, I would say it does have to be a commercial transaction in our market place, in our free enterprise competitive society, where it's just general distraction to trees for example, from pollution, no. As FedEx recreation type of activity -- John Paul Stevens: You mean if conspiracy somehow rather by slowing down scientific progress is -- cause damage to a lot of trees, that wouldn't be injury to property? John E. Thomas: Yes, but not -- John Paul Stevens: Not on business, I see. John E. Thomas: Right, exactly. John Paul Stevens: But what if you're a lumber company, would that be an injury to your business then? John E. Thomas: Then, we get into the target area question Your Honor which Judge Larson did describe and did find here. If it's caused by Oil Company's fixing the price of gasoline driving down the highway -- John Paul Stevens: Well, maybe it isn't that important, but I just didn't quite understand how one could have an injury to his business that was not also an injury to property? John E. Thomas: Oh, an injury to business, not an injury to property? John Paul Stevens: Yes, there was not also under your theory clearly also an injury to property and so I wonder how significant the disjunctive is? John E. Thomas: Oh. Well, Your Honor, I guess what you're saying is that if it affects you on the balance sheet, it is money and that it causes a decrease. I was thinking of that yesterday Your Honor again. And generally, I guess everything goes to the bottom line in our business society, and that is a tough one. So long as you're in business, I guess that would be a property damage. William H. Rehnquist: Mr. Thomas, suppose that it in the course of an antitrust conspiracy, someone like your client who was not in business is slandered. Do you think that that would be an injury to her property? John E. Thomas: No, absolutely not. You have to be in business. There are many antitrust cases that do hold that in fact, they have one file on myself a business slander is compensable under the antitrust laws, but not for a individual consumer, no. They would have to be in -- William H. Rehnquist: In business. John E. Thomas: -- business pursuit, yes Your Honor. The result as I see it -- oh, and that's a trilogy of cases decided by Judge Williams out in California and if you read those, you'll see one in particular. This is the further complication that will come up. He anguished, he felt he might be creating a Frankenstein monster here because he said, suppose a woman goes and buys two dresses. One, to use in putting on an opera for profit, second one, to go out anniversary dinner with her husband. The first one subject to compensation under the antitrust law, second one, apparently not. And he was in anguished over that and saying in effect what am I doing? Help me out Ninth Circuit, help me out Supreme Court, and Judge Nickerson said in the Theophil case in New York he said, he hoped this Court would hold. The Ninth Circuit has reserved opinion. The Eighth Circuit has destroyed the parens patriae legislation because its derivative for the states as to the actions of consumers. They're representing consumers. Secondly, here's an interesting point. The parens patriae legislation has an opt out provision, an opt out provision for private parties. Now, that would be if this Court doesn't reverse the Eighth Circuit that would be like a pilot announcing at 30,000, “This plane is in trouble ladies and gentlemen. You all of course are free to bailout, but obviously we have no parachutes.” And you see what I'm saying? The opt out provision is opting out into nothing under the parens patriae. If unless there's a private right of action for that person. Foreign governments as we now stand, combining this decision by the Eighth Circuit with the decision in Pfizer versus Government of India, foreign Governments are now preferred over American citizens, and that foreign governments buy price-fixed goods from defendants, supplied them to their citizens. Let's say its antibiotics, let's say its hearing aids. Trun around, an American citizens buy those same prize-fixed goods from the defendants. The foreign governemnts can come in and has standing before this court because the Eighth Circuit in their opinion to get around Mr. Justice Holmes and Chattanooga Foundry. The Eighth Circuit said that that was a business injury, arguably a business injury. And you better believe that foreign governments will be in here arguing obviously that in every instance, it's a business injury for them, supplying water, supplying hearing aids, supplying antibiotics. But what about American citizens? Surely, they may come before this Court. And that was when -- the only the Eighth Circuit really got around Mr. Justice Holmes. I see no way of getting around. He really saw this and defined it. And I would please ask, these are my main points that I wish to touch on, to hit on, and I'm keenly interested if the Court has any particular area. John Paul Stevens: The only question I have Mr. Thomas, do you think Illinois Brick case has anything to do with this case? John E. Thomas: Wow! The question here this morning Your Honor, no. I'm the counsel in Beckers, you may or may not know that, the case that was just denied cert, but it has nothing here. But of course, the first thing I'm going to be hit with when we go back is in Illinois Brick motion and I think that this Court, if it saw fit in his wisdom, there's a footnote. That is to me is purely a question of law that could be decided in that “pass-on” is not in this case. It's a retail price fixing question. And therefore as a matter of law, Illinois Brick does not apply. But the defendants have said in the footnote in their brief that they're going to bring an Illinois Brick motion as soon as we get back down, anticipating reversal by this Court. So yes, it does Your Honor, but not here this morning directly. Is there any other area that anybody would -- Warren E. Burger: Probably, no questions at this stage -- John E. Thomas: Thank you very much. Warren E. Burger: Mr. Shenefield. John H. Shenefield: Mr. Chief Justice, may it please the Court. In deciding as it did that the consumer has insufficient standing, that it has not been injured in its property. The Eighth Circuit at least as to the retail trades in this country, created an antitrust exemption, except for the Government. $1.3 trillion of commerce, nearly 50% of the gross national product of this country would be removed from the effects of private treble-damage actions. And that fact remains in spite of the thrust of the legislative history, in spite of a clear meaning of the language in my view, in spite of the language used by this Court in many recently decided cases, and in spite of the obvious policy purposes of the treble-damage remedy. For commerce at the retail level, the Court of Appeals simply deprives antitrust enforcement altogether of the benefit and assistance of private policing and the private attorneys general. And in so doing, the Court of Appeals I think does violence to the twin policy purposes that this Court has ascribed to private antitrust enforcement, compensation and deterrence. Compensation, because the only victims of the antitrust violation at the retail level are unable to sue. Deterrence, because the violations and the violators of the antitrust laws simply do not have to be concerned about the threat of private suits. Indeed, it could be argued that antitrust violations would be encouraged by this ruling if it were made -- if it were generalized because a violator rather than having to anticipate that he would be deprived of the fruits of the illegality, in fact could count on garnering storing up retentions of the fruits of antitrust violation. Now, analysis begins with the language of the statute. Injury alone Mr. Justice Rehnquist would not be enough. That is the standard under Section 16 of the Clayton Act for anticipatory injunctive relief. But the legislative history makes clear I believe that in formulating a remedy and requiring a proof of standing in order to achieve right of damages, there had to have been some kind of injury to business or property, that is injury to a commercial interest, not in business (Voice Overlap). William H. Rehnquist: Business or property exclude that would not have been excluded if it simply uses the word injury. John H. Shenefield: Physical injury? Injury to reputation? Injury of a non-commercial nature that did not implicate the parties commercial interest, and we strongly believe that a consumer who makes a purchase in the open market has a commercial interest. Mr. Justice Stevens, you can injure business in my view without injuring property. You can injure business by denying business opportunity, an exclusive dealing arrangement for instance in violation of the antitrust laws might not injure a plaintiff in his property, but could conceivably injure his business by denial of business opportunity. John Paul Stevens: Wouldn't -- if such a violation occurred make the business less valuable, and therefore hurt his property? John H. Shenefield: You would not have (Voice Overlap) John Paul Stevens: I don't know if this is crucial, but it has -- John H. Shenefield: I agree. You would not have to prove it in my view in order to have standing to sue against the antitrust violation. John Paul Stevens: Well if you're presumably pursuing under Section 4, you try to get some money, you have to prove actual damages in order to have something to treble? John H. Shenefield: You have to have a foregoing business opportunity that is calculable, that's correct. Byron R. White: And I gather that you can be injured in your property without being injured in your business. John H. Shenefield: And I think that's the essence -- Byron R. White: That's this case? John H. Shenefield: That's this case and that's the essence of this Court's decision in the Chattanooga case in 1906, it's the essence of the decision in Pfizer with the foreign government was not in any business as such. Byron R. White: And the property interest here is being deprived of too much money? John H. Shenefield: The property interest is in being overcharged, having money diminished as the result of violation of antitrust laws as the court described in the Chattanooga case. The disjunctive in my view was put there with the purpose to offer alternative grounds for plaintiffs to reach the courthouse door. This plaintiff reaches the courthouse door because she had her property diminished as the result of an overcharge. Now, the legislative history I think, there are bits and pieces of it that the Court of Appeals has cited. There are bits and pieces of it in both in all of the briefs. I think the fairest thing to be said about the legislative history is that many of the legislators believe that the Sherman Act and the Clayton Act were enacted to assist to consumers in the fight as they put it against the monopoly profits of the trust of the day. Many of course also were concerned about the small business competitors. No one suggested in the debates that consumers were ousted, that consumers would be unable to apply to the court for remedy. The sole debate in the legislature as nearly as anyone can tell, was about the degree of effectiveness of those remedies. Whether or not they went far enough, but no one suggested that there was not an antitrust consumer remedy there. William H. Rehnquist: When you say consumer, you mean all of the purchaser? John H. Shenefield: I mean -- in this case, an ultimate purchaser, a direct purchaser in this case, Illinois Brick is non-implicated in this case because you have a direct purchaser. But a consumer it seems to me in common parlance most often means direct purchaser. Potter Stewart: The Illinois Brick issue was not here, is it? John H. Shenefield: That's correct. It's not here because the Court of Appeals (Voice Overlap) Potter Stewart: There's a difference of opinion as to its applicability as you know. John H. Shenefield: But there is -- this plaintiff was a direct purchaser. The rationale of Illinois Brick -- Potter Stewart: The issue here is not an Illinois Brick -- John H. Shenefield: That's correct. John Paul Stevens: Given the understanding of the reach of the Commerce Clause in 1890 by the people who enacted the law, it's really sort of unrealistic to talk about whether they actually thought about this particular kind of action, isn't it? That's probably why they can discuss it very much. John H. Shenefield: Well -- John Paul Stevens: Again, that may not be dispositive here, but -- John H. Shenefield: They didn't discuss class actions obviously, but there is language in the debates of discussing consumer actions, individual rights, the rights of individuals to recover. Warren E. Burger: Taking quid that if time for that to surface, hasn't it? John H. Shenefield: It was not until Rule 23 and until the class action procedure was developed. It simply wasn't an effective remedy for an individual (Voice Overlap). Potter Stewart: For large purchasers? John H. Shenefield: For very large consumers, that correct. Potter Stewart: Municipalities or -- John H. Shenefield: That's correct. Potter Stewart: -- foreign governments? John H. Shenefield: That's correct. But antitrust in general is regarded as having been designed to promote consumer welfare through the protection of a competitive process. This Court described it as better products than lower prices in the Northern Pacific. It's simply cannot have been the purpose of Congress in formulating a treble-damage remedy. In aid of consumer welfare, to deny that remedy to the very persons that the laws were denied were designed to protect in the first place. In Chattanooga which is controlling in this case, the court held that the city there was a buyer of goods as is Reiter in this case. Chattanooga paid more for those goods as a result of an antitrust violation, as did Reiter in this case. Chattanooga's property was diminished as a result of that overcharge. And so to was Reiter's property diminished in this case it is alleged. The court held that Chattanooga therefore was injured in its property and could come into court under Section 4. Does it really make sense to think of Chattanooga, a consumer, a city, that has standing to come into court entitled to recover? Or even a foreign Government as a consumer entitled to recover? And not admit U.S. citizens, American citizens to court as consumers entitled to recover? There is nothing that rules that out in the Eighth Circuit opinion. Indeed, its whole suggestion is that consumers simply do not have an adequate interest in prosecuting and suing antitrust violations to be permitted to come into court. The legislative history, their language of the statute, the words of this Court, and above all the policy purposes of the private treble-damage remedy under the antitrust laws all argued strongly for permitting citizens to come into court as consumers. John Paul Stevens: Mr. Shenefield, it just ran through my mind that you said does it make any sense, did it make any sense for Congress to say in substance that if a citizen has a claim that worth over $10,000.00, he can raise it -- raise the federal question federal court but he only has a $10.00 claim he may not? Yet, they did just that. John H. Shenefield: I would hate to be examined on which aspects of the congressional letters has made sense and which did not. John Paul Stevens: But there is a difference I suppose, the practical difference between a suit by a city for a million dollar pipe purchase and a $10.00 purchase by an individual. John H. Shenefield: It seems to me that if you have no plaintiffs here, if you have a retail sale in which there was an antitrust violation and there is no plaintiff whatsoever, that you come inevitably to the conclusion that Congress simply could not have intended that kind of a situation. Warren E. Burger: Do you recall, Mr. Shenefield, the legislation that was introduced within recent years, two or three at most, it was called the toothpaste amendment that -- because one of the illustrations was that all of the consumers of a particular brand of toothpaste could tack their claims, mass their claims at 75 cents per tube, and achieve federal jurisdiction under the same concept you're presenting here today. That was rejected by the Congress or at least it was not enacted here. Are you familiar with that Mr. Shenefield? John H. Shenefield: I'm not, but the -- Warren E. Burger: It was called the toothpaste amendment because that's the way the debate in the Congress evolved. John H. Shenefield: The most recent congressional utterance on this subject specifically that we know about is the parens patriae amendments in 1976 where at least this Court found a new procedural device for achieving old and existing substantive rights was being created. Warren E. Burger: Do you see any difference, any basic difference between massing the claims or tucking the claims of consumers of toothpaste and doing so with reference to hearing aids or electric toothbrushes or whatnot? John H. Shenefield: Well, whether or not there is a philosophical difference, in my view, there's a clear legal difference because of the statute and the scheme of enforcement of antitrust laws, where the private remedy was designed to promote enforcement, to supplement enforcement, where it was more than simply a compensatory device, where the deterrent effect of enforcement -- Warren E. Burger: Wouldn't there be a deterrent effect if “X” millions of people are allowed to 10 cent per toothpaste rebate? You could -- have no difficulty with the jurisdictional aspect if you could mass them and -- I have difficulty seeing the difference between what is being advanced here and -- if your view prevailed, you wouldn't need an amendment to the statute to mass with the toothpaste claims would you or toothbrush claims? John H. Shenefield: I don't think I'm not familiar with the proposed amendment, but I don't think that amendment could have been in the context of antitrust laws. William H. Rehnquist: Well, there's no jurisdictional limitation -- John H. Shenefield: That's correct. William H. Rehnquist: -- or minimum on any view private antitrust jurisdiction. John H. Shenefield: That's correct. But the parens patriae legislation assumed that there did exist a substantive right of recovery for consumers, and the parens patriae legislation -- if the Eighth Circuit's opinion is affirmed and it's generalized, the parens patriae legislation is entirely vitiated because there will be no consumer right of recovery. Thank you very much. Warren E. Burger: Very well. Mr. Attorney General? Warren Spannaus: Thank you. Mr. Chief Justice and may it please the Court. The states are interested in this case because of the state's increasing role in antitrust law enforcement. The language of Section 4, the legislative history, and the overwhelming way to the case law supports non-business consumers standing. But even more importantly, the existence of non-business consumers standing is important in the overall scheme of antitrust law enforcement. Threat of treble-damages is a strong. Indeed, the strongest threat against antitrust violations. Denial of standing the private purchasers would certainly reduce the number of treble-damage actions. This would defeat the two major purposes of Section 4 to deter violators and deprived them of the right of real --- to keep their illegal profits and two, to compensate victims for their injuries. This would of course the states recognized the importance of non-business consumer standings. Criminal prosecutions and government civil actions certainly are not sufficient deterrent. Public agencies do not have the ability to bring every possible action. The Justice Department can only bring about 60 to a 100 cases a year, and states are severely and similarly restricted. Excuse me. The lower court exhibited a strong disliked towards private consumer actions saying that they were either coercive by nature or many time non-meritorious. The states disagree with this and the Congress has disagreed. Affirmance of the Eighth Circuit opinion would eliminate all nine business consumer actions. Certainly, there are many cases when private parties can bring a lawsuit on their own and there are certainly many cases when the class would be small enough to be manageable. For example, a conspiracy to fix real estate prices on residential homes and a particular area could give a small group of individuals enough economic incentive to bring an action on their own, or an individual who purchase a large quantity of goods over a -- or a large quantity of a single item over long period of time. For example, a life maintenance drug might have the incentive to bring an action on his own individually. The remedy for a non-manageable class is a refusal to certify the classes and a remedy and the remedy for a non-meritorious action is either dismissal or summary judgment. Next, we would like to discuss the parens issue that was raised here a few minutes ago. Ideally, the parens patriae authority should not be an issue in this case. However, we would hope that this Court would not rely on the parens issue as to the Eighth Circuit to deny private rights. The parens issue was not meant to be a substitute for all private actions, it was meant to be a supplement and not a replacement. Making parens exclusive remedy would certainly -- was not the intention of Congress when they pass the Antitrust Improvement Act of 1976. William H. Rehnquist: Do you say parens, Mr. Warren Spannaus, you mean parens patriae? Warren Spannaus: Yes, sir, parens patriae, excuse me Mr. Justice Rehnquist. William H. Rehnquist: Its derivative, isn't it? I mean if you were to hold that the consumers had no right here, it would rather significantly diminished the scope of the parens patriae. Warren Spannaus: Yes, Mr. Justice Rehnquist, that certainly could be -- we would have some very difficult problems under Footnote 14 of the Illinois Brick case. Although, we would still argue the attorneys general and the state would still argue that we had a substantive remedy created by the Act. William H. Rehnquist: That you as parens patriae say that State of Minnesota could recover for Mrs. Reiter's lost, eventhough she could not herself? Warren Spannaus: We would argue that weight. But the reason that we feel that this -- that private actions are important is because first of all, the states don't have the resources and the ability to bring all the possible meritorious actions that may exists. And secondly, it could make the whole situation become very political if the Attorney General had to bring every conceivable action in the state, he might then be forced to bring some actions you wouldn't normally bring because he felt that without merit, and it bring a merely to make sure that he wasn't criticize at some future date for not bringing the action. And so the other provision that -- excuse me, that Congress granted was the opt out provision in the Bill itself. Congress said that individuals who didn't feel they wanted to participate in the action of the Attorney General and wanted to retain their own private right to sue could opt out of any specific action that their Attorney General might bring. And Congress also provided for an opt out provision by the entire state. Upon action of the legislature, the Attorney General can be prohibited from bringing any action whatsoever, and you could find the very serious and difficult position that a consumer in one state would have a remedy because his legislature did not opt out, and a situation in other state where his state did have an opt -- did opt out and he have no recourse under the federal law. And so, it's clear I think in the legislative history that Congress was did not intend the attorneys generals to be the exclusive parties in this matters, and that private rights were intended to remain because of the two opt out provisions. And as I said earlier, it's -- the attorneys general don't have the resources to bring all the potential actions in their state. Finally, this Court has expressed concern with the complexity of the treble-damage actions and stated recently that the already protracted treble-damage proceedings should be kept as simple as possible. The states would like to suggest that this would -- affirmance of the Eighth Circuit would merely make it more complex situation because in entirely new line of thinking would have to be device new body allotted to determine whether or not it was a business or a personal purchase, and whether or not the business purchase was used as intended for genuinely business purpose. So, we would like to -- we would respectfully hope that this court would reverse the Eighth Circuit, that the affirmance of the Eighth Circuit would frustrate the underlying principles of the antitrust laws, that would permit a price fixer to keep his ill-gotten gains and deprive the victim of his most effective remedy and have no means to be compensated, and it would eliminate a major deterrent to treble-damage actions, and so we would urge this Court to reverse the Eighth Circuit and reaffirm the existence of non-business consumer standing. Warren E. Burger: Your colleague referred to the Eighth Circuit opinion as being basically a policy decision, given the background in this whole area, is this not something Congress could correct very, very swiftly if the Eighth Circuit is wrong in the statute? Warren Spannaus: Well, Mr. Chief Justice, it -- Warren E. Burger: Or if they thought that the Eighth Circuit was perhaps correct but they wanted to enlarge their remedies. Warren Spannaus: I think that it's clear Mr. Chief Justice, I think it's clear from the legislative history that Congress has always felt that this -- that consumers did have the right to bring this actions. However, if the Eighth Circuit were affirmed, there would be a lot of immediate activity to have this corrected, but I feel that that would certainly be unnecessary and in all due respect, sometime very time-consuming because Congress does not always act as swiftly as one might hold. Warren E. Burger: Well, were often -- its often suggest that that we should -- the court should take steps because the legislative process is will put on the slow side. That's not a reason for its decision, is it? Warren Spannaus: No sir, Mr. Chief Justice, it's not. However, I think that Congress has already acted and through the reading of the language of the legislative history of the Sherman Act as we've talked about here earlier, and also the discussions that were back in 1973, 1974, and 1975 when the antitrust to prove an action to pass it, Congress already assumed that the consumer had -- the consumer had this right, and consequently, they felt that there was a necessary to make it any more clear. And I think that the courts if I may say, the Eighth Circuit has gone beyond what the Congress intended and they are the once who have acted in the policy and the legislative way rather than this Court doing the same thing if they reverse the Eighth Circuit. Harry A. Blackmun: General Spannaus, your brief is joined by 49 states? Warren Spannaus: Yes Mr. -- Harry A. Blackmun: Is Pennsylvania --- which is the missing one? Warren Spannaus: Mr. Justice Blackmun, the only state who was not participating is the State of Georgia. Harry A. Blackmun: Does that imply they're on the other side of the case? Warren Spannaus: No, it's not. It's -- the Attorney General of Georgia, Mr. Arthur Bolton has not participated in the Antitrust Improvement Act of 1976 in using in any of the funds, and so he is also decided not to participate in the amici. Harry A. Blackmun: He is frequent litigator here, I wonder? Warren Spannaus: He is a fre -- John Paul Stevens: Of course Georgia recovered once as a consumer, isn't it? Georgia case with -- Georgia was the plaintiff? Warren Spannaus: That -- John Paul Stevens: Maybe he doesn't need the statute -- Warren Spannaus: Mr. Justice Stevens, that's probably the reason he figures he can do it on his own. But the other 49 states have. Thank you very much for allowing as to participate. Warren E. Burger: Mr. Wilheim. Julian R. Wilheim: Mr. Chief Justice and may it please the Court. My name is Julian R. Wilheim, and I am one of the attorneys who will argue today for the respondents, the other one being Mr. Elliot S. Kaplan. With the Court's permission, I will try to devote my time primarily to the background of the legislation involved in this case and the legislative history that goes to the question here which is a very narrow one. Accordingly, I will use 15 minutes or less in the process. I would like initially to put into perspective what I haven't heard yet this morning. This is a case involving a very narrow issue. It purports to be a class action but as yet, there has been no certification of the class. So, we are talking essentially about a plaintiff named Mrs. Reiter. The complaint in the case and the pleadings are in the appendix before the Court speaks on occasion as if there had been price fixing by these respondents, as if there had been a retail price maintenance program. While it is true that in a motion to dismiss which essentially is what this motion was that raise for standing issue, the facts that are well pleaded are admitted for the purpose of the motion. The motion did not admit either legal conclusion or facts that do not exist. This is not a price fixing case, and the reason I wish to emphasize that is that in the opposing briefs, there is a concerted effort to post the case as a price fixing case. And therefore, they indicate as if the respondents were doing something that is per se bad under the antitrust laws. We have noted in a footnote in our brief in our position that with respect to Beltone Electronics Corporation which happens to be my client. We have been in a very long Section 5 FTC case in which the administrative law judge has found flatly that Beltone does not fix prices. Potter Stewart: Well, Mr. Wilheim, is the thrust of your argument then that if this were a price fixing case that plaintiff would have standing? Julian R. Wilheim: No, sir. Potter Stewart: Then, what's the point of it? Julian R. Wilheim: The point is I do not want this Court to have a psychological view that these are these bad things call price fixers as distinguished from other violations of the antitrust laws which for example would come under the Sylvania case under the rule of reason. Potter Stewart: But the merits of the case aren't before us at all here are they? Julian R. Wilheim: No, the merits are not before you know, should they be at this moment. But on the other hand, candid of the court should require the petitioners to point out not again and again and again and again as they do in their briefs that these are price fixers. John Paul Stevens: But Mr. Wilheim, if we should adopt the rule that you urge us to adopt, it would apply to price fixers. So, I don't know why that's an unfair argument. He's saying we shouldn't adopt the rule that will give him immunity about to price fixers. Julian R. Wilheim: True Justice Stevens, but what all I am saying at this point, -- John Paul Stevens: You're not one of that class? Julian R. Wilheim: -- is that I don't want the Court to get the impression that they are dealing with these bad fellows called price fixers. John Paul Stevens: Nevertheless, you're the spokesman for those bad fellows on that issue we have to decide. Julian R. Wilheim: Which is not based on price fixing, it's based on -- John Paul Stevens: Yes, but you're still the spokesman for the price fixers because the way we decide the case will depend -- will determine how those people can act. Julian R. Wilheim: Inferentially, I presume that if you go to the white world that is true. John Paul Stevens: You better take the hard facts and meet them square-on. Julian R. Wilheim: Now, we're dealing with the statute that is now 90 years old. Judge Larson in the Reiter decision at the outside -- at the outset of this case denying the motion to dismiss for lack of standing very amply pointed out at page 937 of his opinion that nobody knows what the word consumers meant when the Sherman Act was on the consideration. Nobody knows what Congress was thinking about at the time with regard to retail consumers except if you read the history. You find that there was great concern in the Congress, that they would be interfering with state's rights and state's jurisdiction if they dealt with the kind of retail consumer that we have today in our society. In the context of the society at the time, we had come to the end of the first 100 years of the republic. There had been a depression in the 70's, there had been a depression in the 80's, and there had come along in our economic society, this then new thing which we called trusts. There were corporations and corporations where to some degree regulated by the states, but there where these trusts which were completely unregulated. And there was this squabble going on between the Democratic Party and the Republican Party at the time over protective terrors, and people were clamoring for some halter on the trusts as they were called at the time. President Grover Cleveland made a speech to the Congress in his third message on the state of the union that something had to be done about the trusts. And in 1888, Senator Sherman in the 50th Congress introduced resolutions to the effect that something had to be done about the trusts. We finally get to the 53rd Congress where we had his bill, Senate Bill 1, which was the forerunner of the Sherman Antitrust Act. And if you read this legislative history carefully, the bill was finally sent to the Senate Judiciary Committee and it came out in a relatively few days with nothing left except its title, S1 and Senator Sherman's name absolutely obliterated everything he had in his bills except his name and the title. The Bill came out of the Senate Judiciary Committee, and for the first time, we had this phrase that we're worrying with here today called business or property. What does it mean? The various members of the Senate Judiciary Committee talked about the small businessman, the small mechanic who is in business. He talked about small farmers, and you can find in there references to problems such as the one I remember most specifically, if a small tobacco farmer had to go to the “trust” to buy baling cotton to bale his tobacco and he was overcharged, this was the kind of commercial enterprise we were talking about. Nowhere do we find any definition of property such as we try to find in the dictionary, the Webster's International on the bridged, Black's Law Dictionary, I went back to Bouvier's Law Dictionary of my law school days of many years ago, nothing that will give us a guideline. All that you can sense out of this total legislative history on the Sherman Act was they were talking about business or property in the total commercial sense of property involved in business. Speaker: I heard today that they didn't talk about the class actions. Julian R. Wilheim: They did. There was reference to a class action. There was even reference to setting up a dual jurisdiction between the federal and the state courts for class action, and then Congress turned tail and said forget it, because we're worried. We think our only basis for enacting this kind of antitrust legislation is the Commerce Clause. Now, we hear 90 days later -- 90 years later about the consumer, and I think Mr. Chief Justice is correct. The answer relies not in this Court, it's a different society. It's a different world. It's a different economic picture. If the consumer needs a protection that we're trying to engraft on this ancient statute, this unequated statute in that sense, the remedy lies in the Congress. William H. Rehnquist: Of course, the insurance industry heard about it 55 years later in southeastern underwriters. Julian R. Wilheim: Yes, they did. Yes they did Mr. Justice Rehnquist. But, we're talking about a retail consumer for personal use of articles of where if you will. In this case -- John Paul Stevens: What do you do about all the language in the cases and debates and all about the purpose to protect consumers as the ultimate objective of this legislation? Julian R. Wilheim: I think in many instances, nobody has found out what we're talking about. The cases are there Mr. Justice Stevens, but the word consumer as we know it today has never been defined. In one of the briefs and I think it's the Government brief for example, there's a citation to the text written by Areeda and Turner, and I checked it out and I'm amazed to find that in that reference, these office have a heading in black letters called consumers and non-commercial plaintiffs. I really would like to know what he's talking about because when you read the next half a dozen pages, it says unclear as a mist. But why did he, this notable text writing used the word consumers and non-commercial plaintiffs? He must have had something in mind. John Paul Stevens: Suppose they had Mrs. Reiter in? She seems to fit that class. Julian R. Wilheim: Consumers and non-commercial plaintiffs. Are they two different kinds of people, or is it one? If consumers meant in 1890 what I think it matters from reading the extensive legislative history, then non-commercial plaintiffs used today or Mrs. Reiter, and while she is a consumer in our modern society obviously, she was not that consumer about which the Congress was talking in 1890. When we turn to the 1914 Clayton Act legislative history, there is no help to be found. They simply reiterated what was Section 7 of the Sherman Act. Now, I've heard some talks here today about parens patriae and about direct purchasers. This plaintiff was not based on the pleadings and could not have been a direct purchaser. She bought from a retail hearing aid dealer, she did not buy from these manufactures, and I don't know where Illinois Brick is coming into the picture if and when we ever go back to the lower court. With regard to parens patriae, I went through the legislative history of the 1976 statute very carefully because in the Government's brief, they say it's a procedural device. They point to Footnote 14 in the Illinois Brick case. In the state's brief, we find that the states are saying it created a new cause of action, a substantive right. And if by chance you have to interpret the 1976 parens patriae provisions, they would prefer to have it treated as a substantive provision. Well, the legislative history of the 1976 Act is quite something to read. A bill -- there were three bills in the House, there was one bill in the Senate, the bills went back and forth, There came a time when they were worried about losing the Bill because of a filibuster by Senator Allen of Alabama at the end of that particular session. There was never a conference. There was a legislative name such as I have never read in my lifetime where a motion was made by Senator Byrd, then the majority whipped. Senator Philip Hart handled it, and the upshot was two sections which were not concerned with here, the first two sections of that Act where the House's version. The third section which is parens patriae was the version of the Senate. It was the Senate's Bill. And if you read what the sponsor of the bill said, Senator Hart and his analysis of the bill as they it, he says very specifically, we created a new cause of action. In that respect with due deference to the court, Footnote 14 in the Illinois Brick case which says it's a procedural device and which says only the House Report on the Bill is just plain incorrect because Senator Hart's remarks has sponsored the Bill of the intention, the intention to create “a new cause of action.” And the Senate Report, are to the contrary, and I would say they governed it. And so, you have a new cause of action and I do not believe that an adverse rulings such as that of the Eighth Circuit will obviate the parens patriae provision or take the heart out of it. I think that is all that needs to be said on the legislative history, and that I can sit down. Warren E. Burger: Your timing is very good Mr. Wilheim. Julian R. Wilheim: Thank you, sir. Warren E. Burger: Mr. Kaplan. Elliot S. Kaplan: Mr. Chief Justice, may it please the Court. Mr. Wilheim has stated for you in some reform the legislative history which unequivocally demonstrates that a consumer who purchases for non-commercial purposes does not have standing under Section 4 of the Clayton Act. I like to take just a moment to dwell on the term consumer. That term has been used throughout the briefs and throughout the morning's argument. Anyone who makes a purchase, who consumes goods, is a consumer. General Motors is a consumer. My client Textron is a consumer. Mrs. Reiter is also a consumer. The courts and the Congress never talked about consumers who purchase for non-business or commercial purposes. Today in our present day society, the word consumer is taken on some new meaning. When we talked about consumer, we think of the myriad people out there, the masses of people. The Congress in 1890 and the courts prior to the Judge Larson didn't think of consumer as that group of people. Potter Stewart: Well generally, it doesn't mean retail purchasers in common parlance today? Elliot S. Kaplan: That maybe, Your Honor. However, that is not necessary the definition of the -- Potter Stewart: What is it? What is the definition? Elliot S. Kaplan: Consumer is anyone who buys and consumes goods -- Potter Stewart: Any purchasers (Voice Overlap) Elliot S. Kaplan: That's correct. Presumably -- Potter Stewart: Every purchasers are consumer, either for his own use or in the -- for use of the purchase product in the manufacturer of other products or whatever, he consumes it, and -- Elliot S. Kaplan: That is correct Mr. Justice Stewart. Certainly -- Potter Stewart: -- whether it's a bar of soap or thousand tons of steel. Elliot S. Kaplan: That is right. However, the Congress and the courts have limited the term consumer throughout the debates in the Congress into interpretation. And I direct this Court's attention to its opinion, the opinion that Mr. Justice Marshall in the case of Hawaii versus Standard Oil. The case has not yet been mentioned this morning, which we suggest is controlling in the case -- in this case. As the court may recall, the issue in Hawaii was whether or not Hawaii could maintain an action on behalf of its citizens was not rather could maintain action on behalf of its citizens, but rather whether the injury was compensable under Section 4. The critical question was whether the injury asserted by Hawaii in its parens patriae account is an injury to its business or property. That was the critical question that this Court addressed in Hawaii v. Standard Oil. Potter Stewart: In that case, Hawaii was not suing as a purchaser, was it? Elliot S. Kaplan: It was, but that was not the issue before the Court. Potter Stewart: That's the point. That's not what was dealt with in the (Voice Overlap). Elliot S. Kaplan: That's right. It was suing its parens patriae capacity for injuries the general economy of Hawaii. And that was the issue (Voice Overlap) Potter Stewart: And through its citizenry generally. Elliot S. Kaplan: And this Court as a threshold question had to determine, what is business or property is an injury to the general economy of the State of Hawaii, an injury to business or property. This Court to Mr. Justice Marshall said like the courts -- like the lower courts that it consider the meaning of the words business or property, we conclude that they refer to commercial interest or enterprises. States can only sue when they seek damages for injuries to its their commercial interest. It couldn't be more clearly, and as articulated by Mr. Justice Marshall in Hawaii v. Standard Oil. There are many other lower courts decisions. They've also filed the same language. The Ninth Circuit decision in the air pollution case is an accord with the decision in Hawaii versus Standard Oil. Potter Stewart: But that was a state and almost by definition of the state. The state for example doesn't by a pair of shoes to wear. Elliot S. Kaplan: However, Mr. Justice Stewart -- Potter Stewart: If it buys shoes, it buys it in its commercial capacity for -- Elliot S. Kaplan: The states always has standards -- Potter Stewart: -- its people in prisons or whatever. Elliot S. Kaplan: That's correct. The states are always buying in a business or commercial sense when they are buying in their proprietary capacity. Potter Stewart: Yes, they never buy a dress to wear. Elliot S. Kaplan: They may buy a dress for nurses who work for a state hospital. Potter Stewart: Precisely. Elliot S. Kaplan: That is correct. Now, Mr. Thomas point out that Judge Williams in the famous California trilogy of case was concerned about this. The dress it's worn by the nurse and the one the she wears to a party in the evening. That may be a problem, but that can be handled very easily. All that need be done is when a plaintiff brings on action, it pleads that the purpose was for business or commercial use. If the Congress believes that that is the wrong result, the Congress can change that. That is a problem of Congress is making, none of our making. It is (Voice Overlap) William H. Rehnquist: Mr. Kaplan, what if Mrs. Reiter here had alleged he need the hearing aid to adequately perform as a lawyer. She was in the business of a lawyer -- of being a lawyer. Elliot S. Kaplan: Mr. Justice Rehnquist, if Mrs. Reiter had alleged that she purchased the hearing aid in order to carry out her profession or her chosen occupation, she would be buying it as a tool for her business or profession, which would then be protected under Section 4 of the Clayton Act. She would then have a cause of action for damages under Section 4. If she did not make that allegation, she would not have standing under Section 4. William H. Rehnquist: Though it's really just unemployed consumers kind of bit of -- Elliot S. Kaplan: That is not the distinct. It is a person who is purchasing or strictly personal use. If Mrs. Reiter has just decided that she is going to wear a hearing aid just because she wants to hear the television a bit better and she may have been overcharged with that -- of overcharged, she doesn't have standing. That was not the intent of Section 4. There has been discussion by our worthy opposition this morning that how can we allow a foreign government to sue but yet, we can't allow consumers of this country? That's a very interesting question. And obviously, this Court was not unanimous in deciding that a foreign government had standing. However, Mr. Justice Stewart in writing the majority opinion in the Pfizer case said expressly that there was no legislative history that he could find. And therefore, he looked to other areas of the law and found that foreign governments have traditionally been held to be persons who could sue in the courts in United States. In the instant case, we have a clear mandate from the Congress, and that mandate has been revealed to you this morning by Mr. Wilheim. The court in Illinois Brick recognized that not every person injured by the antitrust laws is going to have a remedy. The court said in the Illinois Brick decision, if I can find it, not every injury traceable to antitrust violation is cognizable under Section 4 of the Clayton Act. This Court further limited the right to bring treble-damage actions to those persons who purchased directly from alleged violators and refuse to permit indirect purchasers to demonstrate a pass on the allege price overcharges. This Court therefore expressly acknowledged that the decision were deniably recovery to some who may had been injured by antitrust violations by recognized the practical limits upon the sanction on a private right of action. The court was mindful that there are people who will be injured. Just as we suggest, Mrs. Reiter might be injured by alleged overcharged that came about because with antitrust violation, but there are many others who will have standing to bring the action that will serve as a deterrent to antitrust violators. I might point out to this Court that the respondents are in no -- I'm sorry, Your Honor. Thurgood Marshall: (Inaudible) I thought all antitrust was to protect the consumer. Elliot S. Kaplan: Mr. Justice Marshall, there is no question. But that antitrust laws -- Thurgood Marshall: I don't -- I have yet to find anybody sells being anything protecting me -- Elliot S. Kaplan: In response to the question (Voice Overlap) Mr. Justice Marshall, the concern of the antitrust laws is to protect the consumer welfare. That is a term that is used throughout the briefs. Professor Bork has been cited on many occasions -- let me explain that term. When we're talking about consumer welfare, the Congress and the courts had not been talking about compensating a consumer. We are talking about permitting the consumer to purchase goods in a free and open competitive society. That is the ultimate test that every court must apply in determining whether or not, there has been a substantive violation to antitrust laws. Whether or not the action will permit the consumer to buy in that open competitive society, the issue is not whether the consumer can be compensated. And that is an important distinction that we have today, the distinction -- Thurgood Marshall: I'm not protected if I'm overcharged? Elliot S. Kaplan: You are protected Mr. Justice Marshall -- Thurgood Marshall: I mean I just don't know how well of I am. Elliot S. Kaplan: Let me tell you how well (Voice Overlap) let me tell you how well of you are. Thurgood Marshall: Yes, that's -- I'll be interested in that. Elliot S. Kaplan: There are several ways that you are going to be protected. Number one in 1976, the Congress permitted your attorney to collect attorney's fees if he brings an act of injunction. Thurgood Marshall: Well, who pays for the attorney? Do I have to go get the attorney? Elliot S. Kaplan: You have to go to an attorney sir and if he collects for you in the injunction action, he will now be entitled to cover (Voice Overlap); that's right. John Paul Stevens: Still an injunction that Mrs. Reiter is going to get. Elliot S. Kaplan: She will get an injunction stopping this practice -- John Paul Stevens: Well, that's she's already got the hearing aid. She already paid for it?(Voice Overlap) Elliot S. Kaplan: The other remedies Mr. Justice Stevens are that the parens patriae action is available to her. John Paul Stevens: And so, she cannot go to the Attorney General and convince him to bring a parens patriae? Let's say she rather go to the lawyer on the corner and say all I want is about $9.00 on this thing, they overcharged me. Elliot S. Kaplan: Well -- John Paul Stevens: Does she have to go through all of these to get her $9.00? Elliot S. Kaplan: Let me just address that question if I may Mr. Justice Stevens. Let's talk about Mrs. Reiter and going to that corner lawyer because I think that may be the very cornerstone of this case. Mrs. Reiter has a minuscule claim. If she is been over -- Thurgood Marshall: Minuscule to whom? Elliot S. Kaplan: Minuscule in terms of total dollars -- Thurgood Marshall: To whom? I'm talking about to her. The person you are protected is the consumer -- Elliot S. Kaplan: Mrs. Reiter -- Thurgood Marshall: -- somebody -- it might not be -- that might be whether she eats the next day or not. Elliot S. Kaplan: It may have a direct impact upon her economic situation. There's no question about that Mr. Justice Marshall, but it is a minuscule claim in terms of the size of claims that the federal courts have traditionally heard. As Mr. Chief Justice Burger talked about the toothpaste amendment earlier, she has a relatively small claim in terms of the size of most claims are filed. She has undertaken a very complex piece of litigation. As Mr. Wilheim pointed out, this is not a simple price fixing case if there is such a thing as a simple price fixing case. This case alleges a whole garden variety of vertical restrictions imposed upon dealers who then resold the good to Mrs. Reiter. This is a complex case. Who has the real interest in this case? I respectfully submit to this Court that it's not Mrs. Reiter. It is not the consumers because they can be protected. It is rather the plaintiff's bar that has the real and direct interest in this litigation. It is they who are concerned about what's going to happen in this case. They are not concerned with the burden that's going to be placed upon the administration of justice and upon the courts of this county. By having minuscule claims of consumers imposed upon it. Bur for Rule 23, Mrs. Reiter wouldn't be here. She would not assert her claim. It's interesting that Judge Larson said that -- John Paul Stevens: Suppose she bought an oriental rug or perhaps she bought a house and didn't like the commission she was charged. She wanted to complain about the fixing of broker's commission. They're didn't like the fee their lawyer was charging because there are minimum fee schedules. There are a lot of individual consumer claims, it might have amount to enough money to precipitate litigation, and you'd rule all of those out too. Elliot S. Kaplan: That is correct Mr. Justice Stevens and I believe that we have to look at what is the intent and the object of the antitrust laws, is it just the compensating people, or is it to deter antitrust violations? John Paul Stevens: So what kind of deterrent would remain for a conspiracy among retail Oriental rug dealers if your view prevails? What would be the deterrent? Elliot S. Kaplan: The parens patriae action, the thread of government action both in United States and -- John Paul Stevens: How many of those have succeeded? How many parens patriae actions where there in the last 80 years? Elliot S. Kaplan: I'm sorry Mr. Justice Stevens, I don't have the number. John Paul Stevens: There are many out there? Elliot S. Kaplan: I don't know. Warren E. Burger: Well, is there a difference Mr. Kaplan between merchandise which is fungible and merchandise which is not? I suppose hearing aids like automobiles fall into certain categories, but oriental rugs -- one oriental rug is unlike its any other oriental rug in the world, is it? Elliot S. Kaplan: Mr. Chief Justice Burger, it certainly is a one of a kind item. I'm not sure that is valid distinction with one should be recoverable and the other not. I think it's important to understand that the respondents are not arguing before a congressional body today. We're not saying who should or who should not recover. We are simply saying let us look at the congressional history. Let us look at the cases. Let us see what has happened. That is the result. If it is an unpopular result, that is one of Congresses making, that is for Congress to correct, not for the court to say is what the law intended in 1890. William H. Rehnquist: Well Mr. Kaplan, have you been reading the papers till last year for which you realizes this Court doesn't have to reach on popular results. What about the Chattanooga language of Justice Holmes? Elliot S. Kaplan: The opposition Mr. Justice Rehnquist is certainly relied upon Chattanooga as a controlling case. Chattanooga was a case that involved statute limitations. That was the issue in Chattanooga. It involved the City of Atlanta purchasing pipe for its city sewer and water operation. It bought in a proprietary capacity. The issue of a non-commercial or non-business consumer was not before the court on Mr. Justice Holmes wrote that opinion. The issue is not there. That case is a very narrow case and it speaks only to the question the statute limitations and there happens to be some discussion about the fact that the City of Atlanta was injured in its business or property because it overpaid, and the worth of the property was overpriced because of the alleged price fixing conspiracy. William H. Rehnquist: We would at least have to divide -- disavow what you considered to be dictated in the case, would you not? Elliot S. Kaplan: No because in that case, you did not have the non-consumer purchaser. You had a state acting in a business or proprietary capacity, which is exactly what we say. The result should be in that case, and that is what the court set follow consistently since Chattanooga. The issue of a non-consumer -- excuse me, a non-business consumer was not before the court in Chattanooga. William H. Rehnquist: So, you read as a gloss on the language any injury to business or property that it must be suffered by a business consumer? Elliot S. Kaplan: No. It must be an injury to your business or to your property. The court might ask me why use both words if we're talking about a business. And I think that is a very valid question. If the court will look at the Waldron decision in saying in our brief, Mr. Waldron was an individual who was involved as kind of an investment of buying and selling oil. It was not his business. And because of some price fixing in the oil industry, he was injured in this investment. It covered his property, a commercial property. So what the Congress it simply said injury in your business, Mr. Waldron would not have had standing to recover damages under Section 4. Potter Stewart: But it was his business, it wasn't his principal business maybe. Elliot S. Kaplan: It was strictly an investment just as, Mr. Justice Stewart, if you or I bought a stock, it would not be our business or even an ancillary business of buying stocks, it's an investment it strictly something that we do. And it's a commercial property right that we would have. John Paul Stevens: I wonder if you are really fully dealt with the Chattanooga case because as I recall the case, Mr. Justice Holmes first indicated that he did not have to rely on the fact that the city was in the business of supplying water. Therefore, put the business aspect to one side, and therefore relied exclusively on the fact that there was an overcharge for property. Elliot S. Kaplan: And the property -- John Paul Stevens: -- which seems to me that take the commercial aspect out of the analysis. Elliot S. Kaplan: Well, I don't think that you can divorce the property aspect Mr. Justice Stevens from the decision. You must look at the entire -- John Paul Stevens: But he specifically did as I remember it. I may remember it incorrectly. Elliot S. Kaplan: I don't believe Mr. Justice Stevens that he defined the term property in that decision. And the only property involved in that case if we're talking about the property was a commercial property. That was the property in that case. If all you had to do was to pay more money than something was worth because the price fixing conspiracy that Congress could have eliminated the words business or property. Why are they are there? They are there for specific reason because if the Congress wasn't concern about commercial interest, it could have done with Section 4 exactly what it did was Section 16. The Congress knew how to do it when they want to provide a remedy to everyone, and they did it in Section 16. In conclusion, I'd like to point out that the fact that current taking today in the minds of the American public might dictate a congressional result different from that was the Congress reached in 1890 and again in 1914 does not provide a justification for this Court to legislate. If a new remedy is needed, then the Congress should provide for it. And again, this was the approach taken by this Court just a year ago in the famous Illinois Brick decision. This Court recognized that indirect purchasers may be injured as much or more than direct purchasers. But nevertheless, the massive litigation in administrative burden on the courts caused this Court to conclude that treble-damage actions should be limited to direct purchasers. Warren E. Burger: Well, the rather considerations beside is that -- Elliot S. Kaplan: Yes, there are. Warren E. Burger: -- in Illinois Brick. Elliot S. Kaplan: There are certainly where Mr. Chief Justice. However, the court recognized that not everybody is going to have a remedy for compensation, and that is an important distinction; the right to compensation versus the deterrent effect. The deterrent effect will be there because it almost every consumer case, I'm using the word quite loosely, in every case brought by a non-business consumer I think the court would find that there has been a companion case brought by a business consumer. Thurgood Marshall: And this is just the one you're talking about this defendant, the Beltone? Elliot S. Kaplan: I'm sorry? Thurgood Marshall: Are you talking about the Beltone case in this? Elliot S. Kaplan: Beltone case? Thurgood Marshall: Beltone, yes. Elliot S. Kaplan: That is correct. In the hearing a case of what we have right here, there were also dealer actions brought. Thurgood Marshall: Before or after his one? Elliot S. Kaplan: Prior to. And perhaps a year or two before, this case was brought. Thurgood Marshall: You assumed that I agree with you that its importance -- Elliot S. Kaplan: No. However, I point out that in terms to the deterrent effect, if the court will examine almost every action that has been brought by a non-business consumer, it will find that almost every situation. There is also been a companion case brought by a business consumer. Therefore, the deterrent effect not lost by the fact that the non-business consumer cannot bring the action. If there are no further questions -- Byron R. White: Mr. Kaplan, could you explain for me again why you think Congress use both words? Elliot S. Kaplan: In order to demonstrate that there must be a commercial or business interest involved. If they had just said business without property for example, it would have excluded the kind of industry that Mr. Waldron had who was employed in one business but was injured in an investment. A contract, he was buying and selling contracts in oil importation. Byron R. White: That's an injury to business? Elliot S. Kaplan: That wasn't his business. Byron R. White: Well, it was an injury to business. Elliot S. Kaplan: But not to his. And we believe that the court -- the Congress had in mind interest -- what about the situation, perhaps of owning a building. That is a piece of property, and that may be an investment. That is not your business, but it is a commercial property interest. I believe in 1890, the court saw distinction between the two. There had to be a reason if the court -- if the Congress Mr. Justice White had intended that everyone recover, then -- Byron R. White: It's a strange way to cover just the things you want to say is to say property, if all that we're trying to do is to cover the things you just mentioned, that's a strange way of doing it. Why didn't they just say commercial? Elliot S. Kaplan: Well certainly, we all wish we knew why they said what they said. We believe that had the converse was to be true if they intended to permit everyone to have a right for compensation, they could less -- Byron R. White: Do you think Congress intended then to cover something besides business? Elliot S. Kaplan: They intended to cover property interest, something that was commercial. Byron R. White: And the answer is yes? Elliot S. Kaplan: No. The answer is commercial property and business, and there is a distinction between the two. Byron R. White: So, it does cover something besides business? Elliot S. Kaplan: It covers commercial property interest, yes. Byron R. White: So, it does cover something besides business like I say, yes it does? Elliot S. Kaplan: Yes, it does sir. Byron R. White: So, the answer is not no? Elliot S. Kaplan: The answer is not no. It covers business and commercial property. Are there any questions from the Court? John Paul Stevens: I wasn't quite sure you start to answer why the Pfizer case wasn't important or didn't control, and I never quite understood the end of your answer, you just started discussing -- Elliot S. Kaplan: In the Pfizer decision, Mr. Justice Stewart looked to legislative history and didn't find any help to the legislative history. He then went to other areas of the law beyond the antitrust area, beyond Section 4 of the Clayton Act which uses the term person found that foreign governments have traditionally, had standing to sue in our courts. He therefore found that a foreign government must therefore have standing to sue under Section 4. In our case, we have called this Court's attention to a clear legislative history that indicates that a person who buys for non-business use or non-commercial use does not have standing. John Paul Stevens: Do you think your argument applies to foreign governments who buy drugs for non-commercial use? Elliot S. Kaplan: Mr. Justice Stevens, I can't conceive a situation where any government would buy in a non-business or non-proprietary capacity. If it is buying rugs for its state office building -- John Paul Stevens: Say they're buying drugs for their army to use to bandages to bandage up people who get wounded. Elliot S. Kaplan: In our opinion that anything -- John Paul Stevens: Would they have to -- Elliot S. Kaplan: Yes, they would. In our opinion -- John Paul Stevens: If I bought bandages for my family, I would not be? Elliot S. Kaplan: That is correct. John Paul Stevens: What's the difference? Elliot S. Kaplan: The difference being that you are not a state or a government purchaser (Voice Overlap) John Paul Stevens: There is a preferred physician to foreign government? Elliot S. Kaplan: Yes. And that is they will have -- Thurgood Marshall: (Voice Overlap) Chattanooga case if you own a big place like King Ranch and you bought a 100 million pipes to put on your ranch, you wouldn't be govern. Elliot S. Kaplan: That is correct. And you point out -- you point out the inequities of the situation Mr. Justice Marshall, and we concede those inequities may exist. They may trouble all of us. Thurgood Marshall: Yes, but where is the business in the King Ranch thing? Elliot S. Kaplan: There is no business there. Thurgood Marshall: But they couldn't until night? Elliot S. Kaplan: That's right. Thurgood Marshall: But if they set up a business there and they own the McDonalds, then they become -- Elliot S. Kaplan: They're in the business that is correct. Potter Stewart: Your answer may have been too fast, I mean I don't know about the King Ranch, but I suppose they're in the cow business, aren't they? Elliot S. Kaplan: If that's the case, I'm sorry. If they are, yes. Potter Stewart: So, your -- Elliot S. Kaplan: Then, they would be in the business, that's correct. Thank you. Warren E. Burger: Very well, Mr. Kaplan. John E. Thomas: Mr. Chief Justice and the other members of this Court, I have nothing to say in rebuttal. Warren E. Burger: I have a question -- John E. Thomas: Yes. Warren E. Burger: -- for you Mr. Thomas. John E. Thomas: Excuse me. Warren E. Burger: On your theory of the case, suppose an action were brought by a housewife saying that there were nine people in their household and they consume three loaves of bread everyday, I don't know what bread is now but it's around 50 cents I guess or maybe more, and that's 21 loaves of bread a week and she's being overcharged 15 cents per loaf and that she's acting on behalf of all the people who buy loaves of bread in St. Paul, Minneapolis, covered by the theory of your case here? John E. Thomas: That this price fixed? Yes, Your Honor and the beauty of it is that there are certain courts in this country that are managing those cases. The other side of it and the beauty of it is from the judicial aspect that the judges are free to say I cannot manage this case. There is a milk case out in Arizona where they actually sent out the class -- notices excuse me, under the court direction on the milk cartons. They could go out on the bread wrappers, Your Honor. Thank you very much. Warren E. Burger: Thank you gentlemen. The case is submitted.

Warren E. Burger: We will hear arguments next in Smith against Wade. Mr. Presson, I think you may proceed whenever you are ready. Robert L. Presson: Mr. Chief Justice and may it please the Court: This case arises under 42 U.S.C. Section 1983. On the basis of an allegation by the Plaintiff to his rights under the Eighth Amendment, made applicable through the Fourteenth, to be free from cruel and unusual punishment, this case then presents the issue of what is the proper standard for the award of punitive damages in an action under 42 U.S.C. Section 1983. Last year in the case of City of Newport versus Fact Concerts, Incorporated, this Court stated that in a proper case under 42 U.S.C. Section 1983 punitive damages were available. The question now is what is a proper case. This had not been reached before because in the Newport case it was found that municipalities were actually immune. Although the issue was not directly reached and did not have to be reached, there was a very strong indication by this Court as to what the appropriate standard for punitive damages was. In the course of the opinion in that case this Court stated that a public official who knowingly and maliciously acts to deprive one of his civil rights is a proper subject for punitive damages. This in turn echoes what this Court had said in the earlier opinion, about three years earlier, in Carey versus Piphus. Again, it was dicta. The issue of punitive damages was not strictly speaking before the Court. The Court did state that punitive damages would not have been an appropriate award under the circumstances in Carey because there was no evidence of a malicious intent to deprive of rights or to do injury. Sandra Day O'Connor: Mr. Presson, what have you been able to discover in the way of legislative history at the time of the enactment of Section 1983 that would indicate Congress was concerned about, if it so indicated, about damages, and if you didn't find anything specifically in the legislative history, what was the law generally at that time as far as punitive damages were concerned? Robert L. Presson: I'm not aware of anything in particular in the legislative history about punitive damages, and in fact I believe this Court stated, I believe, in the Carey case that Congress in enacting 1983 had never really discussed the issue of damages much at all. Sandra Day O'Connor: Would you agree that punitive damages were generally awarded in tort cases at that time? Robert L. Presson: I believe they were available, yes, as early as 1851. William J. Brennan, Jr.: In all tort cases? Robert L. Presson: Pardon? William J. Brennan, Jr.: In all tort cases were they available at common law? Robert L. Presson: Not in all tort cases, no, Your Honor. Again, I still think-- William J. Brennan, Jr.: Well, a minority or a majority or what? Robert L. Presson: --Well, I think again it becomes the standard to be applied, whether the facts of any particular case-- William J. Brennan, Jr.: Was there any burden to show intent, for example, as a predicate for punitive damages? Robert L. Presson: --In some jurisdictions there may have been. I'm not aware. Mostly I believe it was terms in phrased... phrased in terms, excuse me... of a reckless disregard. This is what this Court has stated, I believe, 100 years ago in the St. Paul case. William H. Rehnquist: Didn't the Philadelphia, Wilmington and Baltimore Railroad case, which had been decided by this Court in 1858, talk about punitive damages in terms that the injury complained of has been inflicted maliciously or wantonly? Robert L. Presson: I'm not specifically familiar with that particular case. The Milwaukee and St. Paul case cited in the brief indicates a reckless disregard or whatever that is the equivalent of malicious intent, is the way this Court phrased it at that time. That case I believe was rendered in 1875. So about that same time I believe that's the indication this Court had given as to what the appropriate standard was. I think, though, that whatever it might have been immediately preceding the enactment of 1983 or perhaps even for the short time thereafter, it is not necessarily a static consideration. Because there is so very little, in fact nothing much, said about the issue of damages pertaining to 1983, I think it is a rather fluid concept, and this Court-- William J. Brennan, Jr.: What do you mean by "fluid concept"? Robert L. Presson: --Well, in the Milwaukee and St. Paul Railway case this Court rejected what had evidently earlier been the appropriate standard of gross negligence as the standard, and said attempts to adequately define gross negligence have been ineffective, that is no longer the proper standard, and redefined the standard in terms of reckless conduct, which this Court said is of such a degree that it is the equivalent of a malicious intent. So in that sense, as early as 1875 there was an attempt to redefine what an appropriate case for punitive damages was. William J. Brennan, Jr.: For 1983 purposes? Robert L. Presson: That was not specifically a 1983 case, no, Your Honor. William J. Brennan, Jr.: Well, do you think the standard should be any stricter in 1983 cases than in other types, tort cases for example? Robert L. Presson: I believe so, Your Honor. William J. Brennan, Jr.: It should be? Robert L. Presson: I believe so. William J. Brennan, Jr.: Why? Robert L. Presson: Well-- William J. Brennan, Jr.: For example, an ordinary tort suit against a drunken driver who strikes you in the street. Do you suppose you could get punitive damages in such a case? Robert L. Presson: --It would be a possibility, depending again upon-- William J. Brennan, Jr.: By what standard? Robert L. Presson: --whatever the state standards for punitive damages were. William J. Brennan, Jr.: I know, but what do you think it ought to be? Robert L. Presson: Pardon me? William J. Brennan, Jr.: What do you think it ought to be? Robert L. Presson: For state cases? William J. Brennan, Jr.: For the kind of case I've given you, the hypothetical I've given you. Should it be recklessness, intentional, malice, something like that? Robert L. Presson: In state personal injury cases? I would say that if I were standing before the Missouri Supreme Court today I'd be arguing essentially the same thing. William J. Brennan, Jr.: That it has to be malicious intent? Robert L. Presson: Yes. William J. Brennan, Jr.: And so you would apply that standard to 1983 and to torts generally, would you? Robert L. Presson: I believe so, Your Honor. Lewis F. Powell, Jr.: Are there Missouri cases allowing punitive damages in garden variety tort cases, and if so on the basis of what standard? Robert L. Presson: The basic standard is one of recklessness, Your Honor. In fact, if you look at the instruction which was actually given in this case, that pretty much is the Missouri-approved form instruction. That was what the judge wanted to give, so he pulled out the MAI form book and used that. So that is the standard in Missouri. Lewis F. Powell, Jr.: In ordinary tort cases? Robert L. Presson: Right. Warren E. Burger: I'm still waiting for your answer... maybe I missed it... to Justice Brennan's question of why there should be a different standard for officers. Robert L. Presson: Well, I think particularly in this situation, the role of the correctional officer or any state official, who are the ones that are being subject to 1983... the qualified immunity which this Court has recognized I think would be undermined by application of any lesser standard. Warren E. Burger: Well, doesn't that in itself afford a substantial protection? Robert L. Presson: It affords a substantial protection. What it was designed to do, I believe, was to afford the protection from compensatory damages. But it would appear to me that if on the basis of that same standard you're going to allow virtually unlimited punitive damages, then you are essentially undermining the protection which has been afforded by the qualified immunity to begin with. As this Court has pointed out in other contexts, punitive damages are essentially unreviewable. Jury discretion is virtually unlimited. Sandra Day O'Connor: Doesn't the trial judge normally have jurisdiction to reduce the amount of punitive damages if the judge determines it's appropriate? Robert L. Presson: That is a possibility. But as this Court I believe stated in either the Foust or the Gertz case, this is limited by only, to quote the Court, "the gentle rule that it not be excessive. " Essentially I think, as this Court has pointed out on numerous occasions, they are virtually unlimited and courts appear to be very reluctant to interfere with the jury discretion. I know of a recent case out of the Court of Appeals for the Eighth Circuit, again the court indicating that it would probably not have made the same determination on the appropriateness of punitive damages in that case, but again on the other hand they didn't think it was an appropriate case for them to interfere with the jury's discretion in that regard. I believe the question of the appropriate standard... quite apart from the Court's previous indications in Carey and Newport, I believe the rationale behind punitive damages can only be served by a more explicit standard, and that explicit standard I believe was best defined as what this Court has indicated in terms of actual malice. The primary purpose as I see it of 1983 is not particularly punishment, as this Court noted in-- William J. Brennan, Jr.: Actual malice, define that. Robert L. Presson: --Pardon? William J. Brennan, Jr.: Actual malice; how do you define actual malice? Robert L. Presson: In terms of what this Court has said in Carey and Newport: a malicious intent to deprive one of one's civil rights or to do specific injury to that individual. Warren E. Burger: It requires an intent? Robert L. Presson: As I read what this Court said in those cases, yes, it would, Your Honor. Warren E. Burger: It isn't just a passive factor? Robert L. Presson: I don't believe it could be passive. Byron R. White: Not even recklessness would satisfy that, would it? Robert L. Presson: No, not as the standard, because recklessness... this Court has indicated in the sense of qualified immunity that one knew or should have known that your actions were going to deprive someone of his constitutional rights. And although in the context of that the Court has never specifically used the term "reckless" that I'm aware of, it seems to me that if one knew or should have known, that approaches being reckless if it isn't in fact. I think the Court then... the basic standard of liability is a reckless standard, and it was established at that level for a very particular reason. In other words, it is not enough to say, well, the level is already high, you don't need to go any higher for punitive damages, because I think the level has been set high for a very specific reason, that reason being that for state officials who do exercise discretion and who are therefore entitled to the protection of qualified immunity, that the dangers of not acting or being inhibited in their actions can often be as great or greater than their actions themselves. The Court pointed out the dangers of punitive damages and their excessiveness and unpredictability in the Foust and Gertz cases cited in the Petitioner's brief. In those cases, the Court indicated that even if confident that punitive damages may not be available, that say the labor union in the Foust case could still feel compelled to pass up fair settlement offers or to pursue frivolous claims, actions which this Court described as not being in the best interests of the union members. Similarly for state officials, their actions often affect many other people other than the Plaintiff who eventually sues them in a 1983 action. In particular here, the Defendant was responsible not just for the safety of the Plaintiff; he was responsible for the safety of anywhere from 110 to 120 inmates in that particular unit. And the decision he makes at any particular time regarding any one of them can affect the safety and well-being of all of them, and I think he needs to have the protection afforded by the qualified immunity to make that informed discretion decision without, as this Court has said, undue timidity. John Paul Stevens: Mr. Presson, may I interrupt you for just a second. You mentioned earlier that the instruction was much like the Missouri instruction, the instruction generally used in Missouri in a tort case. Was there an objection made to the instruction in this case? Robert L. Presson: To the punitive damage, yes, Your Honor. John Paul Stevens: Yes, there was. Thank you. Robert L. Presson: I believe that as far as furthering what this Court has indicated was the primary purpose of 1983 apart from compensation, and that being deterrence, it is best served by an explicit standard, as explicit as is humanly possible. Because if one cannot predict what is being prohibited or one does not know what is being prohibited, then it is very unlikely that one could be deterred. Or if one does happen to avoid what is subsequently construed to be prohibited, then it is sheer happenstance, rather than the exercise of an informed decisionmaking. On the other hand, to raise the level of punitive damages in this case, to make it more explicit, and I believe in fact to enhance the deterrence rationale of 1983, does not really do any damage to that deterrence rationale. William J. Brennan, Jr.: I thought, Mr. Presson, that the old notion of punitive damages was that punitive damages were smart money. In other words, a punishment for the offender by requiring him to pay this extra amount in order that he be deterred from doing that again in the future. Now, 1983 suits, at least this one I gather is one for constitutional rights, isn't it? Robert L. Presson: That's correct. William J. Brennan, Jr.: Well, if one has been guilty of denying someone his constitutional rights, wouldn't it deter future constitutional violations if he had to pay some smart money? Robert L. Presson: It can deter only if you can come up with a common principle such that you know what-- William J. Brennan, Jr.: Well, the common principle I'm suggesting is, he violated the Plaintiff's constitutional rights. Robert L. Presson: --That is not always in practice that easy a determination to make, particularly-- William J. Brennan, Jr.: Whether it's easy or not, we start with the premise that there's been the violation, he's had a verdict in a 1983 suit because he's been denied his constitutional rights. Robert L. Presson: --True. William J. Brennan, Jr.: All right. Well, why in that situation should not he then be subject to the payment of smart money in the form of punitive damages? Robert L. Presson: Well, again I get back to the reason for punitive damages, and that is in my mind primarily deterrence. The process of getting from a particular judgment to deterring in the future is an inductive process. In other words, from one specific instance try to reach a general proposition. And I think by examining the cases which have dealt with Eight Amendment issues in terms of failure to protect you can come up with common language, but very few what I would call common principles such that you could predict what the result would be with any reasonable degree of certainty. Some of the cases cited by the Plaintiff in his brief indicate the inconsistencies which abound in this field. One of the cases, Schaal versus Rowe, indicated that if you turn down a request for a transfer specifically when the inmate identified why he wanted to be transferred, and that was that he had been threatened, they decided it is not an appropriate case for a transfer and he subsequently then is assaulted, that that didn't even present a case for liability. They said they were not indifferent. Perhaps they made the wrong decision, perhaps they made a negligent decision. But that wasn't even a case appropriate for liability, much less punitive damages. And as I view it, we really have nothing too much more than that. I think this was a marginal case as far as a reckless standard to begin with. But I think when you look at the cases... and some of them cited in the briefs do involve decisions of correctional officers and officials dealing with custody status or transfers of inmates, which is essentially what we have here... that quite often you are presented with, in the words of one court, alternative Eighth Amendment claims. In other words, someone makes a threat, the person against whom it is made comes to complain. So what do you do? Do you put him in protective status on the basis of the mere threat? Do you lock up the person who made it? It is a difficult decision, and while in hindsight a court and a jury might say, well, you were reckless in that, I don't think that provides much guidance in the way of deterrence to the officers and officials who have to make that decision on a day to day basis. And as I say, they don't have... they have to deal with it in terms of many situations and not simply one. Sandra Day O'Connor: Mr. Presson, do you have any statistics gathered as to how many 1983 actions which have resulted in plaintiff's verdicts have also included punitive damages? Robert L. Presson: No, I did not do such a compilation. I'm sorry. Sandra Day O'Connor: Do you know how often it's happened in your state? Robert L. Presson: As far as 1983, I'm not aware of any until this one, although I suppose there could have been some actions against municipalities or other governmental units that I might not be aware of. I think the need for a more explicit standard is not only to enhance the deterrence aspect of 1983, but it is even more important to limit what this Court has indicated is the possible abuse of punitive damages, which as this Court has indicated are not designed to compensate for any actual injury. They are intended as a quasi-criminal fine of sorts and are often subject to abuse. This Court has indicated that they are subject to being used against unpopular views or against unpopular defendants. Unfortunately, in this day and age perhaps state defendants are unpopular. But I think the Court has indicated that they are subject to severe abuse, and I think in a way a higher standard of conduct, one more readily understandable, I think, and perhaps more consistently understandable, might eliminate or at least reduce the possibility for abuse. An alternative argument is that if 1983 in all instances does not require an actual malice showing, I think it does in this instance, simply because as a general procedural or philosophical matter the courts always talk in terms of punitive damages being available for aggravating circumstances. I think the very use of the term "aggravating" implies a comparative analysis, two different levels of conduct, one being higher than the other. As I stated earlier, the level of conduct in this case and applied as it is by qualified immunity was placed there for a very specific societal reason, and it was placed there because often the risks of not doing something are just as great as actually acting, and that the risk of error under those circumstances deserves some protection in making an informed decision. I think it would undermine that policy if anything less than actual malice were to be implied. I also believe it would be inconsistent with this Court's opinion in Carey. In Carey this Court indicated that you could not presume damages, even assuming proof of a constitutional violation. That being true, it seems to me we would simply be reaching the same result here by simply saying, well, they're punitive damages and not presumed damages. But in either instance, Plaintiff is saying they should both... or the punitive damages should be on the same level or the same standard of liability as the actual damages. And yet, presumed damages or punitive damages is neither one tied to the theory of compensation or to the extent of any actual injury. It would seem to be that to award punitive damages on the same standard of conduct as that for the basic liability gets around and reaches the same result which was closed off in this Court's opinion in Carey. I believe, therefore, that both the policy of deterrence would neither be inhibited... because compensatory and the threat of attorney's fees in themselves carry with it a deterrent effect, as this Court has noted on previous occasions. To the extent that any further deterrence is appropriate under 1983, I think it is best served by as explicit a standard as possible, and I say that because, unlike either the attorney's fees or the compensatory damages, which are inherently limited by actual costs or actual damages, as this Court has noted on many occasions, punitive damages have no such inherent restriction and are essentially unlimited. Lewis F. Powell, Jr.: Mr. Attorney General, if you lose this case who will pay the judgment? Robert L. Presson: Well, that's a good question, Your Honor. Certainly insofar as the actual damages are concerned, I think it would clearly be the state under the tort defense fund. Lewis F. Powell, Jr.: Under what? Robert L. Presson: Missouri has established what it calls the tort defense fund for certain state officers and officials. Lewis F. Powell, Jr.: The individual man was sued in his individual and official capacities. Robert L. Presson: Well, it wouldn't make any difference. Lewis F. Powell, Jr.: It wouldn't make any difference if he was sued only in the individual capacity? Robert L. Presson: If he was one of the named parties covered by the tort defense fund, even named individually, I think he would be covered. The question becomes-- Lewis F. Powell, Jr.: The existence of that fund... to what extent would the state be deterred by a punitive judgment? Well, that fund doesn't cover punitive damages, does it? Robert L. Presson: --Well, that's what I said was a good question. It's never really been decided because as far as I know this was the first punitive damage award against the state. What it says in its own terms is that it will pay a judgment rendered against certain specified officers. Sandra Day O'Connor: Well, the judgment wasn't against the state, was it? Robert L. Presson: Not in this instance, no, no. But the way the statute reads, it says out of the tort defense fund you'll pay judgments rendered against various officials. Included among them are employees of the Department of Corrections, as the Petitioner here. Warren E. Burger: Are these people bonded? Robert L. Presson: In some instances yes, but it's my opinion not specifically for these. In other words, for instance, wardens and superintendents are required to have bonds. Generally they have a blanket sort of bond. But what that generally covers is use or misuse of state property and damages actually suffered by the state for which the person bonded was being covered. In other words, I don't think it's sort of... it's not an insurance policy as I view it. The only protection they really have insofar as suits of this nature would be the tort defense fund, and as to that I can't give you a definite answer as to whether it would cover punitives. But it might very well. John Paul Stevens: Who will decide whether it does? Who will decide whether it covers it? I'm sure the gentleman will make the claim. Robert L. Presson: Well, it could go to the Supreme Court. There are two officials that have roles in the administration of the tort defense fund, the attorney general and the commissioner of administration. John Paul Stevens: In other words, your office has a voice in it. Robert L. Presson: We are involved in it. I think ultimately we make recommendations, as I understand it, but the commissioner of administration, as I remember the wording of the statute, has discretion on paying a judgment. John Paul Stevens: But if the state attorney general should construe the statute as requiring the reimbursement in this situation, at least that opinion would have some weight, I suppose? Robert L. Presson: It would have some weight, although state officers are not specifically required to follow opinions issued by our office. Sandra Day O'Connor: Who provides the legal defense in the lawsuit? Is that provided by your office? Robert L. Presson: Yes, and it was in this instance as well. Warren E. Burger: Generally is that the case? Is that a matter of state law or just practice and policy? Robert L. Presson: Well, I suppose it arose primarily to begin with as a matter of practice and policy. Now specifically under the tort defense fund we have a role in investigating and making recommendations even as far as settlement. Byron R. White: Is that the attorney general's office or is it in the county? Is it your office? Robert L. Presson: It's the state attorney general's office. I think both as a matter of common understanding and practice as well as what our role is delineated in the tort defense fund statute, we undertake generally to represent state defendants, although in certain instances perhaps involving conflicts of interest we have not done that. But as a general rule we do. I'd like to reserve the remainder of my time if I may. Warren E. Burger: Very well. Mr. Lockenvitz. Bradley H. Lockenvitz: Mr. Chief Justice and may it please the Court: Recklessness implies malice. A reckless or callous disregard of constitutional rights under color of law resulting in physical injury justifies an award of punitive damages under Section 1983. Warren E. Burger: Are you asserting that, representing that to be a universal doctrine of law? Bradley H. Lockenvitz: I'm asserting that, yes, Your Honor. And I believe the availability of punitive damages in cases such as this is necessary to preserve the policy of deterrence inherent in the Civil Rights Act. The standard is the same as that found in the common law in many jurisdictions in this country at the time this Act was initiated. Coincidentally enough, it is the same standard required to find liability for actual damages against prison officials in this case. I have found four states where the common law of punitive damages included some element of recklessness or gross negligence at the time the Act enacted, the states of Wisconsin, California, Alabama, Maine, and there may be others that I did not find. But a consistent theme throughout these cases is one where, in talking of malice or reckless disregard, the courts referred to it in the disjunctive. For example, in the state of California. William J. Brennan, Jr.: Excuse me. Are you conceding, then, that at least to the extent of recklessness and callous disregard, there is that much has to be proved before there may be an award of punitive damages in a 1983 suit? Bradley H. Lockenvitz: Yes, Your Honor. William J. Brennan, Jr.: I see. Bradley H. Lockenvitz: But I am saying that the standard that was given to the jury-- William J. Brennan, Jr.: I mean, that falls short, does it, of actual intent, malicious intent? Bradley H. Lockenvitz: --As far as-- William J. Brennan, Jr.: How does callous disregard... how different is that from malicious intent? Bradley H. Lockenvitz: --I believe malicious intent can be implied by a callous disregard of known threats to health and safety, as this Court said in Estelle. The common law I was referring to refers to a malicious motive or a reckless disregard in several cases. I might add that the Milwaukee case of this United States Supreme Court, cited by the Petitioner, of 1975, shortly after the enactment of the Civil Rights Act, referred to reckless indifference, and again it was in the disjunctive. It said if the act was done willfully or was the result of that reckless indifference to the rights of others, punitive damages would be awarded. William J. Brennan, Jr.: Well, I'm not quite clear how much of an issue we have, in light of your concession. Bradley H. Lockenvitz: It is my position, Your Honor, that-- William J. Brennan, Jr.: Well, how do you differ from the state? Bradley H. Lockenvitz: --I believe we have shown the reckless-- William J. Brennan, Jr.: What do you think is the standard that you have to satisfy in order to get a punitive damage award? Bradley H. Lockenvitz: --Egregious conduct, reckless disregard. William J. Brennan, Jr.: Well, now I'm asking you, how does that differ from what the state's insisted? Bradley H. Lockenvitz: I believe the state is asking for us to bear an impossible burden. I think they're asking us to look into the head of William Henry Smith to determine what he really wanted to do in this case. Byron R. White: You're not objecting to the judgment below. Bradley H. Lockenvitz: That's right. Byron R. White: You think the standard was quite proper. It's the state that thinks that there should be that standard that they insist on as different from the one applied below. Bradley H. Lockenvitz: Yes. Byron R. White: They're the one that wants a different standard from what was applied below. Bradley H. Lockenvitz: That's correct, Your Honor. And I'm asking this Court not to initiate a new standard, but to maintain what I argue is the standard that has been here all along. Byron R. White: Whether it's the same, whether the standard the state suggests is the same or different, you don't really care. You just say that the one that you've got is satisfactory, and that it's authorized by 1983. Bradley H. Lockenvitz: I say it is authorized, and perhaps I'm not making myself clear. I believe the state is asking for us to show something along the lines of, William Henry Smith said, Danny Wade, I'm going to put you in the cell so you can be... have your constitutional rights violated. We cannot prove that. We did not prove that. But I don't see that as any different from an example that you brought up with drunken driving. We put people in jail in Missouri all the time for reckless disregard when driving while drunk, or manslaughter. And I believe that's the same standard that you apply in 1983 cases for punitive damages. Warren E. Burger: How many people would you say are confined in Missouri under the reckless disregard, that is not an affirmative intent? Bradley H. Lockenvitz: For manslaughter? Warren E. Burger: For anything. Bradley H. Lockenvitz: It would be difficult for me to say, Your Honor, but the number is substantial. Thurgood Marshall: How many judgments have you with additional damages on 1983 actions in Missouri? Bradley H. Lockenvitz: To my knowledge, this is the only one. Your Honors, I think when looking at the standard to determine whether or not there's malice there, whether or not there's aggravating circumstances... when I speak of malice, I'm speaking of the implied malice that comes with the careless disregard... you also have to look at the risk. William H. Rehnquist: Mr. Lockenvitz, you may not have had occasion to look at our case of Sandstrom versus Montana, where... which is of course in a quite different field. There's no reason why you should have. But I think that case goes into the problems of telling a factfinder that he can find intent simply on the basis of the presumption that everybody intended the normal consequences of their acts and that sort of thing. You used the term "implied malice" just now. Could you elaborate on how you would define that? Bradley H. Lockenvitz: Well, Your Honor, I just go back to the common law cases where this Court and others have said that you must show malice or reckless disregard, and there are instances where reckless disregard leads the court to believe that there was malice and to find malice. William H. Rehnquist: Do you think the common law cases from this Court or elsewhere generally require a higher standard for recovery of punitive damages than they do for the recovery for the tort itself? Bradley H. Lockenvitz: Yes, Your Honor. But this is an extraordinary case in that the standard that we had to meet to reach actual damages at all, because of the qualified immunity, because of the prison officials being involved, is the same standard as that required in the common law for punitive damages. William H. Rehnquist: But if you have to reach a higher standard to impose liability at all and the common law cases suggest that there should be a difference in standards for actual and punitive damages, wouldn't it make sense here to say that you should have had to prove a still higher standard to get punitive? Bradley H. Lockenvitz: I see the gist of your statement, Your Honor. However, again I refer back. You're talking about some element of punishment and here we're really talking about deterrence. If you go back to our drunken driving cases and our manslaughter cases, we put people in jail for those same standards with the hope that they'll be deterred, and the deterrence... and punished. The deterrence and punishment policies are in both cases. And we don't have to prove any higher standard to find people guilty of drunken driving or manslaughter in Missouri. Once we meet that burden we've got it, and I believe the same thing would apply here in this extraordinary case. You see, Your Honor, I don't see this as opening the floodgates for prison litigation. First of all, because as I mentioned the facts are extraordinary in the case in that we were able to meet the burden at all. But at the same time, punitive damages under 1983 are limited to individuals. There's no deep pocket there. We could not have gotten punitive damages against a municipality under City of Newport. There is a good question about whether or not the tort defense fund will cover punitive damages in this case. Harry A. Blackmun: Could I ask you a question, counsel, due to the remark you just dropped. I thought I read Chief Judge Lay's opinion for the majority below as saying that the standard for punitive damages equates with that for ordinary tort liability. Did you read it that way? Bradley H. Lockenvitz: Yes, for ordinary tort liability in cases of this nature, is the way I read that. Harry A. Blackmun: And I thought in one of your responses to Justice Rehnquist you rather conceded that maybe there is a higher standard here. Bradley H. Lockenvitz: There's a higher standard for finding the basic liability to get compensatory damages. We have that higher standard because of the prison official being involved. We can't find... a court cannot find a prison official liable on mere negligence. We had to reach that higher standard, the standard that is there for punitive damages in this case, in order to find actual damages at all. Harry A. Blackmun: So you are in agreement with Chief Judge Lay's remark? Bradley H. Lockenvitz: Yes, insofar as it applies to cases of this nature, where you have to find this higher standard. William H. Rehnquist: Well, if you're correct, counsel, then the imposition of a higher standard in some torts, such as the one you are involved in here, some constitutional tort, offers somewhat minimal protection to the Defendants, because if that higher standard is once met you can recover, a plaintiff can recover, not only actual damages but punitive damages against them, whereas if a lower standard is required presumably under your reasoning actual damages could be recovered, but not punitive damages. Bradley H. Lockenvitz: Your Honor, I believe the protection given to public officials and in this case prison officials with the qualified immunity is adequate with the standard for actual damages. They are protected. They are allowed to make these discretionary decisions because of the qualified immunity. Harry A. Blackmun: Of course, I wonder why you make this concession. Even without making the concession, you still would take the position that you should prevail here? Bradley H. Lockenvitz: Yes, Your Honor, And again, perhaps I'm not being... perhaps my use of the word "malice" is not appropriate here. I'm talking about implied malice from the reckless conduct. I'm not talking about looking into the man's head to determine what he intended to do. Thurgood Marshall: Well, your concession-- --I have trouble with... you say that you have to have a higher proof for actual damages in a case where a corrections officer is entitled to qualified immunity, right? Bradley H. Lockenvitz: Yes. Thurgood Marshall: And that automatically gets you punitive damages. You lost me right there. Bradley H. Lockenvitz: Okay. I say that, Mr. Justice Marshall, because by coincidence or whatever the standard we must reach in order to obtain actual damages happens to be the same standard for punitive damages under the common law. Thurgood Marshall: Do you know any other instance under the sun? Bradley H. Lockenvitz: No, Your Honor, I do not. John Paul Stevens: But isn't it true, you only make that concession in Eighth Amendment cases? It's a deliberate indifference standard that you say is the same as the reckless disregard standard. Bradley H. Lockenvitz: Yes, Your Honor, exactly. John Paul Stevens: You wouldn't necessarily make the same claim if it was an improperly executed search warrant or something like that? Bradley H. Lockenvitz: No, Your Honor. And again, I think when you look at this to determine whether or not punitive damages should be awarded, you must look at the... you can't eliminate the possibility of... you can't eliminate the theory of risk. You must look at the risk involved. For example, in Carey the risk of real damages to these students in Carey was not very great. They were going to leave school for a while, but there was no risk, for example, of physical injury or rape, the things that we have here. In this case you have a situation where a guard with plenty of objective facts behind him made a decision with deliberate indifference, callous disregard, of what was known to him about these individuals. It was similar or could be compared to putting two hungry lions in a small cage with a lamb. Now, if the man turns his head on that we can't really say that he intended for the lions to eat the lamb, but by merely turning his head with these facts in front of him you must presume that he deliberately did not care what happened. And that is what we have here. I think what we're also talking about is what one of the colleagues of the Defendant below referred to as a common sense standard. He testified that it was just common sense that you don't place special treatment unit inmates in a 65 square foot cell with inmates from the general population. Just common sense. We're not talking about a higher plane. We're not asking for this guard to review all of the constitutional law on the spot. We're asking him not to be careless. We're asking him not to show a deliberate disregard for the health and safety of this particulate inmate. Your Honors, to overturn the decision below I believe this Court would in effect be taking away the admonition function of punitive damages. And I want to draw the Court's attention to a hypothetical. If the facts of this case show that Elijah Smith, with the same guard on duty in the same dormitory, with somewhat similar circumstances, was beaten to death only a few months before this happened, if on the night that Danny Wade was raped d beaten he would have been killed, his actual damages under Missouri law or the actual damages for his family would have been very small, because they would have been limited to what he could have provided for them in supports. And it's unrealistic to suppose an 18 year old in prison with a felony record is going to provide much in the way of support for his family outside the prison. But without actual damages there would be no real deterrence for these guards. In other words, there comes a time... or I mean, substantial actual damages. There comes a time when actual damages can be so low, the possibility of them can be so low, that a guard or someone else in that position may decide to take the risk. In other words, it would be cheaper for him to pay the actual damages and violate the constitutional rights than it would be for him to apply some new policy or make a more careful decision, or in this case place Danny Wade in a cell downstairs with only one other inmate who is from the special treatment unit rather than in a cell with two inmates who had come from the general population. Lewis F. Powell, Jr.: Don't you think as a practical matter all of these officials expect the state to pay any judgment against them anyway? Bradley H. Lockenvitz: I suppose these individuals expect that. However, I agree with Mr. Presson that there's a real question as to the punitive damage aspect of this case. Lewis F. Powell, Jr.: You wouldn't expect to collect punitive damages in any substantial amount from a prison guard, would you really? Bradley H. Lockenvitz: No, Your Honor. And you know, it's interesting in this case, the fact that the tort defense fund was available was brought out in trial in a remark made by the defense counsel. And yet, this jury, knowing that there's some type of insurance back there, realized the role of punitive damages and these good Missouri folks decided that $5,000 was adequate to punish or deter this guard from similar conduct in the future. Lewis F. Powell, Jr.: Would the court have permitted you to bring that fact out? Bradley H. Lockenvitz: The court would have. I did not... well, they would have permitted me to do that after the remark by the defense counsel. Lewis F. Powell, Jr.: Prior to that, would the court-- Bradley H. Lockenvitz: Prior to that, no, the court would not have. Your Honor... Your Honors, ordinarily actual damages would be enough. But with the hypothetical that I've just presented to you and the deterrence policy that we're talking about here, I believe in 1983 cases the door should be left open. When you take a look at the legislative history... and again, as this Court has pointed out, there is no indication that... damages were not discussed in the debates. But I saw time and time again in the debates before the Act of 1871 and its predecessor in 1866 the problem of state officials turning their backs on the rights of innocent citizens. And it is my belief that this concern, along with the common law that existed at the time, must be read in such a way that they intended for punitive damages to be available. And again, the damages were not actually discussed, at least where I could find it, in the legislative debates, but the policy of deterrence certainly was, and the policy of deterrence in civil rights actions, of course, has been mentioned by this Court time and time again. Your Honors, again I want to perhaps clarify something and distinguish this case from Carey. In Carey the Plaintiff had to show that he was deprived of a right under color of law. He had to show negligence, that they knew or should have known that his right was being violated. And then to reach punitive damages, because he had no actuals, he had to show some sort of actual malice, which has been defined as ill will, spite or reckless disregard. Here, instead of a three-step process, because of the particular qualified immunity for prison officials we had to show a deprivation of a constitutional right. But because of the qualified immunity we had to show that this deprivation occurred because of a callous indifference, an egregious failure, if you will, a deliberate indifference to known threats to health and safety, recklessness. In other words, we met that punitive damage standard as soon as we met the standard for actual damages. And then we showed that he knew or should have known that these rights were being violated. Your Honors, we're talking about balancing the interests here in this particular case and cases like it. In this interest... in this case, what can be more important to this prison official than the health and safety of Danny Wade, as well as the overall atmosphere in this prison cell. We're not... in this prison dormitory. We're not talking about balancing the interests of free speech, as in the Gertz case. We're not talking about reaching into the deep pockets of innocent taxpayers by going against the state or municipality. We're not talking about going into the deep pockets of the labor union-- William H. Rehnquist: --Well, where do you suppose this tort defense fund comes from? The taxpayers. Bradley H. Lockenvitz: --The tort defense fund is here, Mr. Justice, because the state chose to impose that burden on itself. Warren E. Burger: Where did the state get the money? Bradley H. Lockenvitz: Practically speaking, Mr. Chief Justice, that fund is a nullity. It is not there. The legislature must appropriate the money each time a judgment is paid. Warren E. Burger: Well, that means what Justice Rehnquist and I were both striving to-- Bradley H. Lockenvitz: From the taxpayers. Warren E. Burger: --The taxpayers pay it. Bradley H. Lockenvitz: But again, I must point out that the state imposed this burden on itself. It didn't have to. It's there because of a statute, not because they are required by the constitutional law to pay these judgments. Byron R. White: Who was the trial judge? Bradley H. Lockenvitz: The Honorable Scott Wright. Your Honors, the policy of deterrence must be maintained with punitive damages, must be maintained with punitive damages in cases such as this, because to deprive Danny Wade and others like him of punitive damages leaves the door open for prison guards and other prison officials to take the easy way out, and if the actual damages happen to be low... obviously, they can't be zero, but if they happen to be low... they may choose to take the easy way out and pay rather than face the possibility of deterrence. Warren E. Burger: The instruction of the trial judge on this subject, were they instructions given at your request? Bradley H. Lockenvitz: In part, Your Honor. The trial judge surprised both counsel in applying the Missouri-approved instructions in this case. Warren E. Burger: Missouri state court? Bradley H. Lockenvitz: The Missouri state court. Byron R. White: For punitive damages? Bradley H. Lockenvitz: Both for the verdict direct... well, he modified them, obviously. Byron R. White: Is that instruction 5 in Missouri Forms? Bradley H. Lockenvitz: Instruction 5 is... not verbatim, obviously, but he turned to the MAI, the Missouri Approved Instructions, for his guide and modified it according to federal law, rather than using the federal law form books that counsel had been accustomed to using. I might add, though, that he did not, as you can see in instruction 5 on page 13 of the appendix, he did not leave the definitions of such things as gross negligence and egregious failure to the imagination of the jury. He defined them, I believe, with the appropriate federal standard. The same way with instruction number 7, which appears on page 14, which is the punitive damage instruction, where he refers to a callous or reckless disregard or indifference to the rights and safety of others. Thank you. Warren E. Burger: Do you have anything further, Mr. Presson? Robert L. Presson: Just a couple of comments, sir. Warren E. Burger: You have three minutes remaining. Robert L. Presson: Thank you. The Respondent has gotten a little bit into the facts of the case, and I don't want to dwell on them too much, but I do feel that a brief response on my part would be appropriate. First of all, the Respondent's characterization of placing a lamb in with two lions, his reference to what one guard called a common sense rule about not putting a protective custody inmate in with those from general population, are not the sole... are not the complete picture in this case. The Plaintiff was in the administrative segregation unit because of conduct violations in the protective custody unit to begin with. In other words, once he had requested to get into protective custody he was then charged himself with harassing and threatening inmates in that unit, and that was the disciplinary charge that got him into administrative segregation. As far as the death of the other inmate a few months previous, on which this same guard did happen to be on duty at the time, again there is nothing in the record to indicate that was a result of any personal fault of that guard. It took place at a time when there were only two inmates in the cell. It took place during shower period, when there were two guards but both of them happened to be supervising the inmates during their shower period because the inmates were obviously out of the cell at that time. In other words, there was no indication that this had any rational connection between the later events involving the Plaintiff here. It seems to me, your Honor, that the plaintiff's then argument that low damages would encourage someone to take a chance is really unsupportable. In Robertson versus Wegmann this Court dealt with a Louisiana statute on survivorship under which certain actions might abate, and the argument was made, well, this would undermine deterrence. In other words, they could say, well, this might abate, I'll take the chance. This Court rejected that as an unlikely possibility and I think it's equally unlikely that a state official would sit around and say, well, I consider damages unlikely here in any great amount, I'll take a chance. That is just too iffy a proposition and I don't believe that this Court can indulge the assumption that that would happen. It appears to me in the final analysis that what we want to ensure is a most appropriate imposition of punitive damages, and I think a higher standard is conducive with that. And I think it is analogous to what this Court said in Santosky versus Kramer, that a higher standard of proof ensures or places the fact-finder on notice that this is an important decision and helps to limit the possibility of an inappropriate decision. For that reason I believe an actual malice standard is necessary. Warren E. Burger: Thank you, gentlemen. The case is submitted. Speaker: The Honorable Court is now adjourned until Monday next at 10 a.m..

William H. Rehnquist: We'll hear argument now in Number 94-1785, Commissioner of Internal Revenue v. Robert F. Lundy. Mr. Jones. Kent L. Jones: Mr. Chief Justice and may it please the Court-- The tax court is an Article I court of limited jurisdiction. This case concerns the limitations on the jurisdiction of the tax court to award refunds. When a taxpayer commences a suit in tax court to review an asserted deficiency, the court may then also determine whether an overpayment was made. Section 6512(b)(3) of the Internal Revenue Code, however, provides three detailed jurisdictional limits on the amount of the refund that the court may award. Under section 6512(b)(3)(A), the court may award amounts paid after the notice of deficiency is issued. Under 6512(b)(3)(C), the court may award amounts for which a claim for refund was made before the notice of deficiency was issued, but when, as in this case, there was neither subsequent payment or a prior refund claim, section 6512(b)(3)(B), which this case concerns, limit the jurisdiction of the tax court to award amounts that would be refundable under 6511(b)(2) if on the date the notice of deficiency was issued a claim for refund had been filed. In turn, 6511(b)(2) allows a refund of amounts paid within 3 years prior to the claim for refund only if the claim for refund was made within 3 years from the time of the taxpayer's return, but when-- Sandra Day O'Connor: Mr. Jones, in subsection (B) that you're referring to it says that no credit or refund will be allowed unless it was paid within the period which would be applicable under 6511(b)(2)(C), or if on the date of the mailing of the notice of deficiency a claim had been filed, whether or not filed. Now, that language is just incomprehensible. What does that parenthetical mean? Does it mean if it isn't filed we can deem it to have been filed? Kent L. Jones: --That's... what it means is that, whether or not a claim for refund had actually been filed, the court is to apply these statutes as if a claim for refund was filed on that date. That was... no one has doubted, I think, that that is the meaning of that provision. Sandra Day O'Connor: And is that what should be done in this case? Kent L. Jones: Yes. In this case, because the taxpayer had failed to file a return before the date of the notice of deficiency, 6512(b)(3)(B) operates, and what it operates to do is to require the court to apply 6511(b)(2) as if a claim for refund was filed on the date the notice of deficiency was issued. David H. Souter: Why does it say, whether or not, since subsection (C) covers the case in which it had been filed before that? Kent L. Jones: Yes, it... subsection (C) applies if a claim had been filed before that date. Subsection (B) says you are to assume a claim is filed on that date, whether or not one had been filed. David H. Souter: Why didn't it just say that it wasn't, or if it wasn't? Kent L. Jones: I think one of the reasons it might put it that way is because if you read the rest of subsection (B) it goes on to say, a claim based upon whatever grounds the tax court determined an overpayment was made. Now, what that refers to is a basic distinction between district court and tax court jurisdiction. David H. Souter: Oh, I see. Kent L. Jones: The district court only has jurisdiction to consider a judicial claim that is based upon precisely the administrative claim. If there's any material variance between the district court claim and the administrative claim, the district court claim has no jurisdiction, but in the tax court there is no requirement of an administrative claim. The court may award a refund based upon any ground for which it determines an overpayment. David H. Souter: Well, in that respect the taxpayer is better off to be in the tax court. Kent L. Jones: It... the taxpayer has a broader refund argument in the tax courts. He has whatever argument he can come up with, but the price that is paid is that the amount of refund that can be awarded is subject to the very specific and detailed jurisdiction provisions-- John Paul Stevens: Mr. Jones, can I ask you a question about (B), the same... the one that is at issue here? It says, if a refund claim had been filed. Now, if on that date... I guess it was September 26, 1990... before receiving a notice of deficiency the taxpayer had decided that he ought to file a refund claim because he realized that they had overwithheld, what document would he have then filed? Would it not have been a return? Kent L. Jones: --He could have filed a return, but-- John Paul Stevens: What else? Is there any-- Kent L. Jones: --Yes. John Paul Stevens: --other form that the IRS uses that would have enabled him to claim a refund without filing a return? Kent L. Jones: I think the right answer to your question is that courts have routinely held that refund claims can be submitted informally, that they don't have to be on a return-- John Paul Stevens: But is there any Internal Revenue form that provides for seeking a refund without filing a return? Kent L. Jones: --There are... there isn't an Internal Revenue form that, of course, is exactly what you've described, a return that includes a claim for refund. There's also-- John Paul Stevens: But is there an Internal Revenue form that seeks a refund without filing a return? I don't think there is, but if there is, would you identify it for me? Kent L. Jones: --It would be the amended return form. John Paul Stevens: The amended return form, which is a kind of return. Kent L. Jones: It is an amended return. John Paul Stevens: But there's no way, is there, to file a claim for refund at that date without also filing a return? Kent L. Jones: No, sir, I'm sorry, I must disagree. The courts have routinely held that you can file a refund claim informally. John Paul Stevens: But there's no form. There's no regular IRS form that the average taxpayer who has overwithheld can go to the office and say, would you give me the refund form. What would he get? Kent L. Jones: There's no IRS form, but there is... but you don't have to use an IRS form to make a refund claim, according to the courts. John Paul Stevens: How is the average taxpayer to know that? If he went to the IRS, what would they tell him to do? If he went to a lawyer, what would he tell him to do? Kent L. Jones: If they went to the IRS, the IRS would probably ask him to file a return-- John Paul Stevens: Correct. Kent L. Jones: --which this taxpayer hasn't done. Ruth Bader Ginsburg: And that raises a question, Mr. Jones. As I understand it, this provision, as you read it, favors the taxpayer when the taxpayer has filed a return. We get into this problem with the taxpayer who hasn't filed a return, and at some point in the exchanges between the IRS and the Service, the taxpayer was told, file your return soon, and if you don't, then we'll prepare a substitute return for you. Can you explain how that would have played out if the Service, instead of sending the notice of deficiency, had first filed a substituted return for the taxpayer? Kent L. Jones: A substituted return is... it's lingo, if you'll pardon the expression. It is not a return. A substituted return is simply an internal document that the IRS prepares to set forth their calculations based upon what they think the taxpayer's liability is. The return that 6511 refers to is specifically the return filed by the taxpayer. Ruth Bader Ginsburg: So that substituted return would not have counted-- Kent L. Jones: No. It would-- Ruth Bader Ginsburg: --to serve as the return. Kent L. Jones: --It cannot be the taxpayer's return. Anthony M. Kennedy: Does the taxpayer get a copy of the substituted return? Kent L. Jones: It isn't sent to the taxpayer. What's sent to the taxpayer is the notice of deficiency, which includes the calculations. Whether the taxpayer can see the underlying basis for it, I don't have any doubt that they can see it, but I don't believe that it's routinely sent. Anthony M. Kennedy: But they don't attach the substituted return to the notice of deficiency. They have the same calculation, but not the form. Kent L. Jones: I can't say definitively. I'm sorry, Justice Kennedy, I don't know, but what I am confident about is that this thing that we call a substituted return is not a return of the taxpayer, it is simply... for example, a taxpayer, we might have a W-2. It might show some information about income and withholdings. That might have been all that we know. For example, that might have been all that we know in this case, and based upon that limited knowledge, we "prepare a substituted return", but what we're really doing is filling in the blanks as best we know. The definition of a return in the code I think is best described in 6611(h), which talks about a return in processable form. A return... it must be a document filed by the taxpayer that purports to be a return, and that contains all of the information from which the taxpayer's entire liability-- John Paul Stevens: But does the code define the term, claim, as used in this section? Kent L. Jones: --A claim for refund has been defined judicially. John Paul Stevens: I... that wasn't my question. Kent L. Jones: I'm not familiar with a definition of a claim for refund in the-- John Paul Stevens: Well then, why should we look at the definition of return? We're asking... the question is, what does the word claim mean in this section-- Kent L. Jones: --Well, Justice-- John Paul Stevens: --and you've just told me the only way you can file a claim is by filing a return-- Kent L. Jones: --No, sir, I didn't. John Paul Stevens: --but yet the claim doesn't include the term, return. Kent L. Jones: I did not say that. The courts have held quite clearly that you can file a claim informally, and you don't have to use a return, and let me be specific, a claim for refund-- John Paul Stevens: You can file a claim informally without first having filed a return? Kent L. Jones: --Absolutely. A claim for refund-- John Paul Stevens: What case gives us an example of that? Kent L. Jones: --In our brief, in our reply brief we cite the Salzman Treatise, which elaborates a lot of cases that deal with this subject. A claim is-- Ruth Bader Ginsburg: Do I understand correctly that it wouldn't have made any difference as long as he didn't file a return? Kent L. Jones: --Yes. Ruth Bader Ginsburg: As you read the statute, he must have filed a return first. He could have filed a formal, informal, all the claims in the world, and on your reading of the statute it would not have made any difference. What he had to file, what he didn't file before the notice of a deficiency was not a claim, but a return. Kent L. Jones: That's absolutely correct. The statute makes the distinction between taxpayers who have been delinquent in filing returns and taxpayers who have not, and by its very words it provides an abbreviated period of recovery for taxpayers who have not filed a return before the notice of deficiency was issued. Sandra Day O'Connor: Mr. Jones, other than this, rather unusual circumstances of this case, is there any other time that the 2-year look back period would apply under this subsection? Kent L. Jones: Well, it applies whenever-- Sandra Day O'Connor: Does it apply only to circumstances of this case, and in no other instance? Kent L. Jones: --It applies routinely when the taxpayer has not filed a return before the notice of deficiency is issued. That would be the... you only get the 3-year look back if you have filed the return before the claim for refund arises. Sandra Day O'Connor: Now, has the IRS been totally consistent in its position and interpretation of this statute? It seems rather inconsistent with the position the Government took in the Miller case in the Ninth Circuit, and with the Revenue Ruling 76-511. Kent L. Jones: There's a long answer to that question which I'd like to give, and I'd like to try to give it in a logical order. The first part of the answer to the question is, has the Government been consistent about tax court cases, and the answer to that is plainly yes. Since 1957, in Revenue Ruling 57-354, which is quoted at page 48 of the petition appendix, the Commissioner has stated that the status of a claim for refund must be determined as of the time it is filed and that if, as the time it is filed, no return has then been filed, you only get a 2-year look back period. The tax court has consistently reached the same conclusion under its own jurisdiction since the early 1970's. The suggestion that our position in this case is newly minted simply ignores this historical record, and moreover, factually, the suggestion of respondent that we would routinely pay refund claims in this context is demonstrably incorrect, as the tax court found, because 6512(a) of the Internal Revenue Code says that if a notice of deficiency is issued, and the taxpayer files a claim in tax court, then no refund or credit shall be allowed except as the tax court determines, so in tax court cases the Commissioner has no administrative authority to award a refund. We are deprived of it by statute. Now, the question that you're really, I think, focusing on is, have we been the same about district court cases and tax court cases, and I think... there's a short answer to that and a long explanation. The short answer is, it is not perfectly clear whether in each and every situation the refund periods are supposed to be the same in district court and tax court cases, and there is no basis for assuming that Congress intended them to always be the same, and I'd like to explain the latter part first. There's no reason to think Congress necessarily intended the same periods always to apply in district court and tax court. Ruth Bader Ginsburg: Mr. Jones, may I derail you just for a moment to go back to where you were in the tax court? One might wonder whether the Commissioner was always consistent in the tax court because part of the history of this case that initially this taxpayer, that the answer in the... to the petition in the tax court didn't raise a time bar, and in fact the taxpayer got a letter that said, you're going to get a refund check, and then it was over a year after the initial answer that the amendment was made to assert the time bar. Kent L. Jones: I believe that you've accurately described the facts, Justice Ginsburg, but I also believe that the Commissioner raising the defense in this case is something that he has... she, in this case, has consistently done since the issue has been presented. The fact that there may have been a delay in it's assertion in this case-- Ruth Bader Ginsburg: It's not just a delay. There just wasn't... there was an answer. The time bar was obvious from the start, and yet over a year went by without this being asserted. Kent L. Jones: --It is... I think it's fair to say that it's relatively common for defenses to be amended, for answers to be amended, and I would hope the Court wouldn't draw any inference from that in this case. There's really no reason to. I mean, as I emphasized just a point ago, we don't have authority to make a refund in a tax court case unless the tax court has determined an overpayment, so we have to... when we think a refund might be appropriate, we have to submit an agreed order that falls within the jurisdiction of the tax court. It may have been... and I'm speculating here. It may have been that in preparing a draft of some kind of agreed order to submit in this case, that it then occurred to counsel, oh, wait a minute, this case isn't within the tax court's jurisdiction. It may be that that's the mechanics that led to this being asserted at the time that it was. Now-- John Paul Stevens: Mr. Jones, can I just follow up, because I didn't think I got a complete answer to my question. I asked if there were cases involving claims for refunds such as the notations... and you referred on pages 14 and 15 of your reply brief... in which those informal claims had been made without there having previously been filed any return at all. Kent L. Jones: --And I-- John Paul Stevens: And which of those do you think fits that category? Kent L. Jones: --I'm sorry, Justice Stevens, I cannot tell you, as I stand here, which of those cases might involve those facts, but I would like-- John Paul Stevens: Do you think any of them involve that? Kent L. Jones: --I would think they might well, and I would be speculating, but let me point out, because you seem... this is something important to you, and I want to emphasize it. Congress wrote this statute. Congress wrote it anticipating that there would be situations where claims for refund were filed at a time when no return had been filed. John Paul Stevens: How do you know that? Kent L. Jones: I know that because section 6511 (a) provides a limited look back for situations where the claim for refund is filed at a time that no return had been filed. John Paul Stevens: Correct. Kent L. Jones: So Congress anticipated that claims for refund could, in fact, be filed where no return had been filed, and provided for a 2-year look back period and, in fact, that's this case. John Paul Stevens: That would be that no return had previously been filed. Kent L. Jones: Absolutely. John Paul Stevens: But that doesn't mean that there could be cases in which the claim for refund could ever be filed without simultaneously filing a return. Kent L. Jones: If the claim for refund and the return were filed simultaneously-- John Paul Stevens: Which they normally would be. Kent L. Jones: --Which they often are. John Paul Stevens: Normally. Kent L. Jones: Most... ordinarily may be, but certainly or not necessarily required-- John Paul Stevens: Except that you can't give me an example in adjudicated cases of one having been filed without the other. That is, of the claim for refund having been filed without the return, which seems to me makes it very reasonable to assume that when Congress used the term, claim, they used it to apply to the document on which the claim is normally made. Kent L. Jones: --Justice Stevens, if we were to assume that a claim for refund and a return was the same thing, then very little-- John Paul Stevens: Oh, I don't suggest that at all. I'm just suggesting that you cannot file a claim for refund without also having either previously or simultaneously filed a return. Kent L. Jones: --Well, Justice-- John Paul Stevens: And you haven't given me a contrary example. Kent L. Jones: --Well, this is such a case. Congress imputed the claim for refund, but setting that aside, Justice Stevens, frankly you would have to write out almost all of 6511(a) to support that view, because first of all the second clause of the first sentence of 6511(a) said that, and if the claim for refund is filed at a time when no return has been filed, then you get a 2-year look back period. So to suggest... I mean, you can't suggest that Congress didn't think that a claim for refund and a return were independent documents that could be filed in different orders. Congress clearly contemplated that, and clearly also provided an abbreviated period, an abbreviated look back period for the taxpayer who fails to file the return before he files the refund claim. Antonin Scalia: Mr. Jones, can I ask something about the Government's theory of why, when the return is later filed, after the deficiency has been assessed, you do not thereupon get the benefit of the 3-year period? I think I may disagree with you as to the reason, though perhaps not as to the result. Kent L. Jones: Well, the reason that we see is that section 6512(b)(3) provides a detailed set of answers to these questions. It says that you can base a refund on a refund claim filed before-- William H. Rehnquist: Where are you reading from, Mr. Jones? Kent L. Jones: --6512(b)(3)(C) says that you can award a refund based upon a prior refund claim filed before a notice of deficiency. 6512(b)(3)(B) says you can award a refund based upon a claim assumed to arise on the date of the notice of deficiency. There is no basis for engrafting onto this statute an additional refund jurisdiction for subsequent refund claims, which is what the court of appeals theories would require. You'd have to be adding a clause to the statute, and you'd be adding a clause to the statute that would contradict the clauses that would already exist. Now, this Court has said on several occasions that the jurisdictional limitations on refunds are limited waivers of sovereign immunity that must be strictly applied and strictly adhered to by the judiciary. In this case, the court of appeals acknowledged that it was not applying the statute as Congress wrote it. The court said, we will not use the imputed refund claim under 6512(b)(3)(B) to decide whether a 2-year or 3-year look back period applies, but that is precisely what Congress told them to do. Stephen G. Breyer: You just before were saying... you were asked the question, has the Government always been consistent. Kent L. Jones: Yes, Your Honor. Stephen G. Breyer: And then you said, it's been consistent in the tax court, and then you said, well, in the court of claims for the refunds, it seems to be a little different, and I was wondering if you'd said everything you wanted to say there, or if you wanted to say a little more-- Kent L. Jones: I'd like to try to briefly describe that, because time is limited. There is no reason to think they have to be the same. The jurisdiction of the tax court and the district court have always been different. The district court had a common law jurisdiction to award refunds against the collector, had a statutory authority, ultimately had a statutory authority to award claims against the United States long before the tax court came into existence, and when the tax court came into existence, it was only allowed as an administrative wing in the Treasury Department to review the notice of deficiency. It couldn't even talk about overpayments until 1928, and it wasn't until 1988, just 7 years ago, that the tax court was allowed to enter an order requiring that a refund be made. Moreover, as I've already described, the jurisdiction of the courts is different, even as we stand here, because of the variance of the claim doctrine, and so there's no reason to assume, ab initio, that in establishing or in merging these disparate jurisdictions, that... and in using the terminology that is peculiar to tax court litigation in doing so, that you're always going to reach the same result. Stephen G. Breyer: --It's still a little odd, though, isn't it, in the-- Kent L. Jones: At most, it's odd-- Stephen G. Breyer: --I take it... it's April 15, for the last year, right. This is right. Then you have... if you file your return within 2 years, you're home free. Kent L. Jones: --Yes. Stephen G. Breyer: No problem. If you wait till after 3 years, you've had it. Kent L. Jones: In either court. Stephen G. Breyer: In either court. Now we're talking about that key middle year between 2 years and 3, and if you go into the tax court, on your reading of it, it's a race. If they get the deficiency notice out before you file your return, you only get the 2-year look back, so you've had it. If you're in the court of claims... is that right? Kent L. Jones: No, I don't think so. It's not a race. I don't want you to ever think it's a race. Stephen G. Breyer: I don't mean to be pejorative. Kent L. Jones: Let me explain why... because they don't have to go to tax court. Stephen G. Breyer: No, no, wait. If... I didn't mean... I mucked it up by saying this pejoratively. I'm just trying to find out what happens. In the tax court, during that key year... nothing's happened, 2 years have gone by. Now, during the next year, if the notice of deficiency comes out, forget it. If, before the notice of deficiency comes out, the taxpayer wakes up and files his return, then you get back the 3 years. That's correct, isn't it. But in the court of claims, if the notice of deficiency comes out, the taxpayer can wake up then and file the return, and then he'll get the 3-year look back. Kent L. Jones: I don't think there's an answer to the last part of your point, and that's what I'd like to address. In the Ninth Circuit decision in the Miller case, the Court concluded that these refund periods were identical in district court and tax court cases. Speaker: But they're wrong, aren't they? Kent L. Jones: I think-- Stephen G. Breyer: I mean, that's because they did that, they thought you could file a return forever, but they forget if you file a return 50 years later, you're only going to get 3-year look back. Kent L. Jones: --I don't think that they are obviously wrong. I think that they make a textual point, and I need to argue both sides of this, and I want to explain that at the beginning, because my point is, the essential point is, it doesn't matter. It isn't critical. What's critical in this case is, what is the tax court's jurisdiction. Ruth Bader Ginsburg: But what does matter is your approach to reading this statute, and I understand what you say about the tax court. You've got to apply this literally. Kent L. Jones: That's right. Ruth Bader Ginsburg: And yet Judge Wiggins didn't apply the limitation there applicable literally. He seemed to be looking for some... one of the reasons that he gave for a construction that as far as I can see varied from what you said in your revenue ruling, one of the reasons that he gave is there ought to be symmetry between the tax court and the district court claims court. Kent L. Jones: Yes, and our first point is that there is no reason to assume there's symmetry when both the history and the text of the provisions is not symmetrical... are not symmetrical. David H. Souter: You've given us an example of symmetry, of a symmetry in the taxpayer's favor in the tax court-- Kent L. Jones: That's correct. David H. Souter: --and answered my question. May I ask you another technical question which probably doesn't matter either, but if the taxpayer had let 2 years go but had filed no return, more than 2 years had passed since the last tax payment, then made an administrative claim and followed that by going into the district court, he would be in exactly the same position he's in here, wouldn't he? He'd be out. He couldn't... he couldn't file his claim in the district court, and then say, oh, wait a minute, I forgot to file a return-- Kent L. Jones: Oh, I see. David H. Souter: --and then file a return and get the 3-year period. On your reading he'd be just as stuck as he is here. Kent L. Jones: The subsequent return would not affect the prior refund claim. It wouldn't validate the timing of the prior refund claim. Speaker: Because it's-- Kent L. Jones: Because the statute says that. David H. Souter: --Because the reading of the, within 3 years from-- Kent L. Jones: That's correct. Speaker: --implies before. Kent L. Jones: That's what the Richards court said-- David H. Souter: So he'd be in the same boat, in my hypo, in the district court that he's in here. Kent L. Jones: --That is correct. But let me-- Anthony M. Kennedy: Could he... in Justice Souter's hypothetical could he dismiss the district court action and start all over again? Kent L. Jones: --Hypothetically, and then we'd have the problem that Miller addresses, and the only thing I want to say about Miller in the brief time that's remaining is that the Service has ruled to the contrary about district court cases that even a late return might allow a 3-year look back period in the district court, but I do want to point out that that ruling doesn't explain its analysis. We don't know, in reading it, whether it's based upon a textual analysis or upon administrative grace. We don't have administrative grace in tax court cases. That's another difference between tax court and district court cases. Ruth Bader Ginsburg: The Revenue Ruling, you say you don't know whether that's administrative grace, that's why... but the Revenue Ruling for that particular taxpayer, because of the 3-year look back period, came out that the taxpayer didn't get the refund. Kent L. Jones: On the facts of that ruling. Ruth Bader Ginsburg: And wouldn't that have been the same thing in Miller, that... wouldn't the tax-- Kent L. Jones: No, I don't... I'm sorry. I believe in Miller the return was filed more than 2 but less than 3 years after its due date, whereas in the ruling it involved a return filed more than 3 years after its due date. These are very... the intricacies of the intertwining of these provisions are complicated. I just want to end by explaining once again that on this Court's decisions, what we should look at is the jurisdictional provisions of the tax court. They should not be amended, they should be enforced, and-- John Paul Stevens: --Mr. Jones, you do have... even in tax court cases, you would have administrative discretion, the week before sending a notice of deficiency, to send a letter to the taxpayer saying we're about to file a notice of deficiency. You'll get 3 years if you promptly file a return. That you could do, couldn't you? Kent L. Jones: --What we did do was, 90 days before we issued the notice of deficiency-- Speaker: My question is, you could do that, couldn't you? Kent L. Jones: --we told him that we were about to. John Paul Stevens: And if he'd been smart enough, he then could have filed a return right away and been protected. Kent L. Jones: The tax court opinions on this are of long standing, Justice Stevens. I would like to reserve-- John Paul Stevens: But I just want to be sure, I am correct, he could have protected himself then by immediately filing a return, couldn't he? Kent L. Jones: --Hypothetically, he could have protected himself. John Paul Stevens: And you would have had administrative discretion to tell him that that option was open to him, would you not? Kent L. Jones: Justice Stevens, I have to answer that question yes, because obviously we would have discretion to tell every taxpayer everything we know, if we had the time. I would like to reserve the balance of my time for rebuttal. William H. Rehnquist: Very well, Mr. Jones. Mr. Schwartz, we'll hear from you. Glenn P. Schwartz: Mr. Chief Justice, and may it please the Court-- Justice Stevens identified the core issue in the interpretation of 6512(b)(3)(B). The key question is, what is meant by the word claim in that statute? Under the interpretation of the IRS, the claim is a defective claim, because if Congress intended, and it must have, that that claim be valid, then it would have to be on a Federal income tax return for the following reasons. A return is required to be filed under 6011, but 6011 does not define what a return is, nor do the regulations, but the case law has-- William H. Rehnquist: Well, the Solicitor General said that the code does define a return. You're saying that the code doesn't define a return. Glenn P. Schwartz: --The code does not define a return, Your Honor. David H. Souter: But the one thing the code clearly does is distinguish, at least in 6511, between claim and return, so presumably it... there is no reason, I guess, to assume that it was... that it was assuming a possible identity. Glenn P. Schwartz: Your Honor, a claim and a return can be different documents. For example, for taxes other than an income tax, Form 843 is used, the claim for refund form. Prior 1976, a Form 843 claim could be used in lieu of an amended return, but whereas here an original return has not been filed, a valid claim for refund, and Congress must have meant that that claim be valid, must be on a Federal income tax return for these reasons. David H. Souter: Before you give me the reasons, would you respond to this (b)(3)(C) deals specifically with the case in which a return has been filed. Doesn't that suggest that claim in (b)(3)(B) was referring to a claim in which a return had not been filed? Glenn P. Schwartz: I don't believe so, Your Honor. I... the proper... the question is, what does Congress mean by claim in (b)(3)(B)? That's the question, and it has to mean a valid claim. William H. Rehnquist: Well, certainly you'd read (C), which comes right along next to it and also contains the word claim, in deciding what claim means in (B). They're not totally independent sections. Glenn P. Schwartz: That's correct, Your Honor, but the claim in (B) still has to be a valid claim, and I would like to explain what a valid claim has to be. Antonin Scalia: Before you do that, you've left me in some confusion. I was astounded to hear you say that Justice Stevens had put his finger on the crux of the question. The point he raised was not raised in your brief, as far as I know. Glenn P. Schwartz: Oh, yes, Your Honor, I devoted-- Antonin Scalia: He claimed... well, he is questioning whether the claim might not constitute a return. Your brief doesn't say that the claim constituted the filing of the return. To the contrary, it says the later filing of the return constitutes the claim. That's quite different, it seems to me. Well, which is it? Glenn P. Schwartz: --Your Honor-- Antonin Scalia: I mean, do you think the claim constitutes the return, or the later return constitutes the claim? Glenn P. Schwartz: --Your Honor, we have alternative arguments. The-- [Laughter] Our first argument is that the statute doesn't provide for a deemed claim at all, it provides a reference date for application of the limitation period. Antonin Scalia: Yes, I understand that. That has nothing to do-- Glenn P. Schwartz: All right... okay. Antonin Scalia: --with what's the claim and what's the return. But I thought your brief-- Glenn P. Schwartz: Your Honor-- Antonin Scalia: --as far as the word claim and return, I thought your position was the later return was the claim. Glenn P. Schwartz: --We've devoted four or five or six pages of our brief to the question of, if it is assumed that there is a deemed claim, if that's what the language means, and we don't concede that, then the deemed claim must have been a valid claim, and the only valid claim that could be filed under these circumstances-- Antonin Scalia: Is the later return. Glenn P. Schwartz: --is a return. Antonin Scalia: Yes, and that's not what Justice Stevens was questioning about at all. Either you misunderstood him, or-- Glenn P. Schwartz: Perhaps I misunderstood him, but the core issue with respect to this statute is what is meant by the word claim. Claim has to mean return. Claim, again, is not defined in the statute or in the regs, but the regs under 6011 do say that you should make returns in accordance with the applicable Treasury regulations. Now, a claim... a return has been defined under case law as meaning any document which contains sufficient information to allow the IRS to determine tax liability. Now, the IRS in its construction of this section has ignored... in every brief it submitted to the tax court, the Fourth Circuit and this Court, the last phrase of the statute treats it as surplusage, stating the grounds upon which the tax court finds that there's an overpayment. In fact, the IRS went so far as to excise it from its quotation of the statute on page 5 of its reply brief, but this language is important, because if the claim referred to in 6512(b)(3)(B) states the grounds upon which the tax court finds that there is an overpayment, that would constitute the same information that would be on a return, because the-- Antonin Scalia: --The Government's position is that (b)(3)(B) doesn't refer to any real claim. It's a hypothetical claim. Glenn P. Schwartz: --Well, it's... even if it's a hypothetical claim, it has to be something, and it has to be a valid claim. A valid claim has to be a return. The statutory language requires that it state the grounds upon which the tax court finds there's a overpayment. In this very case, the IRS employed the taxpayer's return to determine that there was, in fact, an overpayment. Sandra Day O'Connor: Mr. Schwartz, under your interpretation, when would section 6512(b)(3)(B) ever act as a bar to claiming a refund? Glenn P. Schwartz: Your Honor, if the notice of deficiency was mailed more than 3 years from the due date of the return, that would be at a time when the taxpayer could not have-- Sandra Day O'Connor: But you don't look to that subsection to give me that answer. What... when would that subsection serve as a bar under your view? Glenn P. Schwartz: --I don't understand the question, Your Honor. The-- Sandra Day O'Connor: It just seemed to me that under your interpretation, (b)(3)(B) just would never apply to give effect to your-- --It's never a bar, but it's a tolling provision, isn't that your answer? Glenn P. Schwartz: --Your Honor, our view of 6512(b)(3)(B) is that it's basically... if the statute of limitations was open to the taxpayer on the date that the notice was mailed, then it's open to him in the tax court, that he... the tax court can grant him a refund, so if the notice was mailed after 3 years from the due date, then under no circumstances could the taxpayer recover. Sandra Day O'Connor: Well, I think everybody agrees with that. So the statute of limitations wouldn't have run, on your theory, but the bar to recovery of money would have. Glenn P. Schwartz: That's correct. The statute of limitations on filing, in theory, as Justice Breyer suggested, that goes on forever. Treasury Reg 6402-3(a)(5) says that a return showing an overpayment constitutes a claim for refund, and it's deemed filed on the same day, so a return filed several years after the due date would be a timely claim, but the limitation on amount would limit the taxpayer to the amount paid in the 3 years preceding the filing of the return, so there's no danger of stale claims, and there's no danger of a stale claim here. The second reason that this-- Ruth Bader Ginsburg: On that... in that same vein, then can you tell us under what circumstances the 2-year look back would apply when the Commissioner... when the Commissioner sends a notice of deficiency? The Commissioner sends a notice of deficiency. When would the 2-year look back ever come into play? Glenn P. Schwartz: --The 2-year look back would come into play the same way it would come into play if we were not dealing with the tax court, and that is where the 2 years from the date the tax is paid provides for a longer period of limitation than 3 years from the date the return was filed, and that could come up in connection with an audit. For example, if a taxpayer, 1990 tax year, his due date is April 15, 1991. That's the date that the taxes are paid, and pursuant to an audit 2 years later he makes an additional payment. He has 2 years to claim a refund for the taxes paid pursuant to the audit, but only 3 years to claim the taxes that were paid on the due date. Ruth Bader Ginsburg: So your view of the 2-year look back is, it can only work to the taxpayers advantage-- Glenn P. Schwartz: That is correct. Ruth Bader Ginsburg: --when it turns out to be longer than the 3 years from the return filing. Glenn P. Schwartz: That is correct. In the case of a return required tax, the only 2-year rule that applies is the first 2-year rule. Antonin Scalia: How do you square your notion that claim means a valid claim, that is, a claim accompanying a return, with the language of 6511(a), which says a claim for credit or refund of an overpayment in respect to which the taxpayer is required to file a return shall be filed within 3 years, blah, blah, blah, and then at the end of that sentence, or if no return was filed by the taxpayer within 2 years from the time the tax was paid. That clearly contemplates a claim being made without a return having been filed. Glenn P. Schwartz: Your Honor, there are several reasons why that second 2-year rule does not apply to a taxpayer who's required to file a return. Antonin Scalia: I'm not... I don't want to know when the 2-year rule... I want to know how it squares with your notion that when the statute says claim, it means a valid claim, that is, a claim accompanied by a tax return. That's your principle. Glenn P. Schwartz: My principle is that a valid claim for refund where no original return has been filed must be on a tax return. Antonin Scalia: Must be on a tax return. Well, that doesn't square with the language of 6511(a). It clearly contemplates a claim where no return has been filed. Glenn P. Schwartz: That's for nonreturn required taxes. That second 2-year rule is for nonreturn required taxes, such as transferee liability. Antonin Scalia: It doesn't read that way. Claim for credit of any tax in respect of which tax, the taxpayer is required to file a return. Where are you reading from? 6511(a). Glenn P. Schwartz: Your Honor, may I explain? The... there are two or three reasons why that second 2-year rule where no return has been filed does not apply to Mr. Lundy. The first is, if... the first 3-year rule, 3 years from the date the return is filed, or 2 years from the date the tax is paid, whichever is later, covers all possible situations, because if you assume that an original claim could be filed that was not a return, it would be covered by that first 2-year rule, making the second 2-year rule surplusage. The second reason is, if the... if it was possible to file a claim for refund that... where no original return has been filed, it would be limited by the first 2-year rule, because the first 2-year rule would provide a longer period of time than the 3-year rule, so that the second 2-year rule would be surplusage. The second reason is, if, as the IRS contends, that the first sentence of 6511(a) applies to return required taxes, including the second 2-year rule, or if no return was required, and the second sentence of 6511(a) applies to stamps, then there's no rule to recover nonreturn required taxes, so that second 2-year rule, which is surplusage for a return required tax, must apply to nonreturn required tax. Third, as originally enacted in 1954, the statute provided for a limitation period of 3 years from the due date. It was an absolute minimum 3-year period, so that that second 2-year rule, or if no... 2 years from the date the tax was paid if no return was filed, could not possibly apply to a return required tax. In fact, the tax court in this very case stated that under the '54 code as originally enacted, the taxpayer would have been entitled to a refund even under the deemed claim theory because it was filed within 3 years from the due date. Now, Congress in 1958 extended that period of time. The amendment in 1958 was to improve the taxpayer's position to provide that he would be able... because the Commissioner could assess a deficiency within 3 years from the date the return was filed, but the taxpayer was limited to 3 years from the date the return was due, so as the tax court acknowledged that he could have recovered under the language as originally enacted, the tax court judge acknowledged that the purpose of the '58 amendment was to extend the time for filing, and yet what the tax court said was, somehow Congress did not perhaps analyze all the effects of this language. And Your Honor, I submit that this legislative history is convincing evidence that a taxpayer is entitled to a minimum of 3 years. Stephen G. Breyer: I don't really see how you avoid the language. I mean, it's... I've been struggling with it. It seems just like somebody says... to your son you say, I'll give you all the ice cream you could have eaten at the drug store if you'd been there. I mean, if, it sort of means... I can't get it work any other way. It's working like a that. It's working like, I'll tell you how much I'll give you. I'll give you the amount you could have eaten if you'd been there. And then if you twist it around the way you want to twist it, the thing sort of hangs in the air. I can't figure out how to get there. Glenn P. Schwartz: You're talking about the-- Stephen G. Breyer: Of (B), the key language here, 6512(b)(3)(B). Glenn P. Schwartz: --Oh-- Stephen G. Breyer: It looks like... the question, it seemed to me is whether that comma after (d) means that you should read the if like a which, whereas they want to read it like a that, and I don't see how you can avoid it, to tell you the truth. I put that so you can explain to me how you could. One way is, you get the word claim to mean refund, you see. I mean, you get... not refund, return. You get the word claim to include a return. That would do it, except you run into problems elsewhere across the page, where they quite clearly distinguish it. Glenn P. Schwartz: --Well-- Stephen G. Breyer: But I can't think of any other way to do it. Glenn P. Schwartz: --Your Honor, I d like to get back to the claim. I would like to address-- Stephen G. Breyer: Yes. Yes, if claim includes return, then you've got it. Glenn P. Schwartz: --Right. There's two-- Stephen G. Breyer: But the difficulty with that is that only the section before they talk about claims and they talk about returns, and there's a whole phrase there that doesn't make too much sense unless they mean to leave open the possibility that you could have a claim that didn't have a return. Glenn P. Schwartz: --Well-- Stephen G. Breyer: But then is there any other... are you... is there any other reading of this language that gets you where you want? Glenn P. Schwartz: --Well, the legislative history. Stephen G. Breyer: I understand... I like legislative history, too, but nonetheless you do have to deal with the language that they enacted, and that's why I'm looking to see is there any other reading of that language, other than a claim including the word return, that will get you where you want to go. Glenn P. Schwartz: Well, Your Honor, the IRS has contended that the language is plain throughout the litigation, but it is not plain. Our interpretation of the statute is that... the statute doesn't say, as if a claim was... had been filed, or assuming that. Stephen G. Breyer: It doesn't. It says, if. Glenn P. Schwartz: If. Speaker: That's right. I-- Glenn P. Schwartz: And if is a conditional. Stephen G. Breyer: --Yes. Well, you can use it, though, and that's why I use the ice cream example, I'll give you all you could have eaten if you'd been there. That's all... that doesn't mean, if you had been there, then something else would have happened. It's a limitation. It means how much you're going to get. So we use the word if sometimes like that. Glenn P. Schwartz: In this context, Your Honor... the problem has arisen because Congress took the short cut of incorporating the general statute of limitations under 6512, and the triggering points, the triggering points for the limitation periods in 6511 are couched in terms of claim for refund, because an administrative claim for refund is a prerequisite to the granting of an administrative refund or the jurisdiction of the district court. So it... the statute's not self executing when it's incorporated by reference into 6512, and so there had to be a reference to the word claim to trigger the limitation periods in 6511, because the taxpayer would not have filed a claim for refund in the tax court because that's not a prerequisite, and this has always been interpreted as a reference date for application of the limitation periods in the tax court, so that if the statute was open to the taxpayer on that date, if he could have filed a timely claim for refund on the date that the notice was mailed, he's entitled to a refund in the tax court. That's the understanding of Congress. On page 22 of our brief, we quote from a 60... 1963 Senate report, and it says, since the 1954 enactment, moreover, the Internal Revenue Service has in practice interpreted the law as permitting the refund of amounts where valid claims have been timely filed, as well as where those claims could have been filed on the date of the mailing of the notice of deficiency. William H. Rehnquist: What did the 1962 Senate report accompany? Glenn P. Schwartz: It accompanied the addition of a provision that allowed... the provision accompanied (b)(3)(C), which allows the tax court to grant a refund where the claims have been filed prior to the mailing of the notice of deficiency. William H. Rehnquist: That's not one of the sections involved here. Glenn P. Schwartz: It's not, but this clearly indicates the existence of a longstanding administrative practice and Senate approval-- William H. Rehnquist: Well, it indicates the approval by a Senate committee of something that has been done over a period of years, or that the Senate committee thinks has been done over a period of years. I mean, are we supposed to take that as a substitute for reading the statutes and the rulings? Glenn P. Schwartz: --No, Your Honor, but I think a fair reading of the statute is that there is no deemed claim, that it's a reference date so that the taxpayer is... if he could have filed a valid claim for refund on the date the notice was mailed, he's entitled to a refund. William H. Rehnquist: That's a plausible argument. I don't think much is added to it by quoting a 1962 Senate report. Glenn P. Schwartz: Well, Your Honor, there's other evidence of the longstanding administrative practice of the Service to grant refunds under these circumstances. For one, I would... the explosion of cases that occurred since 1991 and 1992, this Court in Fribourg Navigation stated that where you have an explosion in litigation where before there was none, it is strong evidence of the longstanding administrative practice. You have the facts of this very case, where once the taxpayer dropped his petition in the mail box, under the IRS theory of this case, he was barred by the statute of limitations, and yet the IRS answered the complaint, they dealt with him for a year, they made him submit 160-some pages of documents-- Anthony M. Kennedy: Well, I don't think he was barred by the statute of limitations. Assuming that he made a tremendous amount of money and filed a return 10 years down the line, I assume that... and that return had been filed promptly, I assume that within the period of that look back he could have gotten the earlier refund that he was seeking, couldn't he, or am I wrong about that? Glenn P. Schwartz: --No, Your Honor. Once he petitions the tax court under 6512(a) he's precluded from thereafter going to the district court, so he was out of luck, and once he filed that petition in the tax court, he had no way of ever getting his refund back. Anthony M. Kennedy: Well, I guess I'm assuming that he promptly dismisses and then later on makes money, pays the money, and then asks for some of it back. Glenn P. Schwartz: But the tax court acquires deficiency and refund jurisdiction the moment that the taxpayer files his petition in response to the notice. Once that occurs, he's thereafter barred from going to the district court and seeking a refund, so he sort of got caught in the crack. Antonin Scalia: He can't dismiss? Glenn P. Schwartz: No. Once the tax court acquires jurisdiction, that's it. He's out of luck. Antonin Scalia: He cannot dismiss-- --I understand this-- --He cannot dismiss the suit that he brought? Glenn P. Schwartz: He's not bringing the suit. He's responding to the notice of deficiency. Antonin Scalia: I understand, but he's the one that takes the initiative in getting it before the tax court. Glenn P. Schwartz: Your Honor, my understanding is that once he files a petition, that's final. The tax court acquires jurisdiction, and thereafter the tax court is precluded... excuse me, the taxpayer is precluded from ever going to another court. David H. Souter: Well, what is your... do you have a textual basis for that understanding that he cannot dismiss? Glenn P. Schwartz: 6512(a), Your Honor. David H. Souter: Does it say he can't dismiss? Glenn P. Schwartz: I don't have the statute in front of me-- Speaker: Okay. Glenn P. Schwartz: --but it precludes him from thereafter filing a suit in the district court. David H. Souter: So long as he stays in the tax court, but if he gets out of the tax court-- Glenn P. Schwartz: He can't get out of the tax court, Your Honor. David H. Souter: --He cannot dismiss. Glenn P. Schwartz: That's correct. Ruth Bader Ginsburg: But in answer to the question about, couldn't you revive a stale claim by paying a little bit years down the road, don't you... aren't you still bound by the look back period that you can't go more than 3 years... you can't get back money that you paid more than 3 years ago? Glenn P. Schwartz: You mean assuming that he somehow would be able to file a refund suit? Ruth Bader Ginsburg: In other words, doesn't the look... the very purpose of the look back provision to stop that kind of thing where you, many years down the road, pay a small piece, a small overpayment, claim that back, and then... and use that as leverage to go 7 years back to get the rest of the overpayment? Isn't that the very purpose of having these look back provisions? Glenn P. Schwartz: Yes, but the look back rule is the teeth of the limitation provisions, and prevents stale claims. But Your Honor, this case is very much like Williams, because the very purpose of the tax court is to assist taxpayers like Mr. Lundy to allow him to contest an asserted deficiency without first... without prepaying, and yet, once he filed his petition in the tax court, he was in a position where he had no realistic alternative, and no remedy, because his only choice once that notice of deficiency is mailed to him is either to prepay the tax and file a suit in the district court, or go to the tax court, where he forfeits his refund, so that remedy-- Antonin Scalia: Maybe that's one of the penalties for not filing a tax return when you're supposed to. I mean, there are all sorts of penalties. Isn't it conceivable that this is one of them? Glenn P. Schwartz: --Your Honor, there are penalties. There's a penalty for late filing, 6651, but confiscation of your refund is not one of those penalties. Antonin Scalia: Well, that remains to be seen. I mean-- [Laughter] But the mere notion that this is unthinkable doesn't strike me as self evident. I mean, we begin with a taxpayer who didn't file a tax return when he should have. Glenn P. Schwartz: That's correct, Your Honor, but if we assume that Mr. Lundy had a neighbor in the same position who overpaid his '87 income taxes, the return was due on April 15, '88, and he also was late filing, but he never got a notice of deficiency, he filed on the same date, on December 28, more than 2 but less than 3 years, he'd get his refund. Mr. Lundy didn't. Or-- David H. Souter: Which is an inducement to the taxpayer to get moving. I mean, you can't say it's irrational. Glenn P. Schwartz: --But Your Honor-- Ruth Bader Ginsburg: No taxpayer would be in this bind if they filed the tax return with 2 years, is that right? Glenn P. Schwartz: --That's correct, but Congress has afforded taxpayers a 3-year grace period, and this is taken away from them by the mailing of a notice of deficiency. Why-- Ruth Bader Ginsburg: That's the question. Has Congress done that, or has Congress said, if you wait beyond 2 years, you're in jeopardy of getting that notice of deficiency first. Glenn P. Schwartz: --But Congress has not said that. That's nowhere to be found in the statute. William H. Rehnquist: That's what we're arguing about in this case, I take it. Glenn P. Schwartz: Well, Your Honor-- Stephen G. Breyer: I still don't see how you read the statute... I mean, you know, I... it makes sense for Congress to say, everybody gets 3 years. It also makes sense to say, if you don't file your return, you get 2 years. Maybe they ought to say, 2 years if you don't file your return, 3 years if you do. Maybe it's a little different, whether it's... but what does it say? I can't work out... I mean, I can't figure out any way to get it-- Glenn P. Schwartz: --Our interpretation is that the taxpayer is in the same position in the tax court as he would be in the district court, the claims court, or filing an administrative claim for refund. Antonin Scalia: --How would Congress have said what the Government says it said more clearly than what is here? You apparently... I gather from an earlier comment you apparently think it would have been, the problem is that (3)(B), what was it, 6512(b)(3)(B) does not say, as if on the date of mailing, but just if on the date of the mailing, but it couldn't possibly say as if. Within the period which would be applicable, as if on the date of the mailing? No. I mean, the way to say what the Government says it says is precisely what is written here, within the period that would be applicable under section 6511 if on the date, not as if. I wouldn't put an as in there. They would be totally incoherent. Glenn P. Schwartz: But that's what the Government does in all of its briefs. They say, as if-- Speaker: No, no-- Glenn P. Schwartz: --assuming that. Antonin Scalia: --No, you say that it requires as if, in order to get their interpretation, but it seems to me their interpretation is precisely what's written there... within the period which would be applicable if the notice of deficiency had been filed. I don't know how you get an as if there. It doesn't make sense at all. Glenn P. Schwartz: The language is not clear, Your Honor. My time is limited. I-- Speaker: It seems perfectly clear to me. Glenn P. Schwartz: --My time is limited. I'd like to take the opportunity to persuade you that the claim should be considered a return. There are two other reasons that claim in this context must be considered to be return. Treasury Reg 6502-2(b) requires that a claim contain the detailed statement of the grounds upon which the claim is based. That, again, is the same information that if on a document submitted to the IRS under case law and under a '74 revenue ruling would constitute a return and finally, and most important, Regulation 6402-3(a)(1) requires, whereas here no original return has been filed, that the taxpayer must file his claim on a return. So the IRS is asking you to ignore its own regulations and treat the claim referred to in 6512(b)(3)(B) as a defective claim, and I think that's an impermissible construction. I think you have to attribute to Congress an intent that that claim is a valid claim. John Paul Stevens: Whereas I guess you take the position that in 6511(a) the term claim can include valid claims and invalid claims that have to be corrected to become valid, and the 2-year rule would apply to the invalid claim. Glenn P. Schwartz: Well, Your Honor-- John Paul Stevens: And then if... you know, one filed without a return. Glenn P. Schwartz: --Well, I think the key thing here is that a claim filed on a return, that a return showing an overpayment, is the equivalent of a claim under the Treasury regs... own regulations. Thank you. William H. Rehnquist: Thank you, Mr. Schwartz. Mr. Jones, you have 2 minutes remaining. Kent L. Jones: Thank you. The principal contention that Respondent raises here was not addressed by the court of appeals and has not been accepted by any court. That contention is that a claim for refund and a return are synonymous concepts. Congress plainly didn't intend that. They use the terms quite distinctly and separately. They make the periods of limitation and the refund periods depend upon which came first and how long apart they were, so to reach the conclusion that respondent seeks would literally make nonsense out of 6511(a), 6511(b), and 6512(b). No court has supported that assertion. The suggestion that somehow this problem would be cured if the respondent could have filed a timely claim is simply off the point. A taxpayer can always file a claim for refund at any time, but that doesn't alter the limitations that apply when the refund claim is filed. For example, in this case, if they had filed... if respondent had filed a refund claim on the date the notice of deficiency was issued, he would have been limited to the 2-year refund period, because as of that date he had filed no return. Respondent simply ignores what's the principal dilemma that he faces. That is, that he was delinquent in filing his return, and Congress made that delinquency relevant in determining the refund jurisdiction of the tax court. Antonin Scalia: --The question, Mr. Jones... you can answer yes or no... can a taxpayer dismiss a petition filed with the tax court? Kent L. Jones: If I could answer yes or no-- Speaker: Once a tax court has him-- Kent L. Jones: --Justice Scalia, I certainly would. I have to admit, I don't know. I have looked at 6512(a). It doesn't say. It simply says that when you have this tax court case, no other court can decide whether there's a refund, and neither can the Commissioner. It doesn't say whether that case could be dismissed and a subsequent case filed. It's possible the Commissioner has taken a position on that, so I'm reluctant to make an argument on it not knowing what position we may have taken. Thank you very much. William H. Rehnquist: Thank you, Mr. Jones. The case is submitted.

John G. Roberts, Jr.: We will hear argument next in Case 12-5196, Law v. Alfred H. Siegel, Chapter 7 Trustee. Mr. Hellman. Matthew S. Hellman: Thank you, Mr. Chief Justice, and may it please the Court: Congress expressly prohibited what the bankruptcy court did here. Under Section 522(k) of the Code, Congress specified that a debtor's exempt property, his homestead, his pension, his wedding ring, is not liable for the payment of, quote, "any administrative expense". Antonin Scalia: Excuse me. Will you crank up your -- your thing? I can't you hear well enough. That's good. Matthew S. Hellman: Congress, in Section 522(k), specified specifically that a debtor's exempt property is not liable for any administrative expense. The bankruptcy court was not free to override that express and specific prohibition in the name of equity, a point that has been clear for at least 80 years, since this Court's case in Ginsberg & Sons, and said Congress made the judgment that debtors and their dependents, even dishonest debtors, ought not be deprived of their exempt property such that they would emerge from bankruptcy as wards of the State. Instead, Congress authorized other serious punishments for debtor misconduct. But arguments for punishment that the Code forbids must be addressed to Congress and not the supposed equitable discretion of the bankruptcy court. Now, if I could, I'd like to-- Samuel A. Alito, Jr.: I am somewhat taken aback by your constant reference -- your repeated references to "wards of the State". What we're talking about is whether your client gets $75,000. Do you think everybody who doesn't have $75,000 is a ward of the State? Matthew S. Hellman: --This is his last $75,000, Your Honor. Samuel A. Alito, Jr.: Yes. Well, do you -- do you know what the -- the median net worth of a household in the United States is? Matthew S. Hellman: It's -- it's about -- I'm not sure what the median net worth-- Samuel A. Alito, Jr.: It's less than $70,000. So the question here is not whether he's going to be a ward of the State. The question is whether he's going to be above the median in his assets. Matthew S. Hellman: --Well, I think what's going on here, Your Honor, is actually a federalism principle. Congress recognized, in 522, that States, in effect, would be the ones who would have to take care of those who do not have a home, do not have tools of trade, do not have a pension. And so what 522 does is it says that the State authorizes you an exemption, and you claim it, and it becomes exempt, then you get to keep it through the bankruptcy law, because otherwise, in effect, it is the State that ends up being required to house or support or -- or help those and their dependents who are deprived of, essentially, their last dollar, which is what is exactly the case here. Here every penny -- all of Mr. Law's creditors in this case have been paid off. The trustee has already received approximately $280,000. We're just talking about literally, literally, the last $75,000, and all of it, that would be going to the trustee. Ruth Bader Ginsburg: I don't follow that, because I thought that $75,000 would go to satisfy part of the claim, that there would still be the legal fees unpaid. Matthew S. Hellman: All his creditors -- the debts that existed beforehand-- Ruth Bader Ginsburg: Yes. But now the -- the trustee, who is obliged to try to find what assets he or she can, spends a huge amount of money in order to -- to prove that this claim of a second mortgage was false. And -- and there should be -- so what happens then, on your theory, that all that money was spent and the result is that the second mortgage is canceled; the creditors are satisfied? Nobody pays the legal expenses. Is that-- Matthew S. Hellman: --Well, the first 280,000 have been satisfied, and the trustee was not obligated by any law to pursue the administration of the estate in a way that would be cost-ineffective. But our point here is that Congress had made the determination -- we could have -- there could be a policy discussion, of course, about whether exempt property ought to be allowed to go to the administrative costs of the estate or to prepetition creditors in situations in which the -- a court finds litigation misconduct. But that is not the judgment Congress made. Samuel A. Alito, Jr.: What was -- what was the trustee supposed to do? Suppose the trustee has a meter running on -- on his desk, and he's hot in pursuit of this phantom Lily Lin of China, but we get -- we get to the point where he's down to the -- he says, well, if I do any more work, the only way I'm going to get paid is out of the $75,000. I better stop, because otherwise, I'm going to be working free. What should he do? Matthew S. Hellman: Well, the trustee, in that situation -- and the trustee handbook, pages 4-3, 4-4 of the trustee handbook that the United States Office of Trustee puts out, notes that administrators on the estate ought to assess whether or not pursuing a claim will be an effective -- will yield an effective return for the estate. And, again, Congress, made the judgment that, when a debtor lies to a court, he loses his discharge. And that has an effect on the debtor's obligations going forward. It means that the debtor's prepetition debts, to the extent they're unsatisfied, stay with him for the rest of his life. But Congress did not say the denial of discharge allows the trustee to recover anything more than it otherwise would. So, again, I think the question is one of policy, and one the policy where Congress has spoken clearly. The text of-- Sonia Sotomayor: Can we talk about that policy? Matthew S. Hellman: --Yes, Your Honor. Sonia Sotomayor: I mean, it would seem to me that a court's sanctioning power is among one of the most respected and longstanding powers. So putting aside the government's reliance on the statutory scheme, I don't see it. But how about the inherent power? Matthew S. Hellman: Well, inherent power-- Sonia Sotomayor: Meaning, you want to read a preclusion of the inherent power out of -- not from an express term, but implicitly. Matthew S. Hellman: --No, Your Honor. Just -- I should note, of course, inherent power was never argued below, nor presented in the bio. But I think the more important response to your question is the following: We are not talking in this case about the inherent power to sanction a litigant. This -- we don't dispute that Rule 11 exists and other punishments exist under the Code. This case is about a court saying the property from which that -- that sanction can be satisfied, out of what property can that sanction be paid or forced to be paid. And there-- Sonia Sotomayor: But you are talking about the inherent power. You're saying a court, in its-- Matthew S. Hellman: --Not-- Sonia Sotomayor: --inherent power, can't use that property. That's what you're saying. Matthew S. Hellman: --My point is that there is no longstanding tradition of the same vein of a court being able to sanction, to be able to say, you owe attorneys' fees for this bad conduct. That's not what this case is about. This case is about the property out of which that sanction can be paid. And Congress spoke specifically. And when Congress speaks specifically, this Court recognized in NASCO, in Nova Scotia, and in a long line of cases beforehand, in the Article III context no less, in the Article III court, this Court recognized that where Congress speaks expressly, a court does not have the inherent power or otherwise to reach the contrary result. And I think the Ginsberg case is quite on point here because the facts of that case were striking even today. There, in Ginsberg, the debtor was a corporation, and an officer of that corporation was seeking to flee the jurisdiction with corporate cash, funds of the corporation. A creditor went to the bankruptcy court and said, we need to detain this person, arrest him. He's fleeing with property of the estate. This Court said the arrest writ was not valid. Why? Because the Bankruptcy Code specified the situations in which arrest was authorized. Conditions A, B, and C needed to be satisfied. This was situation D, and the creditor adverted to the general equitable powers of the bankruptcy court, which are codified then, as now, in their provision. And this Court said, no, the specific provision that's at stake here, at issue here, means that the equitable provision, the general equity cannot overcome that. And in fact, Ginsberg was a less clear case than this one. The arrest provision in Ginsberg was framed affirmatively. You may arrest if situations A, B and C are here. And the Court said you can't add situation D to that. This is a case not by implication, but an express prohibition: Exempt property is not liable for the payment of any administrative expense, save in two situations. It wasn't even as if Congress-- Anthony M. Kennedy: Your position is that the trustee can take no action to make the estate whole in the event of, say, Justice Alito's type of hypothetical, the bank -- the estate bankruptcy trustee spends $125,000 in legal fees to bring property back to the estate that had been concealed by wrongful conduct of the debtor and the debtor still gets $75,000 of that? There is nothing the bankruptcy trustee can do to make that bankruptcy estate whole? Matthew S. Hellman: --Of course, as was the case here, there was a denial of discharge, the classic and serious penalty for debtors who engage in misconduct before a bankruptcy court. What that means in almost every case is that there will be debts owed to pre-petition creditors that remain unpaid. It's essentially the bankruptcy death penalty in the sense that it makes the debtor liable for the rest of his days until those debts are paid off. That's a very serious punishment. Anthony M. Kennedy: What about the house? The house was still exempt because if they levy on the house, you go back to bankruptcy and it's still exempt. So there's nothing you can do to make the trustee -- the estate whole. Matthew S. Hellman: Two points, Your Honor. One, the question to where you want to draw the line about deterring debtor misconduct and leaving debtors without, literally, their last dollar coming out of bankruptcy is an important question, but a policy question, and one where Congress has spoken with an expressed prohibition. Now, there are other sanctions, not -- none of which were levied here or sought to be levied here, Rule 11 and the like, that might serve to provide an additional source of funds, but not from exempt property, because Congress has walled that off. If one looks-- Stephen G. Breyer: The same thing is true of certain retirement funds. Matthew S. Hellman: --Yes, Your Honor. Stephen G. Breyer: So if, in fact, the person has $4 million in this special retirement fund account and he's behaved in the most extraordinarily dishonest way, the trustee has no power to impose a sanction on those funds, even if he'll earn a big income, he's lied nonstop, etcetera. Matthew S. Hellman: Congress has amended Section 522 already eight times since 1978, about once every 4-1/2 years, if my math is correct, to fine-tune the extent to which debtors can claim exemptions. As the Court is aware, in 2005 for example, the -- Congress limited the extent to which a debtor could claim an exemption in his homestead, I suppose precisely for analogous reasoning to what Your Honor suggests. It's still nonetheless perfectly clear from Section 522(k) that Congress has not created or allowed some sort of free-floating equitable discretion for bankruptcy courts to reach a different result in cases. And again I would like to point the Court to Section 522(c) as well, which is the companion provision to the administrative expenses provision. As the Court, of course, is aware, debtors often have debts arising from all sorts of improper conduct, willful and malicious injury, criminal restitution awards, fraud, embezzlement, there is a whole list of these things in Section 523 and the Code makes these debts non-dischargeable, inherent per se non-dischargeable, meaning that when you go through bankruptcy you are not going to be able to escape paying these debts once the bankruptcy is over. However, in Section 522(c)(1) of the code Congress picked out just two, just two of those categories of debts, alimony and certain tax liability, of these non-dischargeable debts that could be satisfied from exempt property. The debtor who has a wrongful death judgment, the debtor who has a fraud judgment, the debtor who has a criminal restitution award, all of those debts are non-dischargeable, they stay with the debtor until they're paid, but they are expressly not paid from exempt property. That is a quintessential policy judgment of Congress's to decide where to draw the line between deterring, not making bankruptcy a haven for those who seek to avoid their misconduct or engage in misconduct, but at the same time recognizing that taking someone's homestead -- taking someone's homestead in effect, with respect, does leave them without a home, and essentially-- Sonia Sotomayor: When he takes that $75,000 and assuming he doesn't pay debts with it and he invests it, what happens to the income on that investment? Is that exempt, too, from paying off his creditors? Matthew S. Hellman: --It's actually even less friendly to the debtor than that, Your Honor. Under California law -- and Federal law takes State law exemptions as it finds it absent a contrary Federal provision -- the debtor if he ever were to receive the $75,000, by law, California law, would have 6 months to reinvest it in a homestead. That's what California is doing. It's saying: We are going to give you the opportunity to reinvest and have a home. If it's not reinvested, it's not exempt, at least not for purposes of the Federal scheme going forward. If it doesn't retain its exempt character, then if he puts it in a bank account, that's not exempt; the interest and principal, both of those are available to satisfy any creditor who might -- who might be out there to whom he owes funds. Sonia Sotomayor: That's California, but that's not necessarily every other State. Matthew S. Hellman: Those States that give a homestead exception, and that's 48 of 50, all, with the exception of Pennsylvania and New Jersey, which use the Federal homestead exemption, all of those -- the vast majority of those States have a reinvestment principle. I know Illinois does, I know that several other States do as well, for just the reason Your Honor suggests. This money is not put away in a box such that it can't be touched again. The homestead exemption represents an opportunity for the debtor to have a home. That's what California law protects and California in its judgment decided to award. Ruth Bader Ginsburg: --Are you saying that he must spend the $75,000 on a new residence within how many -- what period of time? Matthew S. Hellman: 6 months, Your Honor. Ruth Bader Ginsburg: 6 months. And if at the end of 6 months he can't find a home at that price, then what happens? Matthew S. Hellman: California law says it needs to be reinvested within 6 months in a homestead. Otherwise it loses its exempt character. I'm not sure if there is any sort of waiver law that could be -- my understanding is 6 months is the time that he has. And that's California's decision. The Federal law doesn't have a contrary provision that would-- Ruth Bader Ginsburg: Then if 6 months runs, and he hasn't purchased a new home, then the $75,000 goes where? Matthew S. Hellman: --It is available to his creditors. Ruth Bader Ginsburg: They have been paid already. Matthew S. Hellman: That's right. And the way bankruptcy -- Congress has chosen to make the Bankruptcy Code work is that absent any sort of special award when -- when Congress has made the determination that a debtor is not liable for his administrative expenses once the bankruptcy case closes, even if there has been a denial of discharge. Congress has determined that, although a debtor will be on the hook for the debts that he brought into bankruptcy, he will not be on the hook for debts arising from the administrative expenses going forward, because I think Congress understood that those expenses might be out of the debtor's control and that a debtor ought not leave bankruptcy in a worse condition-- Ruth Bader Ginsburg: So then what you said before needs to be modified. He does get to keep the $75,000 because there is no creditors to be paid off from. Matthew S. Hellman: --The $75,000 is not protected from any creditor who might have a claim to it. That's all I meant to suggest, Your Honor. In this case his creditors have in fact been paid off and there is no sanctions award or other award that would-- Anthony M. Kennedy: When you say 100 percent? Matthew S. Hellman: --The -- his primary creditor was a judgment creditor who had a debt of $160,000; negotiated it down to $120,000 in exchange for being paid first. And I do mean 100 percent, yes. John G. Roberts, Jr.: So what you started with, oh, this is a terrible sanction, he's denied a discharge and all that, that doesn't mean a thing to him, does it? Because everybody's paid off. He doesn't have any debts. Matthew S. Hellman: This debtor does not have any remaining debts. Most debtors, however, because of the way the priority scheme works in bankruptcy, will be paying their administrative expenses first and have their obligations come second. And, of course, if there is a non-dischargeable debt, as I said, then even without a finding of non-dischargeability, those stay going forward. And I want to emphasize again that we are not talking here -- my friends on the other side suggest that this is sort of from a deep tradition of the inherent power of a court to sanction. This is not about that power. This is about the property from which a sanction award can be paid. There is no tradition supporting that award. And, of course, as this Court said in Owen v. Owen, where the code is clear -- and I don't think, with respect, it could be much clearer than saying not liable for any administrative expense, save in two situations not present here -- that is the code -- that is the language that controls. John G. Roberts, Jr.: I should know this, but who's going to get stuck with the extra couple hundred thousand dollars? Is that the trustee in an individual capacity or someone else? Matthew S. Hellman: It's really the trustee's law firm, which is an arm of the trustee. John G. Roberts, Jr.: They don't recoup that from anywhere else, right? They are on the hook for that? Matthew S. Hellman: That is correct, Your Honor. That is correct. Now, the primary authority-- Anthony M. Kennedy: Do they get a thank-you letter from the-- [Laughter] Matthew S. Hellman: --The primary authority that my friends on the other side used to support their reading of the statute is the Marrama case. And I want to emphasize, that case does not support the proposition that bankruptcy courts can violate specific provisions of the code if they believe equity warrants another result. In Marrama, the court was -- the Marrama majority was clear to note that no provision of the code expressly forbid the result that the court was going to allow, and that 105 -- Section 105 in that case was being used to accomplish something the code permits and to do it promptly rather than in a delayed fashion. This case is not about prompt versus delayed. This is about doing what the code expressly forbids. This case is not about what Section 105 allows. This case is about what section 522 expressly forbids. And, here, Congress has made the judgment, considering all the different turn mechanisms and policy interests at play, Congress has made the judgment that administrative expenses are not liable for any administrative -- exempt property is not liable for any administrative expense. Samuel A. Alito, Jr.: In the Malley case, Justice Souter said that if this is not what Section 105(a) was intended for, it's hard to see what Section 501(a) was intended for. I take it you just think he's flatly wrong. Matthew S. Hellman: We do disagree, Your Honor. The equities in that case, I suppose, are sharper in the sense that the debtor is leaving bankruptcy with more money than he otherwise would be able to have. But it is just as clear in that case that Congress has not made the exception that -- it's more than -- this is not a negative implication case. I want to stress that. It's not just that Congress hasn't put this on the list of things that can't be done. Congress has a flat-out prohibition the structure is not liable for any administrative expense or any prepetition debt, save in the enumerated circumstances. So, yes, with respect, I do think Malley was wrongly decided, and this Court need do nothing more than reaffirm what it has done for 80 years, which is to say that 105 gives bankruptcy courts the power to act. Our position is quite modest. We're only saying they can't do what the code forbids. Whether the code is -- whether they're acting interstitially or they're acting to carry out express provisions of the code, of course that's what 105 does. The scholars brief that is submitted on our side on pages 21 to 26 lists a bevy of practices that will -- that should and will continue unabated because they -- under Section 105 by bankruptcy courts to carry out the administration of justice, because there are things that the code does not expressly forbid. Elena Kagan: But, Mr. Hellman, (k) of course talks about exempt property. Matthew S. Hellman: Yes. Elena Kagan: Is there a possibility of reading the statute such that the exemption just never comes into effect? If you look at 522(l)-- Matthew S. Hellman: Yes. Elena Kagan: --(l) says, "unless a party in interest objects, the property claimed as exempt is exempt. " Now, that suggests that if the party in interest does object, there's a question about whether the party claimed as exempt is exempt. So -- so why isn't it a permissible reading of the statute to essentially say the court gets to decide whether this is exempt property such that (k) comes into effect, and in deciding whether it's exempt property, it can take into account the Petitioner's abuse of process? Matthew S. Hellman: Two points. Of course, no objection was ever lodged within the time period that rule-- Elena Kagan: Yes. I completely agree with that, but suppose one were. Matthew S. Hellman: --That objection -- that objection would not be well founded because it is undisputed that Petitioner is entitled to his homestead exemption under California law. California law says this is his home, he's lived there for the requisite amount of time, he has the equity, all of that. Congress later, in provisions that wouldn't apply to this case either, put some limits on a debtor's ability -- Federal limits on a debtor's ability to claim his homestead exemption; if money is poured into the home before declaring bankruptcy, Congress cut back on that a little bit. And I suppose you could have an objection on that basis. But this was not a case in which the Petitioner lost his exemption because he wasn't entitled to it. To the contrary, at page 69a of the appendix, the court observes this is the exemption to which he's otherwise entitled, but it's his -- the court found that his litigation misconduct warranted taking away what he was otherwise entitled to under Section 522(l) and protected by (k) and (c). Samuel A. Alito, Jr.: So you're saying a creditor could not have objected when your client claimed the exemption on the ground that the exemption is going to prevent the discovery -- the disclosure of the fraudulent nature of this mortgage. The creditor could not have objected to the exemption on that basis? Matthew S. Hellman: The objection was proper. So the answer to your question is yes, no objection -- no objection would have been proper in that situation because-- Samuel A. Alito, Jr.: And why is that? Matthew S. Hellman: --Because Section 522, the way it works is that the question is are you entitled to the exemption under State law. That's what Section 522(b), I believe, asks you to look at. And then there's a question of is an objection going to be interposed within the period provided by Section 522(l). Congress, of course, is free to create other limitations on a debtor's ability to claim exemptions. And as I said, they have done that in Section 522(o), Section 522(p), Section 522(q), which deals specifically, by the way, with situations in which the very filing of the bankruptcy case is a -- is an abuse of the code. And in that case, in Section 522(q), Congress ultimately decided that for debtors whose fraud -- and is convicted of a felony whose filing of the case shows that it's an abuse of the code, Congress decided in those cases that a debtor should not lose all of his exempt property. They put a cap in at $155,000, which, as Your Honor points out, is quite generous, quite generous given the median income of -- of the American family; and further stated that exemption could be tilted upward where necessary to support the debtor and his dependents. Not downward, no discretion to go downward, but can go upward, if necessary, in the bankruptcy court's view to support the debtor -- reasonably necessary to support the debtor and his dependents. So Congress -- so your question was could there have been an objection? The answer is no. And I would just say in passing that Congress has decided and has amended the statute several times to fine tune exactly when it is -- there ought to be or could be an objection to property validly claimed as exempt under State law. This is not one of those cases; far from it. And, again, I want to stress, this is not an argument from negative implication. This is not an argument from interstices. This is an argument from express and categorical prohibition. And if there are no further questions, I'll reserve the balance of my time. John G. Roberts, Jr.: Thank you, counsel. Matthew S. Hellman: Thank you. John G. Roberts, Jr.: Mr. Katyal. Speaker: Thank you, Mr. Chief Justice, and may it please the Court: The facts explain why the bankruptcy court exercised its discretion appropriately under both Section 105(a) and the longstanding inherent power of the court. Mr. Law committed a massive fraud on that court with the fake mortgage and fake documents. Petitioner lied repeatedly to the court, and then lied about his lies, all in an attempt to retain nonexempt property and equity in his home in contravention of the code. Section 105(a) was made for a case like this. It provides ample authority for what the bankruptcy court did, both in its first sentence, which uses a sweeping formulation of any order necessary or appropriate and as well as its second sentence which gives bankruptcy courts, quote, "the broad authority to take any action that is necessary or appropriate to prevent an abuse of process. " That is the language Marrama used to describe the second sentence, and it fits here perfectly. Sonia Sotomayor: My problem is -- my problem is that I read the sentence and it lops off its beginning. What the beginning says is "No provision of this title providing for the raising of an issue by a party of interest can stop a court from doing that. " An abusing process, presumably. So how could a party legitimately, whether the trustee or anyone else, make any claims to the exempt property? Speaker: Justice Soto-- Sonia Sotomayor: How can the Court do something neither the Bankruptcy Code nor any of its provisions permit the trustee to do? Speaker: --Justice Sotomayor, for precisely the reasons that both Marrama and Justice Souter in the Malley case suggested, which is at the second sentence fortifies-- Sonia Sotomayor: That's your strongest argument, that Justice Souter-- Speaker: --Well, it's at the second sentence fortifies the first; that is, the way to understand the second -- the power of the court and the orders that are necessarily appropriate. One such power is to remedy fraud upon the court, the abuse of process. That's what Congress used. Sonia Sotomayor: --My problem is that the code itself doesn't do that. It limits the access to the exemption to specified frauds, to frauds that result in a conviction. To amounts, it doesn't permit the exemption -- it -- it does away with the exemptions for an amount above 155. So if the code doesn't permit full recovery for fraud, why should a court be permitted to do it? Speaker: Well, of course, that provision wasn't in effect at the time. That's 522(q) which you are referring to. But we think 522(q) doesn't -- isn't violated here. Absolutely, you're right, Justice Sotomayor, if there were a violation of 522(q), 105(a) couldn't take that back. But the language of 522(q), which is found in the blue brief at page 19a of the appendix, just says that if there is a circumstance of a felony -- it doesn't even mention fraud -- but if there is a felony that occurs and -- in the filing of the petition, then it says that -- that you can't get more than -- you shall not exceed $156,000. It says nothing about the longstanding power of the court to depart downward and to give up to zero. It's just like a punitive damages cap. So Florida's punitive damages law says that if you have -- if you're the victim of medical malpractice or something, you can get up to $500,000. You shall -- your award shall not exceed $500,000. But of course, that doesn't take back the power of the factfinder to say you shall get nothing in a particular case. And this is a perfect illustration of a case in which a debtor should get nothing. Mr. Law tried to invoke the protections of the code while he repeatedly defied the obligations under the code at every turn. Sonia Sotomayor: Would you ask -- would you answer Justice Breyer's question? Does this power go to invading the other exempt properties, like an IRS? I'm assuming there are now invasion provisions for an IRS, but would this power permit the court to invade an -- not an IRS-- Stephen G. Breyer: An IRA. Sonia Sotomayor: --Thank you. An IRA. Speaker: Our argument here is just limited to this type of case in which you're lying about the underlying asset itself and trying to seek an exemption. I know the Solicitor General advances a broader argument, and I suppose that the Court can deal with that in an appropriate case. But here, Mr. Law undervalued his home and put all of these fake mortgages on, and then repeatedly submitted perjured documents to the court about the very exemption. And as Justices -- Justices Ginsburg and Alito said before, what's a Trustee to do in that situation except investigate? That's his duty under Section 704, to try and figure out what has happened. John G. Roberts, Jr.: Well, he'd have to investigate to the tune of half a million dollars chasing a much smaller amount that is at issue. Speaker: Well, I think, Mr. Chief Justice, that's the wrong way to look at it, with all respect. For one thing, of course, the -- the trustee's actions allowed title to be cleared and the underlying house to be sold for $680,000, paying off all the creditors. If Mr. Law's representations were accepted -- and this is something the Bankruptcy Court found at page 77 -- the trustee would have had to abandon the property altogether. That's $680,000 that nobody would have gotten. So that's the first thing. And the second thing is, of course, that when the trustee started his investigation and realized there was a fake mortgage, he would have never thought that this would have become, as you said, a half-million-dollar case. He would have thought, well, look, these documents prove this is a fraud. But what Mr. Law did in response was to take 19 separate appeals to -- you know, 14 to the bankruptcy appellate court, five to the Ninth Circuit. I mean, you know, I looked at-- Stephen G. Breyer: He behaved very badly, and in view of this, I agree with that. Why wouldn't -- or why didn't the -- or why couldn't the trustee simply sanction? I mean, you have apparently the authority here in 105 to sanction conduct abusive of the judicial process. That includes an order directing payment of expenses. Okay. I guess this is an expense. And that wouldn't be discharged, because it's a postpetition debt. So why not just do that? And even if he doesn't have money now, if he ever gets any he's going to have to pay it. So it looks as if there's an alternative way of payment. Speaker: --So two responses. First of all, as to the existence of an alternative sanction, I think this Court in Chambers was very clear in saying that doesn't displace other powers of the court. Stephen G. Breyer: No, it doesn't. But why, when you have pretty clear language saying this shall not be used for administrative expense-- Speaker: Because for-- Stephen G. Breyer: --and you have general language over here saying a general power to sanction, and you have an alternative way that's perhaps almost as good, why read the language that says no to say, well, yes? Speaker: --I want to respond to why there isn't an expressed prohibition in a minute. But just taking your point before, the reason is the facts of this case. That is, the sanction would only be paid out of postpetition debt. And I think there's a pretty good reason why my friend's brief on the other side is willing to entertain sanctions and the like, because he would engage in the same type of conduct that he has now, repeatedly stymying the court in the ability to try and get that $75,000 sanction, should it ever be imposed. And so that -- so sanctions come from postpetition assets. And that's I think one of the problems. Now, with respect to the bigger question, is there a prohibition somewhere in the code? We don't think there is. We don't think 522(k) says anything like what my friend said in his opening sentence, that this is somehow an express prohibition. We think that the language of 522(k) has to be read against three different things: The first, Section 105(a) and its sweeping language; second, something you never heard a word about in my friend's argument on the other side, which is the longstanding presumption that the protections of the Bankruptcy Code are meant for the honest but unfortunate debtor; and third, language in 522 which Justice Kagan alluded to which suggests that someone is not entitled to the right of an exemption, and the court can take it -- the court can refuse to provide it in the first place. Stephen G. Breyer: If he has the exemption, (k) says: "Property that the debtor exempts under this section is not liable for payment of any administrative expense. " That's why I thought it seemed a fairly definite no, unless you read the general knowledge and tradition to mean yes. Speaker: I think you have to read the language of 522(k), which was enacted in 1978, against the fact that Section 105(a) was on the books and indeed enhanced in 1978. Elena Kagan: I think that's a little bit backwards, right? Doesn't 105 exist to the extent that there's no prohibition saying otherwise? And then 522(k) comes in, and there's your prohibition. Speaker: No, because I think in order to understand what the prohibition was, you have to -- you have to look to 105(a); that is, what 105(a) does is it says, in general, you have this power. And indeed, 522(k), I think it speaks of the general case in which there isn't this type of excessive bad faith, fraud on the court. And so absolutely, I think in general, just as in Marrama itself, there's general language which says administrative expenses normally aren't liable. But in the atypical case, to use Marrama's words, a case like this in which the only way the code would work and functionally work is to incentivize trustees to try and uncover the fraud. Elena Kagan: So but then you're saying essentially that every provision in the Bankruptcy Code ought to be read with an addendum that says, "Except if there's an abuse of process. " Speaker: Your Honor, I think that's what generally both the Hunt prohibition and indeed the first line of Marrama says, which is that the basic idea of the Bankruptcy Code is to provide honest but unfortunate debtors a system of relief. And it misses the forest for the trees to essentially look with tunnel vision just at (k). (K) exists within a larger framework of background duties and obligations that a debtor must comply with. A debtor can't come in and say, oh, I've just met 522. It presupposes they've already met, for example, 5 -- Section 521, which is a truthful disclosure of assets and liabilities. And if you adopt Mr. Law's formulation, you're essentially saying that the main architect -- the main safeguard against this type of abuse, the trustee, is left holding the bag at the end of the day. The trustee is the only one here who acted, I think, appropriately, trying to uncover all of this, and he would be stuck with hundreds of thousands of dollars in attorneys' fees. Stephen G. Breyer: But couldn't the -- couldn't the bankruptcy judge just deny him, deny him bankruptcy? Speaker: Yes, he can deny him bankruptcy, but that doesn't solve the underlying problem that Mr. Law would still have $75,000 in assets that he is trying to seek under his exemption and the trustee has spent hundreds of thousands of dollars trying to unravel that scheme. Sonia Sotomayor: How do you limit in a principled way -- you say where you differ with the Solicitor General is that if an -- if an IRA had existed here, they would say that could be used. And you're saying, I don't need to go that far. That's on the facts. But on what theory would you limit recovery in those situations? Speaker: Well, we're not advocating for a limit, but I suppose if one -- if the Court wanted to find one, they'd find it in Chambers itself, which said that the inherent power of the court is something that could be exercised sparingly and only in extreme cases. And if -- if there is a situation in which, you know, if some sort of forfeiture was a massive amount compared to the underlying fraud on the court, that wouldn't be appropriate. That would be reviewed under abuse of discretion. All we are suggesting here-- Anthony M. Kennedy: That's hard to enforce. Every lawyer's case is an exceptional case. That's just the way it works. Speaker: --Well, but I think that's a problem that -- with Chambers itself, Justice Kennedy, and I think the courts have figured out ways to deal with that problem, by saying it's only reserved for the exceptional case and this is really truly that case. This is not just fraud on the Court, it's fraud on the Court squared. They're lying about the lies themselves. And the bankruptcy court can't work, it can't function if you don't have the trustee incentivized to under -- to undertake the kind of investigation that occurred here. My friend talks about denial of discharge or criminal penalties being ways to try and deal with this, but all of those sanctions depend on the action of the trustee to uncover the fraud in the first place. And when you have someone like Mr. Law, who's a serial liar to the Court, this isn't just bad faith, Justice Kennedy. This isn't just, you know, one document that is wrong by 5 or $10, this is repeated perjury to the Court. And that is the quintessential thing Section 105 is about when it talks about abuse of process. If you don't permit equitable forfeiture here, you are essentially giving effect to Mr. Law's abuse of process. With respect to the underlying-- Stephen G. Breyer: It made me think of a -- think of a bankruptcy petitioner who, in part, has a debt arising towards a creditor that consisted of the most frightful conduct you can think of. I mean, something really awful that he did to somebody. And yet that debtor can be excused, bankrupt, and keeps the $75,000. Now, while lying to a bankruptcy trustee is bad, it's not hard for us to think of conduct that's far worse. And yet, he can keep the $75,000. Why should -- why should this particular form of bad conduct allow the invasion of the homestead? Speaker: --For two reasons, Justice Breyer, because Section 105(a), as well as the inherent power of the Court deal with specifically this type of situation, abuse of process, fraud on the Court itself, not any type of prepetition conduct or anything like that. It's targeted to this. And, of course, the language in 522(q), which we were talking about earlier, is only about that prepetition conduct. It doesn't have -- so absolutely. Congress is free, if they want, to abrogate 105(a) or the inherent power of the Court and to say, look, if you've engaged in bad faith, fraud on the Court, whatever, you're still entitled to your exemption. That's not what it says. To the contrary, and this picks up on Justice Kagan's point earlier, 522(l) and (v) provide a mechanism to reject an exemption that is being sought. And here, that happened. 522(l) says -- and this is laid out at our brief at pages 38 and 39 -- if someone raises an objection to an exemption that a debtor is seeking, that exemption can be denied. Ruth Bader Ginsburg: I thought the objection had to be raised by a creditor within a certain time. Speaker: It doesn't-- Ruth Bader Ginsburg: I thought -- isn't there a provision that says, and if there's no objection, the exemption is what is claimed? Speaker: --522(l) doesn't say that. It refers to a party in interest, which could be a trustee as well. And so here, we think both the trustee objected in filing the motion for -- in 2006 as well as the Court itself. Section 105 has to be read alongside 522, and it provides the Court the sua sponte power to do so. There is a time limit, Justice Ginsburg, in Rule 403, but that time limit can itself be extended if, under the terms of the rule, if there's been a subsequent amendment of the underlying schedule. And here we think effectively, there was a subsequent amendment of the underlying schedule; that is, Mr. Law lied. And I think there's a very strong reason why the time limit shouldn't apply here. Imagine that a debtor took a fake set of exemptions and bribed the trustee to look the other way for 30 days. If that were discovered on day 45, I think it would be thoroughly implausible to think that you could -- that the debtor could get the underlying exemption, something that he bribed and lied about just because it didn't meet the 30-day requirement. Ruth Bader Ginsburg: Maybe you get it from the trustee. Speaker: I think that-- Ruth Bader Ginsburg: The faithless trustee. Speaker: --You might be able to go after the trustee as well, but I don't think that the underlying exemption would be given in that circumstance. It's a paradigmatic instance of both the 105(a) power as well as the inherent power of the Court. Anthony M. Kennedy: I recognize the problem that if you have sanctions, that he can't pay the sanctions and you're right back where you started. But are there cases in which there are sanctions imposed of an amount such as $75,000, $100,000? Speaker: Sure. There's been a -- there have been a number of cases, the red brief talks about them at page 32 going all the way back, in which the exemptions have been denied altogether for purposes of bad conduct. And we think this case falls within that. Samuel A. Alito, Jr.: Well, Mr. Hellman said that the creditor and, I guess, any other party could not object to the exemption on the ground that the house was burdened with a fraudulent mortgage. Do you agree with that? Speaker: I don't. I don't think anything in the language of 522(l) so restricts it. There are other provisions in the Code which say if an objection has been made, for example, to a creditor under Section 502, that the Court's power to deny that relief is circumscribed in 9 different ways. But there is no restriction on the power of the Court here. And that's why I think Justice Kagan's question gets at this point, which is 522(k) assumes that an exemption has been given, and there's a strong reason under the Code the Court is given the power to deny an exemption in the first place. Samuel A. Alito, Jr.: Do you have any authority that says that there could be an objection on that basis? Speaker: I think just the text at 522 itself says so. If there are no other questions. John G. Roberts, Jr.: Thank you, counsel. Ms. Harrington. Sarah E. Harrington: Thank you, Mr. Chief Justice, and may it please the Court: I'd like to start, if I could, by taking a little bit of a step back to note that outside of the bankruptcy system, an individual who runs up more debts than they can satisfy with their collective assets has no right to wipe out those debts while retaining some of their property in the face of unpaid assets. That right only comes from the Bankruptcy Code itself. But you only get that right if you follow the rules of bankruptcy. The Petitioner asked this Court to myopically focus on certain provisions of the Code and only provisions of the Code that actually benefit the debtor. But you have to look at any provision of the Code in the context of the whole Code itself because all the provisions are intended to work together. In this case, the surcharge order was necessary and appropriate to enforce provisions such as Section 521 and Section 704 of the Code. Section 521 imposes duties on debtors. Those duties include the duty to honestly disclose assets and liabilities, the duty to turn over property to the estate, to the trustee, and the duty to cooperate with the trustee throughout the case. Now, Mr. Law flouted all of those obligations, making it impossible to carry out the provisions of those parts of the Code without surcharging him in some way. Section 704 imposes duties on the trustee. Those duties include the duty to investigate the financial affairs of a debtor and the duty to collect the property of the debtor, reduce it to money and give that money to creditors. And the trustee doggedly pursued his duties under Section 704, but because of Mr. Law's bad faith litigation behavior, he imposed a great cost on the exercise of those duties. And so the Bankruptcy Court exercised its discretion to try to offset some of those costs by imposing a surcharge on what would have otherwise been exempt property of the debtor. Elena Kagan: Ms. Harrington, you clearly have the facts on your side. The question is whether you have the law. And -- and 522(k) says, as Justice Breyer said, "Property that the debtor exempts under this section is not liable for payment of any administrative expense. " Now, as I read your brief, you're essentially asking us to put the word "usually" in that provision. Is not usually liable. When is it -- when is it liable? It's -- it's liable when there are special circumstances dealing with debtor dishonesty. And where does that come from? Sarah E. Harrington: What we're asking to do is look at all the provisions of the Code together. And certainly, Section 522(k) expresses Congress's policy judgment that generally honest debtors should not have their exempt property used to pay administrative expenses. But as I've said, 521 and 704 express Congress's policy judgments about what debtors are supposed to do and what trustees are supposed to do. And Section 105 give -- gives Bankruptcy Courts authority to address very unusual circumstances that involve bad faith litigation conduct. So that's bad conduct in the litigation. I think that is an implicit exception to most of the general rules that are laid out in the Bankruptcy Code. In this case, it's really impossible for the Court to have carried out all of the provisions of the Code, but that's directly because of the debtor's behavior in this case, Petitioner's behavior. And so here in this extraordinary circumstance, the Bankruptcy Court addressed that bad faith litigation behavior by exempting what otherwise would have been -- by -- excuse me -- surcharging what otherwise would have been exempt property. John G. Roberts, Jr.: What is the -- you do have good facts on your side. But what if the offense is simply the failure to list a particular asset? Does that justify a departure from the usual rule? Sarah E. Harrington: I mean, if it's a negligent -- negligent failure to list the asset, then I don't think-- John G. Roberts, Jr.: You know, it's a -- it's a bank account that's held in, you know, a separate name or it's separate real estate. It's fairly common for debtors to leave off some assets they want to conceal. Is that, as a general rule, sufficient to justify this unusual authority? Sarah E. Harrington: --I think if they do it in such a way that then they spend the assets -- so the way this issue usually comes up, the way it's come up in most of the courts of appeals is that a debtor tries to hide a nonexempt asset and then wastes the asset in some way, usually by spending it, and then when it's discovered, this is how it came up in the Malley case in the First Circuit, then the Bankruptcy Court surcharges the exempt property to sort of compensate the estate for the wasted nonexempt property. And so I think that -- that's certainly, in our view, an appropriate exercise of authority under Section 105, because there, the debtor is trying to -- he doesn't necessarily exit the bankruptcy with more money than he would be entitled to, but he has more money during the bankruptcy and he spends that money-- John G. Roberts, Jr.: Well, then it -- then it becomes a not very unusual exercise of authority. It becomes pretty common since the concealment of nonexempt assets is a fairly -- I don't want to say it happens all the time -- but it's a fairly common situation. Sarah E. Harrington: --I don't think it happens terribly often, and when it does happen it isn't very often that the debtor spends the money that he's concealing. He's usually trying to keep the money. And so if it's discovered that he has hidden an asset that he should have turned over, then the Bankruptcy Court can merely order him to turn over the money, to turn over whatever the asset was. It only -- it is only necessary to surcharge what would otherwise be exempt property if that nonexempt asset no longer exists. Here, of course, it's a little bit of a different situation. This Petitioner imposed enormous costs on the estate, radically depleted the value of the estate by requiring the trustee to run up huge attorneys' fees in order to effectuate his duties under the code. Stephen G. Breyer: Is there any case law -- because 522 says in (b), it says "The following property may be exempt. " It doesn't say it has to be. So is there any case law where the debtor writes down, you know, a piece of property and a creditor comes in and says: He can't exempt that he has behaved outrageously, and it fits within the category, but he has behaved outrageously. Is there any case law that says under those circumstances the bankruptcy judge can refuse the exemption one way or the other? Sarah E. Harrington: None that I am aware of. And our view of the case is not so much that the exemption was denied in this case, but that the-- Stephen G. Breyer: I mean, you first have to get to the thing where the -- we are pretending to put the creditor, the bankruptcy judge, as if he were another creditor. The thing, the property, appears on a list that says exempt. And then the trustee or the judge says: No, I'm not going to let you exempt it. And that's basically what he's done. Sarah E. Harrington: --Well, the majority of the cases, it's not so much that there's been an objection to the exemption, so much as the exemption has been disallowed at the end of the case or surcharged. But I'm glad -- you know, in the hypothetical you posited, it's the creditor who is expending effort and potentially incurring attorneys' fees in order to expose a debtor's fraud. And in that case, those would not be administrative expenses, and you would think that, at least under the Court's inherent authority -- under-- Stephen G. Breyer: You see what I mean? Not only is it administrative expenses, but you have to somehow say, well, the judge is a constructive creditor, and he constructively objected. There are an awful lot of "constructive's" in that sentence that I just gave you. Sarah E. Harrington: --Right. And, again, that's not our view. Our view is that the exemption was disallowed, that the debtor is not allowed the benefit of the exemption. But if the creditor had been the one who ran up the attorneys' fees, he could certainly be paid under the court's inherent authority, as in Chambers v. NASCO, and it would be strange to think that the trustee is the only person who couldn't be paid in this sort of circumstance just for doing what the code tells him he has to do. Ruth Bader Ginsburg: Ms. Harrington, at the cert stage in this case, the Government suggested the distinction between two situations: One, an action by the debtor to remove property from the estate, leaving the creditors unsatisfied. And that's where you say this power of exemption can be taken away. And then the other side was where the creditors are paid in full and only the trustee's litigation expenses are at issue. Are you dropping that distinction? Sarah E. Harrington: No, Justice Ginsburg, I think -- I think the distinction we were trying to make was more what I was discussing with the Chief Justice, which is when a debtor wastes nonexempt assets and can't turn over, nonexempt property, can't turn it over to the estate, and so then is forced to turn over exempt property so that the surcharge doesn't pay attorneys' fees; it just compensates the estate, and by extension the creditors, for property that should have been turned over. Our suggestion was that this case, you could decide the case on a narrow grounds and it wouldn't necessarily resolve the issue in those other cases, because in this case the sanction was to pay attorneys' fees, which under a court's traditional inherent authority, a court can order one party to pay another party's attorneys' fees when it's in response to extraordinary bad faith litigation conduct. Now, even in Chambers v. NASCO, it's true that the Court was divided in that case, but it was mostly divided about whether the bad faith in that case was in the litigation or before the litigation. Here, there is really no doubt that all of the bad faith conduct in this case is in the litigation. And that's really a very traditional exercise of the court's inherent authority to sanction that type of behavior through attorneys' fees. I think it's important to note also in this case that the available remedies really are insufficient to deal with this debtor's misconduct. He suggests dismissal, discharge, and Rule 11 sanctions. Of course, dismissal wouldn't do anything to punish him because his creditors have been paid and he would just exit the bankruptcy with all of the exempt property he would have gotten if he had been honest. The same thing with discharge. He was denied a discharge of his debts, but then after that the trustee sold his house, and it sold for $300,000 more than he had represented it was worth. And so all the creditors were paid. And so that really had no practical effect in this case. It's also not clear that Rule 11 would be sufficient to fully compensate the Trustee for the expenses that have been incurred, because Rule 11 sanctions generally aren't available for matters on appeal. And as the record reveals, much of the expenses that were incurred in this place -- in this case resulted from the debtor's more than a dozen appeals to the Bankruptcy Appellate Panel and to the court of appeals. Elena Kagan: I'm not sure I understand that. Are you saying that the court could not just have fined him, let's say, $100,000 or however much he wanted, however -- whatever the costs were, and that he could get that out of the debtor's future earnings? Sarah E. Harrington: So our view is that he could have -- the court could have imposed a sanction, and that would not have been a prepetition debt, so it wouldn't have been discharged. And if the court had ordered the debtor to pay the money on pain of contempt, he could have enforced that order notwithstanding any State law provision that would have exempted the property after the bankruptcy. John G. Roberts, Jr.: Thank you, counsel. Mr. Hellman, you have 5 minutes remaining. Matthew S. Hellman: Thank you, Your Honor. Just a few brief points in rebuttal. I think from the litany of punishments that the Government has pointed to in this case, the question here is not whether a Bankruptcy Court can sanction a dishonest debtor. It can. The question is what sanctions has Congress forbidden or allowed. This is a case in which Congress has drawn a line and said exempt property may not be used to satisfy any administrative expense. My second point is that I think there may have been some confusion about what it is to claim an exemption under the Bankruptcy Code. If you look at Section 522(b) of the code, what you'll see is that a debtor is allowed to claim an exemption, may claim an exemption, under State law or Federal law, depending on the scheme that the State has opted into. The right to the exemption is a product of State law unless Federal law says otherwise. And Federal law has started to say otherwise in the Bankruptcy Reform Amendments of 2005. Congress saw a problem in 2005 where debtors were pouring money into their homesteads, then declaring bankruptcy, and then seeking to have all of that property be claimed as exempt. Congress amended Section 522 to deal with that problem, to place limitations on that type of misconduct. Congress has not created a generalized equitable discretion exception to Section 522. And I suggest that the reason it has not done that is because we're talking about exempt property, the core property of the debtor. And it would dramatically shift the power between trustee, as the Chief, as Mr. Chief Justice was suggesting, dramatically shift the power between the trustee and the creditors and the debtor if a debtor's homestead, pension, or wedding ring or other exempt property becomes fair game and at issue if the trustee makes a motion to suggest that the debtor hasn't behaved as forthrightly as the trustee claims he should have. And I want to stress again, at the risk of repeating myself, we are not talking about the traditional, venerable inherent powers of the Court to award attorneys' fees. There's a Rule 9011 in the Bankruptcy Code. It wasn't invoked here, shouldn't have been invoked here. But what we are talking about instead is the property from which that sanction can be satisfied. Congress has determined that exempt property cannot be used to satisfy administrative expenses. The worst prepetition conduct that one could imagine, say, in a couple of narrow circumstances -- Congress has made the choice here as to the status of exempt property. In the RadLAX case, in the Ginsberg case, and I'm not aware of any case to the contrary in between, Congress -- the rule in this Court is the specific provision controls. Here, Congress has spoken specifically, expressly, not by implication, but through prohibitive language saying that exempt property is not available to satisfy administrative expenses. For those reasons, we would ask the Court to reverse the surcharge order. Thank you. John G. Roberts, Jr.: Thank you, counsel. The case is submitted.